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5. WORKPLACE SAFETY AND HEALTH

   1. NAALC Obligations and Mexican Labor Law
      1. NAALC Obligations

         The provisions of the NAALC on safety and health in the workplace that are relevant to this submission are: (1) Article 1 of Part One which lists the objectives to which the Parties commit themselves; (2) Article 1(b) which commits the Parties to the promotion, to the maximum extent possible, of the labor principles set out in Annex 1; (3) Article 1(g) which commits the Parties to "foster transparency in the administration of labor law"; (4) Annex 1 which lists eleven labor principles that the Parties are committed to promote, including the ninth principle which commits the Parties to prescribing and implementing standards to minimize the causes of occupational injuries and illnesses; (5) Article 3(1) which commits the Parties to effectively enforce their labor law through appropriate government action; and (6) Article 5(1) which commits each Party to ensure its administrative, quasi-judicial, judicial and labor tribunal proceedings for the enforcement of its labor law are fair, equitable and transparent.

      2. Relevant Mexican Law on Safety and Health
         1. Federal Labor Law (FLL)

            FLL Article 133 VII prohibits employers from taking any actions that restrict workers in the exercise of their rights under the law. FLL Article 509 requires that safety and health committees be established in each workplace. Article 511 specifies the duties of labor inspectors. Articles 512 and 512D require that business establishments comply with safety and health laws and comply with orders from the labor authorities to modify their establishments in accordance with the law and regulations, providing for increased financial penalties in the case of failure to comply with corrective measures.

            Workplace inspections are carried out by the Inspectorate of Labor (Inspección del Trabajo) of the STPS and supported by the respective state governments. Article 541 of the FLL charges the Inspectorate of Labor with responsibility for supervising compliance with labor standards, including those protecting safety and health in the workplace.⁽⁷⁸⁾

            FLL Articles 992 and 994-V specify the basis for the calculation of financial penalties and provides that penalties may be doubled in the case of failure to undertake corrective action.

         2. Federal Regulation on Safety, Health, and the Workplace (RFSHMAT)

            The Federal Regulation on Safety, Health and the Workplace (Reglamento Federal de Seguridad, Higiene y Medio Ambiente de Trabajo), hereinafter the RFSHMAT, implements the safety and health provisions of the FLL and establishes the rules and procedures for the enforcement of safety and health standards.⁽⁷⁹⁾ The RFSHMAT is intended for application throughout Mexico and has as its purpose the establishment of measures necessary for the prevention of workplace accidents and illnesses. The objective of the RFSHMAT is to ensure that work takes place under conditions of safety and health that are appropriate for workers and in accordance with the Federal Labor Law and international treaties ratified by Mexico.

            The RFSHMAT consists of six titles and 168 articles, namely Title One (general dispositions and obligations of employers and workers); Title Two (workplace safety standards); Title Three (workplace health); Title Four (workplace safety and health organizations); Title Five (protection for minors and pregnant or nursing women); and Title VI (compliance, inspections, and administrative sanctions).

            RFSHMAT Articles 3 through13 address the development and enforcement of standards on the full range of safety and health issues. The standards are known as the Official Mexican Standards (Normas Oficiales Mexicanas), hereinafter NOMs. There are more than 120 NOMs which cover matters ranging from specific hazards to technical specifications for protective and monitoring equipment and analytical methods. NOM Nos. 9 and 10 are particularly relevant to this submission. NOM # 9 addresses hazardous materials handling. NOM # 10 addresses standards for toxic substances, designates asbestos as a carcinogen, and restricts the asbestos levels that may exist in the workplace.

         3. Administrative Procedures

            Procedures for administrative actions conducted by the Federal Government, including workplace health and safety inspections, fines, and appeals, are established in the Federal Law on Administrative Procedures (Ley Federal de Procedimiento Administrativo), hereinafter LFPA. This law establishes procedures for enforcement actions by the executive branch.

            Internal procedures for the conduct of inspections are included in the Internal Regulation of the Secretariat of Labor and Social Welfare (Reglamento Interior de la Secretaría del Trabajo y Previsión Social - RISTPS). The Federal Labor Inspection Regulation (Reglamento de Inspección Federal del Trabajo-RIFT) specifies the duties and responsibilities of inspectors in conducting inspections.

            The Regulation that Establishes the Procedures for the Application of Administrative Sanctions for Violations of the Federal Labor Law (Reglamento que Establece el Procedimiento para la Aplicación de Sanciones Administrativas por Violaciones a La Ley Federal del Trabajo - REPASA) provides specific guidelines for the assessment of penalties for violations of the laws and regulations on labor matters.

            The Mexican NAO provided detailed information on the process by which workplace inspections and the application of sanctions take place.⁽⁸⁰⁾ The Inspectorate of Labor conducts workplace inspections for general working conditions as well as occupational safety and health. Inspections for general working conditions focus on such matters as the compliance with legislation and regulations with respect to wages, bonuses, the length of the work day, vacations, profit sharing, and training. Inspections for safety and health monitor such items as the presence of contaminants in the working environment, the installation of safety devices on machinery and equipment, security measures for pressurized containers and steam generators or boilers, fire prevention, and first aid.⁽⁸¹⁾

            There are four categories of inspections: (1) initial, or first time inspections, when a workplace first opens for business or when a company changes its name and/or address; (2) regular, or periodic inspections, conducted at standard intervals; (3) follow-up, or verification inspections, to confirm employer compliance with improvements and modifications ordered by the inspectors during the initial or periodic inspection; and (4) special inspections to investigate suspected violations or in response to the request of other authorities.⁽⁸²⁾

            Inspections may be conducted by the local office of the STPS or by the state STPS. ITAPSA is under Federal jurisdiction and inspections were conducted by the Federal Inspectorate of Labor of the STPS. Inspection schedules are prepared in advance in accordance with an annual program, but may also take place in response to requests of other government agencies or complaints by workers. Inspections must be authorized by the appropriate authority, but can take place without prior notice. However, access to the facility without prior notice is not obligatory in the absence of the employer or his legal representative. Therefore, in order to ensure the effectiveness and efficacy of an inspection, prior notice is usually given to ensure that access to the workplace will be obtained and that the required documentation and records will be made available to the inspector. The frequency of inspections may be increased in cases of workplaces where compliance has been a problem, and reduced in cases of workplaces that have demonstrated a positive record of compliance.⁽⁸³⁾

            According to the Mexican NAO, a written report, prepared at the site and time of the inspection, specifies the violations encountered. It also provides a time period within which corrective action must be implemented for those items requiring corrective action. The report is filed with the Inspectorate of Labor for the region and a hearing before the local STPS office is scheduled. Usually, the respondent has fifteen days within which to appear before the authority. At the hearing, the respondent is given the opportunity to present evidence in his defense and in mitigation. The hearing officer determines whether a fine should be levied and the amount of the fine. The amount of the fine depends on the seriousness of the violations, special circumstances, the harm done to workers, the economic condition of the company, and other considerations. If the respondent fails to appear at the hearing, a judgement imposing the fine may be issued.⁽⁸⁴⁾

            A verification inspection is then conducted and confirms whether corrective action was implemented in accordance with the earlier inspection. A report on uncorrected violations is forwarded to the administrative authorities where the proceeding is the same as outlined above. If the respondent is found to have failed to abate the deficiencies, additional fines may be imposed. Fines may be imposed whenever a verification inspection shows that a violation remains unabated and will be doubled if the violation continues unabated.⁽⁸⁵⁾

            A respondent has the right to appeal any penalties by (1) requesting a review by the administrative authorities within fifteen days of the order imposing the penalty; (2) requesting the dismissal of the fine before the Federal Fiscal Tribunal (Tribunal Fiscal de la Federación) within forty-five days of the order imposing the penalty; and (3) through an amparo appeal in the appropriate court.

            Notwithstanding any of the above, if violations of safety and health laws and regulations persist in the workplace, the STPS may initiate procedures for a partial or complete closure of the facility. Labor inspectors, themselves, do not have the authority to impose fines or close a facility. This authority resides with the appropriate STPS office Fines are collected by local offices of the Secretariat of the Treasury.⁽⁸⁶⁾

            According to the Mexican NAO, 293 safety and health inspections were conducted in the State of Mexico during 1997. Sanctions were imposed in 114 cases totaling Pesos 336,822.90 (U.S.$42,100 approx.). ⁽⁸⁷⁾

         4. Safety and Health Committees

            RFSHMAT Articles 123-126 implement FLL Article 509 and provide for the establishment and functioning of Safety and Health Committees at the workplace. These committees must be established within thirty days after an establishment opens for business or after the RFSHMAT came into effect. The duties of the workplace committees include the investigation of workplace accidents and illnesses, the supervision of compliance with the RFSHMAT and the NOMS, and proposing preventive measures to management.

   2. International Labor Organization Conventions And Standards on Safety and Health

      The International Labor Organization has developed and enacted a number of international conventions addressing occupational safety and health. Conventions 155, 161, and 170 have been ratified by Mexico and are relevant to this submission, as is Recommendation 164.

      Convention 155: Occupational Safety and Health, 1981, aims to establish in each Party a national policy on occupational safety, occupational health and the working environment, and promote communications and cooperation at all levels in this area. The convention requires the parties to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment. Convention 155 applies to all branches of economic activity (with a few specific exclusions) and lays down a series of detailed provisions concerning action at the national level and at the level of the undertaking. The convention provides for the adoption of laws or regulations or any other appropriate method (including training), for the operation of a system of inspection and measures to be taken, and requires that employers shall be required to supply protective clothing and protective equipment to workers. Finally, the convention provides that workers and their representatives shall cooperate in the fulfillment of the obligations placed on the employer, but also provides that workers who remove themselves from a work situation where they have reasonable justification to believe they are in imminent and serious danger, shall be protected from undue consequences.

      Convention No. 161: Occupational Health Services, 1985, aims to maintain safe, health, and well-adapted working environments to promote the physical and mental health of all workers by means of a preventive service. The convention calls for the establishment of occupational health services with preventive and advisory functions within the framework of a national policy. This policy should be developed through consultations with the most representative organizations of employers and workers. Safety and health services may be organized by undertakings or groups of undertakings, by public authorities or social security institutions, or by any other competent body. Employers, workers, and their representatives should cooperate and participate in the implementation of these services. The tasks of the services include the identification and assessment of risks from health hazards in the workplace by surveillance of the working environment and working practices, as well as workers' health in relation to work; technical advice; training and education; first aid; analysis of occupational accidents and diseases; and vocational rehabilitation.

      Convention No. 170: Chemicals, 1990, aims to reduce the incidence of chemically induced illnesses and injuries at work. The convention calls for detailed regulations concerning classification systems of chemicals, their labeling and marking, chemical safety data sheets, and the responsibilities of suppliers and those of employers, particularly with regard to the identification of chemicals, their transfer and disposal, the exposure of workers, as well as information and training. Convention 170 provides that workers will cooperate with employer efforts in this regard, but also that they shall have the right to remove themselves from danger.

   3. Analysis

      Submission No. 9703 describes a workplace with a high level of airborne contamination including asbestos dust and fumes from solvents; high noise levels; inadequate ventilation; inadequate personal protective equipment (PPE); no health and safety plan; lack of lockout/tagout program for machinery; malfunctioning machinery; inadequate fire prevention measures; defective electrical wiring; inadequate medical exams the results of which the workers did not have access to; inadequate labeling of chemicals; and no written safety information provided to workers. Exposure to asbestos dust and fumes produced by other hazardous material used in the manufacture of brakes were a major concern to the workers of the plant when they began their organizing effort. The health hazards posed by toxic chemicals are well documented and the subject of several international conventions of the International Labor Organization (ILO), particularly Convention No. 170 which addresses the labeling of hazards and exposure levels.⁽⁸⁸⁾ Substances such as asbestos, naptha, graphite, toluene, and barite, all identified by STPS inspectors at ITAPSA, are considered toxic and subjected to considerable regulation by the Mexican STPS under the RFSHMAT.

      In support of their allegations, the submitters obtained written affidavits of several workers at the plant who described the health and safety conditions. Mr. Rubén Ruíz Rubio stated:

      When I worked in the department, everyday I was always around dust. There was dust everywhere, from asbestos and the other materials we worked with. We would sweep the dust up once at the end of the shift, but there was not time to do it during our shifts. In addition, there was water vapor that was constantly coming out of the steam heated machines. It made the floor wet, slippery and dangerous. In addition, there was oil and other vapors that always leaked. With the high level of noise in the shop and the mixture of vapors and dust where we could hardly see and concentrate. It was dangerous.⁽⁸⁹⁾

      Ms. María Trinidad Delgado Navarro described noise levels:

      There is a lot of noise in the plant. In order to get earplugs, you have to demand and demand that they be given to you. The company always responded with excuses, saying that they didn't have them, asking us how we were going to be able to hear to do our work properly, etc. The noise gave me headaches, and brief periods of hearing loss. Also, after work sometimes my ears would ring. Since I stopped working in this environment my hearing has improved.⁽⁹⁰⁾

      Mr. José Eugenio Nájera Vázquez described airborne contamination and the poor ventilation:

      The process would create some small particles and a lot of larger thick grainy pieces coming off the brake pads. This material was usually asbestos-based coming from the asbestos-based pads, but sometimes I would drill the non-asbestos metal-based pads. We would end up breathing this dust, because the masks didn't work well and the dust would get in. It would also get in our eyes. We were given safety glasses, but it was difficult to see with them on and I was afraid that I would drill my finger. Also it was easy to drill too far or in the wrong place and ruin a brakeshoe or hurt the drill bits. When we would break drill bits the supervisors would yell at us.⁽⁹¹⁾

      Ms. Delgado described the solvents used in the manufacturing process:

      Then this basket goes into the machine, and the washing process begins. When the washing process is being carried out, the solvent that is in a kind of drum about two meter deep, or a meter and a half deep, that drum has to be filled at three quarters to be able to do the washing. So it goes in and the machine begins balancing, then the solvent falls outside of the machine and it sprinkles the clothing of the people nearby. This solvent is called toluene. And it falls onto the clothing of the people present there because there's very little space to move around there.⁽⁹²⁾

      She went on to describe the effect of the solvent and fumes on the workers:

      Lately my former colleagues have told me that the brand and color of this adhesive has changed. Now it's black, very strong smell, but it has really affected my colleagues. Some of them their hands -- they have had some kinds of little blisters on their skin, and at the same time the skin is sort of coming off, so it has been worse than the previous material.

      After many hours of working in this place, after working there five hours or more, one starts feeling affected. One's body is affected. You start feeling nauseous. You start getting headache and feeling dizzy. So of course your movement becomes more difficult, and due to the lack of space in the area you tend to sort of hit yourself.⁽⁹³⁾

      Mr. Ruíz described personal protective equipment as follows:

      The ear plugs were not sufficient or good enough, the gloves are short gloves, they're made of very thin plastic material -- it's the kind of gloves that women use when they do their dishes and we have to work with asbestos, and we've got to put our whole bodies in so that we can grab the material that's used in processing these various parts. Our goggles -- safety goggles are plastic. They're not sturdy enough, they're not hermetic enough. We get dust into our eyes which is very irritating.

      The masks are also made of cotton, very simple, very thin. After two days they're totally blackened and in many cases we just have gotten fed up asking for new masks and we were told we can't give you new masks because not enough time has gone by -- it's something we do only every two weeks, and the company cannot provide you with masks every time you ask for them. You've got to wait for two weeks until you get a new supply of masks.

      Our uniform -- work uniform -- well, we had no laundry system, so we had to wash these uniforms at home, but we had no information and we just put them in our clothes washer together with our family laundry, and we didn't know that that was a bad thing to do.⁽⁹⁴⁾

      Mr. Ruíz described accidents that took place caused by defective machines and inadequate, or malfunctioning, safety devices:

      There have been accidents in my department that have been caused by the poor conditions at work and the defective machines. My friend Marco Antonio Fuentes was seriously injured several years ago when this occurred. He had set down the chunk of metal he used to tap his iron bar under the molds on the bottom part of the press. He was leaning down when the piston went off spontaneously and shot the piece of metal out of the press and it hit him in the forehead. They took him to the emergency room and he was in the hospital fifteen days after that. When Marco returned to work he had lost control of some of the muscles of his face, like he had had a stroke.

      I also remember vividly another case that happened the first day I worked in the plant, July 7, 1994, when the same type of accident occurred. In this case I actually witnessed the accident. Again the piston shot up, and this time caught a workers' fingers in a vice between the piston and the metal in the machine. He lost four of his fingers and was not able to return to work until a year later. After he came back the company fired him after a couple of months.⁽⁹⁵⁾

      Ms. Delgado described an explosion in the plant and the shortage of fire fighting equipment:

      I should add that at one point an oven exploded within the plant. This oven, a furnace that exploded, brought about a very big fire. But we could not tackle it because there were no fire extinguishers within the plant. There are one or two but they simply don't work properly. So as a result a person was -- his forehead was hurt -- well, nothing serious happened because there wasn't a lot of personnel there, but this oven is near the ladies' bathrooms, ladies' dressing rooms. These bathrooms and dressing rooms are also within the plant. So that is a terrible risk.⁽⁹⁶⁾

      Mr. Nájera described handling asbestos and unlabeled chemicals:

      I helped him put a number of different chemicals in a huge vat in the shape of a huge cylinder. I know I put 45 to 50kg. bags of asbestos in to this vat. I believe that the other chemicals that I put into this vat included a resin called "AG" which came in drums which said "Resina Fenólica Líquida" on them; a powder chemical called CM (carbon marino); yellowish bars that weighed about 3.5 kg. called "V" which looked like cotton and came in bags; "CB" which said "Negro Color" on the outside; mica sorzoriga which was like metal scrapings but a little more fine; ground rubber; and a white powder that we called "W" which I believe was short for Walastonita. The majority of the bags I put into the vat weighed 45 to 50 kg. and I lifted them in myself. They did not give me a belt to protect my back. I know that many of the bags I put into the vat were asbestos because they had tickets or tags on them in Spanish that said that the material inside was asbestos and that it could cause lung cancer. The other chemicals either did not have any of these tags on them or they were in English, which none of us could read.⁽⁹⁷⁾

      Mr. Ruíz described the lack of safety information:

      There's another situation -- we were never, never given any training on anything. There were no posters. There were no safety warning indications or signs -- nothing. We were supposed to have a health and safety commission, but we never knew who the members of the commission were or how the commission operated.⁽⁹⁸⁾

      Ms. Delgado also spoke of the absence of a functional health and safety commission:

      Now there were some people who were affected by toxic fumes. We asked the company to tell us which workers were on the health and safety commission, but we were never told the names of the members of the health and safety commission. We were told that there was such a commission, but we were never told who the members were.⁽⁹⁹⁾

      Mr. Ruíz also testified that he was unaware of the composition of the health and safety committee and Mr. Nájera stated that there was no committee of which he was aware.⁽¹⁰⁰⁾

      Dr. Francisco Antonio Mercado Calderón, an expert on industrial hygiene, provided expert testimony at the hearing. Dr. Mercado is a professor of industrial toxicology at the National Public Health Institute of Cuernavaca, Morelos, and an advisor on occupational health matters for the Mexican Petroleum Institute and for PEMEX Petroquimica, the petrochemical branch of Mexico's national petroleum company. Dr. Mercado acknowledged that he had never inspected ITAPSA but that the complaints of the workers at that plant were consistent with problems he found in an inspection of American Brakeblock, a sister company of ITAPSA, also owned by the Echlin Corporation, that employs a similar process in the manufacture of brakes. Dr. Mercado explained that American Brakeblock fell under a separate governmental jurisdiction from ITAPSA and thus he was able to conduct his inspection without prior notice, something he considers would not have been possible in the state jurisdiction where ITAPSA is located.⁽¹⁰¹⁾

      During his inspection of the plant, Dr. Mercado noted dozens of bags of white asbestos chrisotile stored in the warehouse. These had tags in English which stated: "Avoid creating dust - cancer and lung disease hazard." There were no tags in Spanish, however, and no announcements, security data sheets, or signs warning of hazards in Spanish anywhere in the factory. He described a dusty atmosphere with inadequate extraction/ventilation systems in dust emitting and asbestos emitting zones. The protective masks available to workers were intended for protection against dust but were inadequate for protection against asbestos. No gloves or respirators were available for workers handling solvents. He found it especially disturbing that workers swept asbestos dust and did not have vacuum cleaners to clear it safely. Dr. Mercado did not observe any hearing protection for workers.⁽¹⁰²⁾

      Besides asbestos, Dr. Mercado said that other chemical products used in the manufacturing process at American Brakeblock include solvents, phenol and naptha. NOM 10 requires ongoing monitoring of levels of all of these. On asbestos levels permitted under NOM 10, Dr. Mercado stated:

      It's interesting to note that the values of the 010 standard of asbestos exposure is 2 fibers per cubic centimeter, while in the United States, according to the Federal Administration of Occupational Health and Safety, OSHA . . . it's .1 fibers per cubic centimeter, which is ten times less.⁽¹⁰³⁾

      The way in which the 010 Mexican standard classified cancer causing chemical substances is not in keeping with the most recent scientific information, nor does it take into consideration the classification of the International Cancer Research Agency which has the clearer and more explicit classification.

      This agency, as we mentioned initially, classifies asbestos as a cancer-causing chemical substance, confirmed in humans; while the NOM-010 places it only as potentially cancer-causing. And the same happens, by the way, with other compounds which are also confirmed cancer-causers, and in this standard, everything is only potentially cancer-causing.⁽¹⁰⁴⁾

      Dr. Mercado described the safety and health conditions at American Brakeblock as "a critical situation in the health and safety conditions . . . which require changes to protect the health of its workers."⁽¹⁰⁵⁾

      While the information from the workers and the testimony of Dr. Mercado depict workplaces replete with hazards, inspection reports by Mexican Government inspectors are somewhat less condemnatory. The information provided by the Mexican NAO indicates that ITAPSA underwent three health and safety inspections and three verification inspections, from 1995 through January, 1998. During that same period, two partial inspections of steam generators and compressed gas tanks were conducted. The NAO has reviewed the reports of these inspections carried out of the factory by the Inspectorate of Labor beginning in May 1995. These documents provide a picture of Mexican government efforts to enforce health and safety laws and standards.

      The NAO reviewed the records of inspections conducted on May 26, 1995, June 3, 1996, June 25, 1996 (verification inspection), August 26, 1997 and January 13, 1998 (verification inspection). In the reports, the inspectors noted the presence of asbestos, naphtha, phenol, graphite, barite, and toluene for use in production. The inspection conducted on May 26, 1995, resulted in an order to the company to undertake corrective and abatement measures on eighteen items including the measurement of noise levels; the repair of air extraction ducts and powder collectors; insulation of electrical cables; and the installation of safety devices on machinery. Following a verification inspection, the company was fined Pesos 795.75 (U.S.$113.00 approx.) for the failure to abate four violations.

      An inspection conducted on June 3, 1996, found violations which included the lack of an evaluation of solvents and airborne pollution and no written procedures for handling toxic and corrosive substances. The same inspection ordered corrective measures on twenty-five items including the measurement of noise levels; an evaluation of thermal conditions; an evaluation of toxic contaminants and airborne pollution; replacement of powder extraction ducts; the installation of safety devices on machinery; and the insulation of electrical wiring. Neither the head of the local union nor the members of the health and safety commission were present at the time of this inspection or the verification inspection conducted on June 25.⁽¹⁰⁶⁾ The company was cited for three violations and fined Pesos 571.50 (U.S.$82.00 approx.). A verification inspection found that the company had failed to abate five violations for which corrective action had been ordered. The case was remitted to the Director of Sanctions of the Directorate General of Legal Affairs of the STPS for appropriate action.

      Still another inspection was conducted on August 26, 1997. This is the first inspection conducted following the enactment of Mexico's new RFSHMAT in April, 1997, and was the most thorough and comprehensive of those that the NAO reviewed. This inspection noted fourteen violations including the lack of a workplace hazard study; no materials handling procedures; no roster of people authorized to handle hazardous material; no internal work rules; and no record of training in health and safety. In the same inspection report, abatement or corrective action was ordered on 21 items, including conducting a hazard evaluation study at the company for the Social Security Institute; replacing powder recuperators; repairing powder collection ducts; insulation of electrical cables; and installation of safety devices on machinery. Again, neither the union officers nor members of the health and safety committee were available to accompany the inspector. The company was cited for two violations and, following a verification inspection in January, 1998, for the failure to abate four additional items for which corrective action was ordered. Action to assess the appropriate financial penalty was initiated. The NAO has been unable to verify if any of the fines were collected.

      The inspections appear to have been thorough and comprehensive and the reports note the presence of asbestos and other toxic chemicals in the workplace. A notable omission is the failure of inspectors to conduct their own sampling and monitoring. In a workplace in which the presence of asbestos and other toxic materials has been noted, this is a curious oversight. NOM 10 makes monitoring and sampling the responsibility of the employer and Annexes 1 and 2 provide detailed specifications on monitoring. The inspection reports note that ITAPSA has conducted its own evaluation of toxic contaminants and that this has been submitted to the STPS. There is nothing to indicate, however, what exposure levels were detected.

      The absence of the union secretary general, his representative, and members of the health and safety committee is also notable. Though the records indicated that a safety and health committee had been constituted in the plant, members of the committee were unavailable in the four periodic and verification inspections conducted during 1996, 1997 and 1998.

      There are several items that can be observed in the inspection reports which merit comment. Problems in ventilation equipment such as extractors and powder collection ducts are noted in the three periodic inspections conducted in 1995, 1996, and 1997. Given the presence of asbestos and toxic chemicals, proper ventilation and the adequate extraction of airborne contaminants are major concerns. Though the verification inspection reports indicate that these violations were abated, they were identified again in the subsequent periodic reports. No fines were imposed. The reports show a similar pattern with regard to insulation of electrical cables and steam tubing.

      Three violations related to hazardous materials were noted in the June, 1996, inspection report, of which one was cited for the imposition of a fine. The others were reported as abated in the verification reports. Eight violations related to hazardous materials were noted in the August, 1997, inspection report. One was noted as unabated in the verification inspection and cited.

      Dr. Mercado's testimony, though not of the ITAPSA plant, provides expert information on workplace hazards associated with the production process of vehicular brakes in Mexico. Many of the problems and deficiencies he identified at the nearby American Brakeblock facility are consistent with the problems workers identified at ITAPSA. These hazards and problems include inadequate or no labeling in Spanish of hazardous materials; inadequate or no information and/or training on toxic hazards for workers; high noise levels with inadequate or no hearing protection; inadequate ventilation; lack of lockout/tagout program; inadequate personal protective equipment for workers; lack of access for workers to the results of their own medical examinations; and inadequate control of dust generation in the production process, such as mixing asbestos and other materials in open containers. Dr. Mercado also noted that workers who work with asbestos should shower before leaving work and have their work clothing laundered at the workplace.

      Mexican Government inspection reports of ITAPSA are also consistent with a number of the health and safety complaints of workers, though differing considerably as to degree. These include problems with ventilation and dust control devices; high noise levels; lack of safety devices on moving machinery; inadequate fire prevention and fire fighting measures; the presence of electrical hazards; the absence of procedures for hazardous materials handling; and inadequate training on workplace hazards. In most of the cases, however, the company was able to show compliance or abate the hazards so as to avoid paying financial penalties. The noticeable variances between the inspection reports, on one hand, and the testimony of Dr. Mercado and the workers of ITAPSA, on the other, are (1) a matter of degree; (2) the matter of personal protective equipment, which Dr. Mercado found to be inadequate but which is not addressed in the inspection reports; and (3) the issue of inadequate shower and laundering facilities, mentioned by both Dr. Mercado and the workers, which is not addressed in the inspection reports. NOM 18 contains language requiring employers to notify workers of the possibility of contamination of their work clothes and that contaminated work clothes be deposited in a designated central location at the end of the workday.

      A major concern to the NAO is the absence of information on safety and health hazards available to workers. Testimonial evidence indicates that hazardous materials were unlabeled, or not labeled in Spanish so as to be understood by workers. Hazardous materials warning signs and data sheets were also unavailable to workers as was, apparently, the information on makeup of the health and safety committee. The information available to the NAO depicts a workplace where asbestos and toxic chemicals are used in the production process; where inspection reports do not indicate the level of contaminants; where adequate personal protective equipment may be unavailable; where toxic chemicals are unlabeled or not labeled in Spanish; where monitoring of airborne contaminants and toxic levels is not conducted by STPS inspectors; and where basic information on safety and health is unavailable to workers. These conditions persisted despite regular and ongoing inspections by the STPS.

      Mexico's safety and health laws provide for significant fines for violations of safety and health laws, standards and regulations. In accordance with FLL Article 512D, RFSHMAT Article 168, LFPA Article 71, and REPASA Article 15, these fines may be substantially increased in cases of repeated violations or the failure to correct deficiencies. LFPA allows for the imposition of sanctions for every day in which an infraction persists. The purpose of such increments in penalties is deterrence. The deterrent effect is lost if sanctions are not applied consistently and uniformly. The NAO is unable to ascertain if such is the case in the instant submission. However, the only fines assessed against ITAPSA thus far amount to less than U.S. $200.00. The modesty of this sum and the fact that a number of the violations appear in more than one inspection report are a cause for concern.

6. FINDINGS

   This review indicates that a group of workers who attempted to exercise their right to freedom of association were subjected to retaliation by their employer and the established union in the workplace, including threats of physical harm and dismissal. They were required to vote for union representation in an atmosphere of fear and intimidation and to cast open ballots in the presence of representatives of the contending unions, including the one threatening reprisals and dismissals; the representative of a management that had clearly expressed its union preferences and had already retaliated against workers for their union activities; and before a large number of aggressively acting and boisterous individuals who were not employees but were allowed in by the company. Finally, workers engaged in lawful organizational and informational activities outside a workplace were subjected to physical attack by persons associated with the established union at the plant and in the presence of company officials. The events described herein are not consistent with the principle of freedom of association and, for the most part, do not appear to be consistent with Mexican law.

   The information obtained by the NAO during its review is consistent regarding the actions of Federal CAB No. 15, including the first postponement of the representation election, the conduct of the election itself, the review of the challenge to the election, and the delay in hearing the case of workers dismissed under the exclusion clause. The proceedings conducted do not appear to be in accordance with Mexican laws and regulations in all instances. When viewed in the context of the composition of the CAB and the interest of the CTM in the outcome of the proceedings before that tribunal, review of this submission raises questions about the impartiality of the CAB No. 15 and the fairness, equitableness, and transparency of its proceedings and decisions.

   With regard to the health and safety issues raised, the information available indicates that the ITAPSA plant may suffer serious health and safety deficiencies that are hazardous to its employees. The fines that were assessed were minimal and the NAO has been unable to ascertain if they have been collected. Also, there are serious questions as to the efficacy of the inspections themselves. However, the information also indicates that the factory has been subjected to ongoing health and safety inspections by the authorities which have noted numerous shortcomings and that corrective action was undertaken on many of these.

   The NAO makes the following findings:

   1. While Mexico's Constitution and Federal Labor Law protect workers' freedom of association, in the instant case it appears that they were not afforded the protections to which they were entitled.

   2. The conduct of the proceedings by Federal CAB No. 15 was not always consistent with the Federal Labor Law and the obligation of the Parties to the NAALC to ensure impartial tribunals for the resolution of labor disputes.

   3. The attack on workers outside the premises of American Brakeblock raises troublesome questions as regards the rights of workers to engage in legitimate organizing activities without being subject to reprisals, including physical attack.

   4. The conduct of health and safety inspections of the ITAPSA facility appears to have been consistent with Mexican law, though questions are raised regarding the efficacy of the inspections. These questions are of special concern because of the presence of asbestos and other toxic substances at the plant which may not be adequately monitored.

   In consideration of the above, ministerial level consultations on the freedom of association protections afforded Mexican workers in a union organizing campaign and the conduct of representational elections would further the objectives of the NAALC. Consultations should address, at a minimum, the intimidation of workers by management and CTM Section 15 prior to and during the representation election; the application of the exclusion clause; the use of secret ballot in representation elections; and other procedural matters in the conduct of representation elections.

   Consultations at the ministerial level would contribute to a better understanding on the matter of the actions of Federal CAB No. 15 as regards the instant submission and whether there exists, within Mexican law, means and procedures by which concerns of partiality by the CAB and fairness in its proceedings and decisions, may be addressed. Such consultations would also serve to clarify the operation and functions of the exclusion clause, its compatibility with freedom of association, and the scope and application of the Supreme Court decision that found that the application of the clause in the context of a representation election may be inappropriate.

   With regard to the health and safety issues raised in the submission, ministerial consultations would contribute to a better understanding of the health and safety conditions prevailing at the ITAPSA plant, the efficacy of inspections conducted of the plant, and the overall effectiveness of Mexico's efforts to secure compliance with its health and safety laws.

   With regard to the incident outside the premises of American Brakeblock, the U.S. NAO will seek additional information on the matter from the Mexican NAO.

7. RECOMMENDATION

   Accordingly, the NAO recommends ministerial consultations on the freedom of association, procedural, and safety and health issues raised in Submission No. 9703, pursuant to Article 22 of the NAALC.

   Irasema Garza
   Secretary
   U.S. National Administrative Office
   July 31, 1998.

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Footnotes

78. For detailed information on Mexican laws, standards, and procedures on occupational safety and health, see U.S. Department of Labor, Bureau of International Labor Affairs, U.S. National Administrative Office (NAO), Public Report of Review of U.S. NAO Submission No. 9702(II), (July 1998).

79. The RFSHMAT replaced several previous laws on safety and health and came into effect on April 21, 1997.

80. Mexican NAO letters dated April 23, 1998 and March 27, 1998 (the latter in response to Submission No. 9703).

81. Mexican NAO letter dated April 23, 1998.

82. Ibid.

83. Mexican NAO letter dated March 27, 1998.

84. Ibid.

85. Ibid.

86. Mexican NAO letter dated March 27, 1998.

87. Mexican NAO letter dated April 23, 1998.

88. Also No. 136 (Benzene convention); No. 162 (Asbestos Convention); No. 148 (Working Environment Convention [Air Pollution, Noise and Vibration]).

89. Submission No. 9703, affidavit of Rubén Ruíz Rubio.

90. Ibid., affidavit of María Trinidad Delgado Navarro.

91. Ibid., affidavit of José Eugenio Nájera Vázquez .

92. Public Hearing on NAO Submission No. 9703, p. 164.

93. Ibid., pp. 164-165.

94. Ibid., pp. 172-174.

95. Submission No. 9703, affidavit of Rubén Ruíz Rubio.

96. Public Hearing on Submission No. 9703, pp. 168-169.

97. Submission No. 9703, affidavit of Jose Eugenio Nájera Vazquez.

98. Public Hearing on Submission No. 9703, p. 175.

99. Ibid., p. 169.

100. Public Hearing on Submission No. 9703, p. 172; NAO Submission No. 9703, affidavit of Jose Eugenio Nájera Vazquez.

101. Ibid., pp. 185-186.

102. Ibid., pp. 187-190.

103. The allowable asbestos levels mentioned by Dr. Mercado are correct. The difference between the U.S. and Mexican standards is not ten times, however, but twenty times (2 / .1=20).

104. Ibid., pp. 190-191.

105. Ibid., p. 192.

106. FLL Article 509 requires that a joint health and safety committee be established in every workplace. Article 32 of the RIFT empowers inspectors to request the assistance of the appropriate committees in executing their duties. All of the periodic inspection reports reviewed by the U.S. NAO in this and other submissions include an annotation on whether a union exists in the workplace, if its officers are present, if a joint health and safety commission was established, if its member are present, and a request for both the union representative and safety and health committee representatives to accompany the inspector.