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U.S. National Administrative Office
Bureau of International Labor Affairs
U.S. Department of Labor
July 31, 1998
(Revised August 21, 1998)
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INTRODUCTION
The U.S. National Administrative Office (NAO) was established pursuant
to the North American Agreement on Labor Cooperation (NAALC), the labor
supplemental agreement to the North American Free Trade Agreement (NAFTA). The
NAALC provides for the review of submissions concerning labor law matters
arising in Canada or Mexico by the U.S. NAO. Article 16 (3) of the NAALC
states:
[e]ach NAO shall provide for the submission and receipt,
and periodically publish a list, of public communications on labor law matters
arising in the territory of another Party. Each NAO shall review such matters,
as appropriate, in accordance with its domestic procedures.
Procedural guidelines governing the receipt, acceptance for review, and
conduct of review of submissions filed with the U.S. NAO were issued pursuant
to Article 16 (3) of the NAALC. The U.S. NAO's procedural guidelines were
published and became effective on April 7, 1994, in a Revised Notice of
Establishment of the U.S. National Administrative Office and Procedural
Guidelines.(1) Pursuant to these guidelines,
once a determination is made to accept a submission for review, the NAO shall
conduct such further examination of the submission as may be appropriate to
assist the NAO to better understand and publicly report on the issues raised
therein. The Secretary of the NAO shall issue a public report that includes a
summary of the review proceedings and findings and recommendations. The review
must be completed and the public report issued within 120 days of acceptance of
a submission for review, unless circumstances require an extension of time of
up to 60 additional days.
The Public Communication on Labor Law Matters Arising in Mexico:
Election Contest Between Government and Independent Union (hereinafter
Submission No. 9703) was filed on December 15, 1997. An amended submission was
filed on February 13, 1998. The submitters are the Echlin Workers Alliance, a
group of unions from the United States and Canada, which includes the
International Brotherhood of Teamsters (IBT), the Union of Needletrades,
Industrial and Textile Employees (UNITE!), the United Electrical, Radio and
Machine Workers of America (UE), the United Auto Workers (UAW), the Canadian
Auto Workers (CAW), the United Paperworkers International Union (UPIU), the
United Steelworkers of America (USWA), IBT Local 745, UAW Locals 987, 2049,
428, UE Local 1090, UPIU Local 1056, USWA Locals 119A, 6363, 3590, and the USWA
Canadian National Office. An additional thirty U.S. and Mexican union, human
rights and non-governmental organizations are cited as concerned parties in the
submission. The NAO accepted Submission No. 9703 for review on January 30,
1998.
Submission No. 9703 raises issues of freedom of association and health
and safety, at the ITAPSA export processing plant in Ciudad de los Reyes, in
the State of Mexico, Mexico. ITAPSA is a subsidiary of Echlin Inc., a U.S.
corporation with headquarters in Branford, Connecticut, that produces and
distributes automobile replacement parts in the U.S., Canada, and Mexico.
Echlin has several plants in Mexico, including the ITAPSA plant. The ITAPSA
facility employs approximately 350 people and exports to the U.S., Canada,
Europe, and South America.
The submitters argue that Mexico has failed to enforce its laws
relating to freedom of association and the right to bargain collectively
through appropriate government action, in violation of NAALC article 3(1).
Specifically, they maintain that Mexico has failed to enforce ILO Convention 87
on freedom of association; Article 22 of the International Covenant on Civil
and Political Rights; Article 23(4) of the Universal Declaration of Human
Rights; Article 8(1) of the International Covenant on Economic, Social and
Cultural Rights; Article 123 §§ XVI (freedom of association) and XXII
(unjustified dismissal) of the Mexican Constitution; Mexican Federal Labor Law
(FLL) Articles 133 (prohibited practices of employers); 671 (obligations of
worker and employer representatives on the CAB); 892-899 (special procedures to
determine the collective bargaining representative -titularidad); and
931 (procedures for conducting elections for the collective bargaining
representative).
The submitters further argue that Mexico has failed to enforce its laws
that protect workers against dangerous health and safety conditions on the job.
In particular, they argue that Mexico has failed to ensure that ITAPSA provide
proper equipment and ventilation to protect workers from dangerous chemicals
such as asbestos; has failed to conduct adequate safety inspections of the
plant; and has failed to ensure that ITAPSA give regular medical evaluations to
employees exposed to dangerous chemicals. The submitters argue that, in failing
to take appropriate action, Mexico is in violation of Conventions 155 and 161
of the International Labor Organization (ILO); Articles 509, 511, 512 and 512-D
of the FLL; and the Federal Regulation on Workplace Safety and Health
(RFSHMAT).
The submission also raises issues of compliance by Mexico with its
procedural obligations under the NAALC. The submitters argue that Mexico has
not complied with Article 5(4) of the NAALC which obligates the parties to
ensure that their labor tribunals are impartial and independent.
SUMMARY OF SUBMISSION 9703
- Case Summary
According to the
submitters, workers at the ITAPSA facility were concerned about unhealthy and
unsafe working conditions at the plant. A number of their fellow employees had
died or become seriously ill. According to the submitters, workers were forced
to handle asbestos and other toxic materials without proper protection and
ventilation. The workers were also concerned about low wages, abusive
supervisors, sexual harassment, and the failure of their local union to respond
to these problems. When the workers attempted to change their union
representation to another union in order to address these concerns, they
reportedly faced intimidation and harassment from the company and the existing
union, including threats of physical violence and job loss.
According to the submitters, the plant is currently organized by
Section 15 of the Confederation of Mexican Workers (Confederación de
Trabajadores Mexicanos - hereinafter CTM). The CTM is the largest labor
union organization in Mexico and is closely associated with the dominant
political party, the Institutional Revolutionary Party (Partido Instiuticional
Revolucionario), hereinafter, the PRI. Though most of the workers at the plant
knew that a union was in place, they did not have copies of the collective
bargaining agreement that had been signed.
The submitters assert that in 1996 the Union of Metal, Steel, Iron,
and Allied Workers (Sindicato de Trabajadores de la Industria
Metálica, Acero, Hierro, Conexos y Similares, hereinafter STIMAHCS)
began a union organizing campaign at the plant and filed a petition for
representation on May 26, 1997. According to the submitters, after the STIMAHCS
organizing effort began, both the employer and the CTM began a campaign of
intimidation against the workers who supported this effort, including
surveillance of workers both within and without the plant, shift changes to
punish STIMAHCS supporters, and increases in the workload of selected
employees. The submitters allege that approximately 50 workers were subjected
to retaliatory discharge for their support of STIMAHCS.
The Federal Conciliation and Arbitration Board (Junta Federal
de Conciliación y Arbitraje - hereinafter CAB) with jurisdiction
scheduled a representation election for August 28, 1997. According to the
submitters, the labor member on the CAB comes from the CTM and was, therefore,
inherently biased in favor of the CTM and against STIMAHCS in the subsequent
proceedings. The submitters allege that the CAB postponed the election without
informing STIMAHCS with the result that many of the STIMAHCS supporters showed
up to vote before being informed of the postponement and were then filmed by
individuals in a parked car and observed by a security guard. According to the
submitters, about twenty workers were fired on this day and fifty were
dismissed altogether for their support of STIMAHCS. Twenty-two filed claims for
reinstatement with the Federal CAB. The remainder of the fifty did not pursue
their cases and opted to take the severance pay the company offered.
The election was rescheduled for September 9, 1997. The submitters
allege that on the day before the election, Echlin divisional Manager Guillermo
Vela Reyna suggested to workers that they vote for the CTM union and that if
STIMAHCS won they would suffer the consequences. The submitters also allege
that, on that same date, workers observed a police agent distributing arms and
armed men were observed patrolling the factory grounds.
The submitters maintain that the representation election was
plagued by irregularities, including (1) the inability of workers who pledged
support for STIMAHCS to enter the voting premises; (2) the use by the company
of approximately 170 armed thugs to intimidate the workers against voting for
representation by STIMAHCS; (3) the use of an open rather than secret ballot,
which obliged the workers to state their union preference in the presence of
government officials, company representatives, CTM representatives and armed
thugs; and (4) manipulation of access to balloting so as to allow nonworkers to
participate. According to the submitters, the CAB representatives who were
overseeing the election refused to order its suspension despite the clear
atmosphere of intimidation and other irregularities. The final vote tally was
179 for CTM Section 15 to 29 for STIMAHCS.
Following the election, the CAB scheduled a hearing to review the
results of the election and consider allegations of illegal conduct. According
to the submitters, neither STIMAHCS nor its supporters received notice of the
hearing. STIMAHCS filed an amparo appeal with the Federal Court
claiming a violation of its rights by the CAB.(2) The Court held that the appeal was premature as
the CAB had not yet issued a final decision on the case. The Court declined to
hear the appeal until then. On December 4, 1997, the CAB issued its decision
confirming the results of the election in favor of CTM Section 15. STIMAHCS
filed an amparo appeal against this decision with the Federal Court on
February 25, 1998. The Court found in favor of STIMAHCS in a decision issued in
June 1998, and ordered the CAB to conduct another hearing, now scheduled to be
held in August 1998.
According to the submitters, the CAB ordered the reinstatement of
eleven of the discharged workers on November 21, 1997. Initially, ITAPSA
management agreed to comply but when the employees attempted to return to work,
they were barred from entry by security guards. They were informed that their
reinstatement had been blocked by the CTM in retaliation for their support of
STIMAHCS.
The submitters also allege that on December 15, 1997, a group of
eight ITAPSA employees, two union organizers, and two observers traveled to the
American Brakeblock factory in northern Mexico City, which is also owned by
Echlin, to protest and distribute leaflets to employees on the events at
ITAPSA. After being warned to leave by the local CTM representatives, they were
assaulted and beaten by a group of seven men. Police who were summoned refused
to take any action after the attack. One worker was subsequently fired by
American Brakeblock after he filed a criminal complaint against American
Brakeblock for this incident.
- Issues
- Freedom of Association
The
submitters argue that Mexico is in violation of NAALC Article 3(1) in failing
to enforce its labor laws on freedom of association through appropriate
actions. In failing to enforce its labor laws, the submitters argue that Mexico
is also in violation of the country's Constitution, which protects freedom of
association, and ILO Convention 87 on freedom of association, which Mexico has
ratified.
The submitters also argue that the Mexican government continues
to countenance the lack of public registries and the dismissal of workers under
the exclusion clause, which violate freedom of association and are contrary to
NAALC Articles 1(d), 1(g), 3(1)(d), 7, and Annex 1.
Finally, the submitters argue that Mexico is not in compliance
with its procedural obligations under NAALC Article 5(4) to ensure impartial
labor tribunals.
- Workplace Safety and
Health
The submitters argue that Mexico is in violation of NAALC Article
3(1) in failing to enforce its labor laws on safety and health in the
workplace. By failing to enforce its safety and health laws, the submitters
assert that Mexico is also in violation of ILO Conventions 155, 161, and 170,
which Mexico has ratified.
- Action Requested
The
submitters request the following relief:
(1) That the NAO initiate a review of the matter pursuant to
Article 16 of the NAALC;
(2) that the NAO hold a public hearing on the matter;
(3) that the Mexican labor authorities obtain reinstatement for
discharged workers;
(4) that the Mexican labor authorities ensure that the freedom of
association rights of workers of ITAPSA are respected;
(5) that ITAPSA be required to comply with requirements regarding
safety and health;
(6) that the Mexican labor authorities develop specific guidelines
and rules to ensure the right of freedom of association of workers;
(7) the establishment of a public registry of unions and contracts;
(8) a determination that the application of the union exclusion
clause in union representation elections is violative of Mexican and
international law;
(9) that the U.S. NAO recommend ministerial level consultations if
the relief outlined above is not obtained;
(10) that the U.S. NAO recommend the establishment of an Evaluation
Committee of Experts (ECE) if relief is not obtained under ministerial
consultations;
(11) that the U.S. NAO recommend the implementation of disputes
resolutions procedures under Part V of the NAALC if an ECE does not provide the
relief requested;
(12) that the U.S. NAO grant further relief, including convening an
arbitral panel and the levying of monetary enforcement, if appropriate.
NAO REVIEW
In conducting its review, the NAO considered information from the
submitters, the employer, and the Mexican NAO. A public hearing was conducted
in Washington, D.C. on March 23, 1998.
- Information from the
Submitters
Submission No. 9703 was filed on December 15, 1997. The
petitioner's First Amended Submission with supporting affidavits was filed on
February 13, 1998.(3) The NAO engaged in a
teleconference and telephone conversations as well as written correspondence
with the submitters in order to obtain additional information.
- Information from Mexican
NAO
The U.S. NAO requested information from the Mexican NAO on
freedom of association and safety and health as they apply to the instant
submission, by letter on March 4, 1998.(4) The
Mexican NAO responded by letter dated April 23, 1998 providing information on
Mexican law and practice on freedom of association and safety and health as
well as the facts of the instant submission.(5)
The Mexican NAO stated that the official records of the CAB with jurisdiction
indicated that the allegations made by the submitters of violence and
intimidation at the election are untrue.
- Information from the
Employer
The U.S. NAO requested information from both Echlin and
ITAPSA in letters dated March 4, 1998.(6) Echlin
responded on behalf of both by letter dated March 18, 1998.(7) Echlin stated it had contracted a third party
observer to monitor the election and that the observer reported that the
representation election was free of harassment and intimidation and that the
vote was carried out without pressure or violence. Echlin also stated that
ITAPSA did not hire armed agents but that CTM supporters armed themselves in
response to intimidation by a large group of STIMAHCS supporters. Further,
Echlin stated that, contrary to assertions by the submitters, it was STIMAHCS
representatives who intimidated workers. Finally, Echlin asserted that
allegations of the dismissal of fifty employees were false, but that eleven
workers who alleged wrongful termination were reinstated by the company to
their former positions. However, following a request by the union for their
dismissal pursuant to the collective bargaining agreement and Article 365 of
the FLL(8), they were removed from employment.
Finally, Echlin stated that ITAPSA is regularly visited by safety and health
inspectors and that it is in full compliance with health and safety laws.
- Public Hearing
The U.S. NAO
conducted a public hearing in Washington, D.C. on March 23, 1998. Notice of the
hearing was published in the Federal Register on February 20, 1998.(9) Fifteen witnesses testified at the hearing,
including representatives of the submitters, two of the workers involved in the
case, two Mexican labor attorneys, and an expert on workplace safety and health
in Mexico.
- Post Hearing Submission
The submitters filed a post-hearing brief on May 25, 1998, elaborating on
their arguments. The submitters provided information establishing the
credentials of Dr. Francisco Mercado Calderón, the safety and health
expert who testified at the hearing. (10) The
submitters also submitted a Report on Violations of Human and Labor Rights
in Mexico During 1997.(11)
The International Association of Democratic Lawyers submitted a
report to the NAO on April 1, 1998, on its own review of the events that took
place at ITAPSA. The report also included information on the Han Young case(12) and that of the Mexican Petroleum Workers
Union (PEMEX).
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Footnotes
1. 59 Fed. Reg. 16660-16662 (1994).
2. An amparo is the legal instrument by which a
person or legal entity seeks the protection of the courts against violations of
constitutional protections by government authorities or their agents.
3. The two documents are on file with the U.S. NAO.
4. Copy on file with the U.S. NAO.
5. Copy on file with the U.S. NAO.
6. Copies on file with the U.S. NAO.
7. Copy on file with the U.S. NAO.
8. FLL Article 365 is not relevant. FLL Article 395 is
referred to as the Exclusion Clause, provides that a collective bargaining
agreement may require the employer to hire only workers who are members of the
representative union in the plant. The clause can also require that the
employer dismiss from employment any worker expelled by the union.
9. 63 Fed. Reg. 8690 (1998).
10. On file with the U.S. NAO.
11. Centro de Reflexión y Acción Laboral
de Fomento Cultural y Educativo, A.C., Derechos Humanos Laborales en
México: entre la imagen protectora y una política de
represión, Informe de violación de los Derechos Humanos Laborales
en México, durante 1997, (Mexico, March, 1998).
12. See U.S. Department of Labor, Bureau of
International Labor Affairs, U.S. National Administrative Office, Public
Report of Review of NAO Submission No. 9702, (April 28, 1998).
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