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E-mail This PageU.S. NAO Public Submission 940003
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Before the TABLE OF CONTENTS Introduction During the debate in the U.S. Congress over passage of the North American Free Trade Agreement (NAFTA), a great deal of public concern focused on whether the trade agreement provided adequate protection of workers' rights. In response to these concerns, the United States, Mexico and Canada negotiated side agreements to NAFTA, including the North American Agreement on Labor Cooperation (NAALC). Under the procedures of the NAALC, the three signatories have established National Administrative Offices (NAOs), which are empowered to investigate incidents involving violations of workers' rights among the three countries. This submission to the USNAO concerns labor practices at maquiladoras in Nuevo Laredo owned by Sony Corporation, operating under the name of Magneticos de Mexico (hereinafter "Sony" or "MDM"). The submission documents: (1) Sony's persistent violations of workers' rights, particularly in the area of freedom of association: (2) a history of targeting union activists with firings, demotions, surveillance, harassment, and violence; (3) continuing violations of provisions of the Mexican Federal Labor Law that pertain to allowable hours of work; and (4) the Mexican government's persistent failure to enforce applicable Mexican labor laws. Submitters urge the USNAO to: (1) hold public hearings on this matter in Laredo, Texas; (2) conduct an on-site investigation at Sony facilities in Nuevo Laredo; and (3) take steps to assure that Mexico will secure Sony's compliance with Mexican and international law, including reinstatement of workers unjustly dismissed. The International Labor Rights Education and Research Fund (ILRERF) is a non-profit organization representing human rights, labor, religious, consumer, academic, and business groups dedicated to assuring that all workers labor under reasonable conditions and are free to exercise their rights to associate, organize and bargain collectively. Founded in 1986, ILRERF is committed to environmentally sound development that promotes broad-based economic growth and equitable distribution of wealth. Supported by contributions and foundation grants, ILRERF works to advance trade, investment and aid policies that promote worker rights around the world. ILRERF carries on research, publishing, educational and advocacy projects to advance international fair labor standards. The Asociacion Nacional de Abogados Democraticos (National Association of Democratic Lawyers) is a network of legal professionals in Mexico committed to providing legal services, analysis and litigation in the defense of democracy and human rights. Its approximately 230 members include some of the most prestigious human rights authorities in Mexico, including noted specialists in labor law, arbitration, and collective bargaining. The Coalition for Justice in the Maquiladoras is a tri-national coalition of 100 religious, environmental, labor, Latino, and women's organizations that seek to pressure U.S. transnational corporations to adopt socially responsible practices within the maquiladora industry to ensure a safe environment along the U.S.Mexico border, safe work conditions inside the maquila plants, and a fair standard of living for the industry's workers. The American Friends Service Committee ("AFSC")is a practical expression of the faith of the Religious Society of Friends. It is a non-profit organization carrying out work across the U.S. and in countries around the world in the interest of justice and peace. This involves AFSC in community development, organizing and educating for peace and justice. AFSC works closely with those most disadvantaged by society's social and economic systems; it works with those who benefit from such arrangements, using a variety of methods to urge them to change for the betterment of all. AFSC believes the spirit can move among all groups, making great change possible. AFSC's work along the Mexico-U.S. border for decades has made clear the need for democratically developed community and worker organizations to have a voice in the fast-moving economic changes in the region. This submission is brought pursuant to the North American Agreement On Labor Cooperation (hereinafter "NAALC" or "Agreement"), Section C, and in accordance with the procedures set forth in the Revised Notice of Establishment of U.S. National Administrative Office and Procedural Guidelines, 59 Fed. Reg. 16,660 (Apr. 7, 1994) (hereinafter "USNAO Regulations"]. This submission meets the requirements of Section F of the USNAO Regulations. First, the government of Mexico has failed to comply with its obligations under Part II of the Agreement, which requires that each party "shall promote compliance with and effectively enforce its labor law through appropriate government action, subject to Article 42, such as . . . monitoring compliance and investigating violations . . . providing or encouraging mediation, conciliation and arbitration services; or . . . initiating, in a timely manner, proceedings to seek appropriate sanctions or remedies for violations of its labor law. Second, Sony's illegal actions, including its wrongful dismissal of employees, have caused irreparable harm to its workers. Third, the matters complained of demonstrate a pattern of non-enforcement of Mexican labor laws by the government of Mexico. Under Section G(2) of the USNAO Regulations, the Secretary "shall accept a submission for review if it raises issues relevant to labor law matters in the territory of another party and if a review would further the objectives of the agreement." These objectives, stated in Part I, Article I of the Agreement, include promoting to the maximum extent feasible the labor principles set out in Annex I:
In the case of Sony, the Mexican government has failed to enforce: (1) Article 123 of the Constitution of the Republic of Mexico, which assures the right of free association and limits permissible hours of work; (2) Articles 60-61 and 73-75 of the Mexican Federal Labor Law, which governs the definition and regulation of the work day; (3) Convention 87 of the International Labor Organization (ILO), which guarantees the right to organize free trade unions, and which Mexico has formally ratified, thus making the convention and the principles stated therein part of its domestic law; and (4) ILO Convention 98, which guarantees the right of organization and collective bargaining, and which is binding on Mexico as a member of the ILO. Submitters affirm that appropriate relief has been sought under the domestic law of Mexico by employees directly affected by the illegal and unfair labor practices set forth in this complaint. (The matter remains unresolved and the manner in which the Mexican authorities have conducted their intervention forms part of the gravamen of the complaint.) Submitters further affirm that neither the matter or any related matter which forms the subject of this complaint is pending before any international body. Review by the USNAO of this case would further the objectives of the Agreement by demonstrating that corporate transgressions of these principles, which have been persistently ignored by one of the parties to the Agreement, will be seriously addressed by the Parties to the NAALC. It will create confidence among workers in Mexico, the United States, and Canada that their interests will not be ignored, especially when the violations of those interests are as egregious as here. For 15 years, Sony Electronics has operated maquiladoras in Nuevo Laredo, Tamaulipas, under the name Magneticos de Mexico. Approximately 1,700 unionized workers, 80% of whom are women, are employed in these operations. Sony operates five plants, designated #1, #2, #3, #6, and #7, which produce computer disks, video cassette tapes, and audio cassette tapes. The turmoil at Sony must be understood in the context of two interrelated factors: the company's attempt to change work rules, for which it needed a compliant union leadership; and an intraunion struggle throughout the entire city of Nuevo Laredo, in which the leadership affiliated with the official Mexican labor confederation, the Confederation de Trabajadores Mexicanos (CTM), has been challenged by maquiladora workers seeking more democratic representation within their unions, who criticize the collaboration between management and the CTM leaders.(1) The leadership of the union, consequently, was not simply an intra-union matter, but was of intense interest to the management of MDM, as well as the other companies in the Nuevo Laredo vicinity. In the case of MDM, it was of particular importance because of Sony's decision to introduce work rule changes that caused a significant disruption in the lives of MDM workers. A. The Work Rule Changes. When Sony began operations in Nuevo Laredo, it operated with one work schedule, which has come to be referred to as the "Normal Shift" (Horario Normal). The Normal Shift allowed workers to receive a half day off on Saturday and the full day off on Sunday.(2) When Sony installed injection molding machinery in the mid-1980s, it made the case to Mexican officials that the new equipment had to be run continuously, without being shut down, under a provision of the Mexican Federal Labor Law which allows shifts to be extended under "extraordinary circumstances."(3) Therefore, employees who worked in the Molding Department worked what was called the "Mold Shift" (Horario Moldeo). This work schedule comprised three eight hour shifts, operating seven days a week. Each worker on the Mold Shift received one day off per week; however, most were required to work Saturdays and Sundays. Unlike the injection molding machinery, equipment in other departments can be shut down without mechanical difficulties. In fact, from 1979 to 1993, the Company managed to operate successfully while allowing the vast majority of employees to work the Normal Shift. However, between June and December 1993, Sony implemented the Mold Shift schedule throughout most of the company's departments. This schedule change caused great discontent among the work force. Workers object to the new work schedule because it violates Articles 60 and 61 of the Federal Labor Law, and because most employees are now required to work full time on Saturdays and Sundays. This makes it impossible for workers to attend religious services, reduces leisure time, and has a destructive impact on family life. Sony also denied workers their days off on National Holidays, in violation of Articles 73-75 of the Federal Labor Law. Under these provisions, employers may require employees to work National Holidays only if the operations must be continuous.(4) B. Changes in the Union Leadership. In October, 1993, Jose "Chema" Morales Dominguez became Secretary General of the Federacion de Trabajadores de Nuevo Laredo (FTNL), the overall confederation of CTM unions in Nuevo Laredo. Morales also claimed to be Secretary General of the Maquila Section of the FTNL,(5) with the endorsement of the state CTM and the government, although he had not been elected to this post. This created acute discontent among maquiladora workers. On January 6, 1994, a representative of Morales and MDM personnel manager Juan Fernando Leal del Toro (hereinafter "Leal") met with unionized workers of MDM Plant # ....., first shift. Leal announced that their elected union delegate, ..... had been removed from her delegate position. ..... had aggressively expressed the workers' discontent with the recent schedule changes. The same day, Leal informed ..... that she would be suspended for 18 days with pay, during which time she was not to be seen talking with other workers, or else she would be fired. On January 8, workers in Plant #..... went out on a wildcat strike to protest the removal of ..... ..... workers were fired the next day by Leal, and went on a three day hunger strike. When Morales announced an election for union delegates at each maquiladora in the Nuevo Laredo region, MDM workers who were dissatisfied with their leaders' response to the schedule changes began to organize an alternative to the official slate backed by Morales. The MDM management, in conjunction with Morales, then began a campaign of intimidation directed at the dissidents:
C. The Flawed Election On the evening of April l4, Sony authorized Benjamin Avila, a CTM representative from Mexico city, to enter several plants to inform workers that an election for union delegates would be held the following morning at 7:00. Sony management were present during these announcements. Many workers voiced objections that the election was being scheduled with such short notice, and that workers from all three shifts would have to be present at 7:00 a.m. if they wanted to vote. Since the notice was given in the evening, there was no time for notification of day shift workers, except by word of mouth (barely five percent of the workers have home telephones). Even with the short notice, approximately 1,000 workers showed up on the morning of April 15 for the election, which was conducted on a sports field behind Plant #7. The following description of the election process has been compiled from interviews with more than ten workers who attended the election. The election was administered by Avila, who was joined by Chema Morales and candidates from the official slate. Observing the election process were Sony managers Javier Sofia, Alejo Flores, Fernando Leal del Toro, and others. Throughout the proceedings, workers protested that not everyone had been informed of the elections and that not everyone had been allowed to attend. Workers from Plant #..... where ..... and ..... had worked prior to being fired, were absent. Avila informed the workers that they were holding elections for union delegates and asked Chema Morales for the names of his candidates. Avila then asked the crowd if there were any alternative slates. A woman came forward with the names of six workers who were candidates on the alternate slate. Avila stood before the assembly and read the names of the candidates proposed for each slate. The official slate candidates were supported by a contingent of a dozen cheerleaders dressed in red t-shirts who cheered, held up signs, and shook noisemakers. The short notice for the election had prevented the alternate slate from organizing a cheerleading squad. Avila announced that the first order of business was to determine whether the vote would proceed by open ballot or secret ballot. Workers on the alternate slate argued that secret ballots were the only way to insure a free election. The official slate candidates spoke out aggressively for an open vote. Avila proposed a show of hands to determine the manner in which the vote would proceed. He designated a representative from each side to help him count the votes, and then instructed workers in favor of an open vote to raise their hands. The cheerleaders cried "Open vote! Open vote!" and supporters of the first slate raised both their hands. Avila then instructed those in favor of the secret ballot to raise their hands. Avila surveyed the crowd, and announced that in his opinion, the open vote had won. The alternate slate representatives began protesting vigorously that they were in the majority and that the count was not fair. Avila, persuaded to give the vote another try, announced to workers that supporters of an open vote should line up on one side of the field, and opponents on the other. Workers began rearranging themselves, some confidently and some hanging back as if unsure what to do. Their confusion was compounded when the delegates of the official slate began ordering workers over to their side, pulling some by the shirts and saying "you're with me." As the proceedings began to dissolve into chaos, Avila stepped up to the microphone and announced that the open vote had prevailed and that they would proceed in that fashion. Immediately, alternate slate candidates came forward to protest. They demanded that Avila count heads, but he refused, stating that the company had only given him permission for one and a half hours and counting heads would take too long. Workers were enraged, and told him expressly that he knew what he was doing was wrong. "These elections are going to take place as I say, not as you say," was his response. The workers' response was equally pointed. Without further argument they left the sports field, circling around to the front of Plant #7 and down the entrance road. Shouting "down with Chema," they marched down La Reforma and Guerrero avenues, two of the main arteries of the city.(6) These events provoked a work stoppage that began on April 16 and continued for four days. When workers refused to enter the plants at the shift change on the 16th, management called the police. Management officials, including del Toro, were seen signalling police in riot gear who entered the plant grounds, positioned themselves for attack, and dislodged workers from in front of the plant. In the process, the police inflicted violence on many of the protesting workers, some of whom were hospitalized.(7) In the following three days, workers staged a 24 hour vigil in front of the MDM plant, blockading the entrances in protest of the police violence. On April 18, management tried to break the blockade by driving school buses at the workers, stopping just short of hitting them. On April 19, at 5 a.m., 150 state police officers arrived and dislodged workers who had slept in front of the plant. Over the next few days the workers returned to the plant. D. Reprisals After the Election After the election, Sony continued to intimidate workers who supported the alternate slate. During the first days after the work stoppage, management kept the workers under constant surveillance. Many workers were harassed into quitting during these first days, and at least three workers were fired outright for their activities during the strike period.(8) Sony officials brought a criminal complaint against workers involved in the dispute, and the very workers who had been. beaten by police found themselves accused of perpetrating criminal activity.(9) Several of those accused by Sony were summoned by authorities to give formal statements. Others learned of the accusation through the press and gave statements voluntarily.(10) In the following weeks, Sony management made some conciliatory gestures towards workers, claiming that they wanted to resume the labor peace that they had known in prior years. Yet when workers investigated the status of the criminal complaint against them, they were told by the Public Ministry's office that the case was still active and punitive action was still possible. E. The Attempt to Form an Independent Union On May 17, 1994, Jovita Garcia and 25 other workers petitioned the local Arbitration and Conciliation Commission (ACC) for the registration of a new union, Sindicato Unico de Trabajadores de la Cia. Magneticos de Mexico, to represent the Sony workers.(11) On June 30, Chema Morales, acting on behalf of the Maquiladora Section of the FTNL, formally opposed the registration of the independent union. Morales asserted that because the Maquiladora Section of the FTNL already had a collective bargaining agreement with Sony, the registration of an independent union of Sony workers would be illegal. On July 15, the ACC denied the registration request, giving three reasons. First, the ACC claimed that the independent union had failed to include in its bylaws the precise language of Article 356 of the Federal Labor Law concerning the union's objectives.(12) Second, the ACC stated that the Sony workers could not register an independent union because they were represented under an existing collective bargaining agreement with the Maquiladora Section of the FTNL. Third, the ACC asserted that the documentation submitted by the independent union was technically deficient. Sony's actions have violated Article 123 of Mexico's Constitution and Articles 60, 61, and 73-75 of the Mexican Federal Labor Law. By failing to enforce its own laws against Sony, the government of Mexico has violated each of the above provisions. In addition, the Mexican government has violated its obligations under the NAALC and under ILO Conventions 87 and 98. A. Sony Has Violated, and the Mexican Government Has Not Enforced, Provisions of the Mexican Constitution and Federal Labor Law That Regulate Hours of Work and National Holidays. Article 123(A)(1) of the Mexican Constitution establishes a maximum of eight hours for a day shift, and seven hours for a night shift. This requirement is elaborated by Articles 60 and 61 of the Federal Labor Law, which state respectively:
Sony requires eight hour shifts for nearly all of its workers. By scheduling night shift and mixed shift workers for eight hour shifts, the company violates Article 61. Sony has never asserted or established that it faces "extraordinary circumstances" that would allow it to exceed the statutory maximum number of hours.(13) In fact, the company has explicitly stated that its sole reason for implementing a 24 hour production schedule is to increase productivity.(14) In addition, Sony has violated Articles 73-75 of the Federal Labor Law by denying days off to its workers on national holidays. B. The Government of Mexico Has Violated ILO Conventions 87 and 98, which Guarantee the Freedom of Association for Mexican Workers in Selecting Their Representatives and Their Right to Organize and Bargain Collectively. Article 123 of the Mexican Constitution assures Mexican workers the right of free association to form unions for purposes of collective bargaining.
1. Sony's Interference in the April 15 Election, and its Discharge of Employees for Electoral Activities, Violates the Mexican Constitution's Guarantee of Free Association Sony has asserted that it played no role in the April 15 election. "The union election and its outcome on April 15 were in no way influenced by Sony management . . . We don't get involved with internal union election processes, and in this case in Nuevo Laredo we certainly didn't take any sides."(16) In fact, the circumstances of the election strongly suggest that Sony management interfered extensively. Management and first slate candidates were often observed consulting together. The elections were announced by official union representatives in the presence of management. The union representative who conducted the elections stated as a reason for not conducting a secret ballot that he had only been given one and one half hours by the company to conduct an election for 1,000 voters. And the entire electoral process was observed by management personnel, who were able to observe the vote of each worker. Sony also claims that it did not retaliate against the leaders of the alternate slate, six of whom lost their jobs at Sony in the month of March.
The record belies these representations. Sony dismissed four members of the dissident union slate: ....., ....., ....., and ...... Four other members of the alternate felt that they could no longer work as line operators because of harassment and intimidation by the company and official union leadership, and therefore accepted indemnification in return for their resignations. Sony claims that its actions against the six former delegates were precipitated when the "union removed then of their union duties." However, the evidence suggests that the actions taken against former delegates were collaborative decisions by Sony and leaders of the official union which were intended to eliminate union dissidents. It defies credibility to believe that MDM's dismissal of the four members of the alternate slate and the resignation under duress of four additional members of the slate were merely coincidental. Rather, this is prima facie evidence that Sony "took sides" in the election of union leadership by seeking to eliminate members of the alternate slate. Since January, 1994, Sony has fired 13 union activists, and pressured four others to resign from their jobs. In almost every case, the workers against whom Sony took action had between seven and 13 years of service with the company, had excellent work records, and had been promoted to high level jobs within the plant. In addition, Sony has harassed and demoted workers and changed their work schedules to pressure them to stop participating in organizing activities. (When Sony refers to workers who "chose to resign," or "agreed to a mutual separation agreement with severance above the norm," it is important to understand that even in cases where these workers were not technically fired, Sony pressured them to resign through a combination of harassment and offering large cash payments to leave their jobs.) Finally, Sony collaborated with the police in violently repressing work stoppages and demonstrations resulting from the elections staged by Sony and the official union leadership. By interfering in the elections and retaliating against the leaders of the alternate slate, Sony violated its obligations under Article 123 of the Mexican Constitution. 2. The Government's Denial of the Independent Union's Registration Petition violates the Sony Workers' Constitutional Right to Free Association In denying the independent union's registration petition, the ACC raised three objections. First, the ACC claimed that the independent union had failed to include in its bylaws the precise language of Article 356 of the Federal Labor Law concerning the union's objectives.(18) Second, the ACC stated that the Sony workers could not register an independent union because they were represented under an existing collective bargaining agreement with the Maquiladora Section of the FTNL. Third, the ACC asserted that the documentation submitted by the independent union was technically deficient. These arguments are flimsy pretexts for a politically-motivated denial of the Sony workers' right to select a democratic representative, and they directly contravene the provisions of Mexican law governing administrative procedure. First, the Federal Labor Law nowhere requires that a union's bylaws reproduce the exact text of Article 356. The Sony workers' stated objective, "to defend our rights as workers" is consistent with the purpose of that Article. Second, the fact of an existing union and collective bargaining agreement covering the employees of an employer is no bar to the legal registration of another union representing these employees.(19) The Federal Labor Law establishes the procedures to be followed when more than one union exists within a workplace.(20) While any number of unions may register and obtain legal personality, only the one with the support of the largest number of workers controls the administration [titularidad] of the contract. The ACC thus disregarded the specific injunction of the commentary to Article 389 of the Federal Labor Law that "one should not confuse the problem of administration of the collective work contract with the question of legal personality of unions, for these are two distinct things. . ."(21) Moreover, under the criteria applied by the ACC, the existing union is itself not legally registered, as it has been reorganized and renamed without following the procedures of Article 365. Third, the independent union did in fact submit all of the required documents. But even if its petition were technically deficient, this would not be grounds for denial of registration. The legal principles of administrative procedure require the ACC, in the event of a procedural mistake or the lack of information in the application, to request a correction by the applicants. It is generally accepted under Mexican law that in an administrative procedure, the government's legal duty is to assist the applicant, not to treat the application as an adversarial document. 3. The Mexican Government's Actions Violate Fundamental Principles of International Labor Law as Defined in ILO Conventions 87 and 98 The Mexican Government has, in its actions with respect to Sony, violated its affirmative obligations under international law to: (1) guarantee that union elections are free and fair, and not conducted in an atmosphere of coercion; (2) prevent employer domination of and interference with labor organizations; (3) prohibit employer discrimination against employees in hiring, assignment of work, and working conditions, on account of the employees' union activities; and (4) promulgate and enforce maximum working hour standards. Mexico is a member of the International Labor Organization and has ratified 66 ILO Conventions, including Convention 87 (Freedom of Association).(22) These Conventions are incorporated into Mexican law through Article 133 of the Mexican Constitution.(23) As a general principle, the ILO has stated that:
ILO convention 98 provides that:
The ILO Committee on Freedom of Association has emphasized that governments have an affirmative duty to prevent anti-union discrimination both by enacting nondiscrimination laws and by ensuring that these laws are enforced.(26) These measures must prevent discrimination in transfers and demotion as well as hiring and firing.(27) The employer's duty not to discriminate is the same regardless of whether or not the union represents a majority of the employer's employees or has entered into a collective bargaining agreement with the employer.(28) Sony's actions in discharging and transferring members of a dissident union faction, and its complicity in physical violence against union dissidents, clearly constitute prohibited discrimination within the meaning of Convention 98. The government is under a duty to prevent such discrimination. It cannot evade this duty by claiming that Sony's actions were sanctioned by the official trade union: Convention 98's protections extend to all union activities, whether or not the organization in question is sanctioned by the state or recognized by the employer. Nor can the government excuse its inaction by contending that it has not received complaints from the affected workers: given the level of media attention to the Sony dispute and the fact of police involvement, the government clearly knew or should have known of Sony's discriminatory actions.(29) In addition to prohibiting discrimination, ILO Convention 98 enjoins employers from attempting to dominate or interfere with the functioning of labor organizations.
Sony's interference in' and surveillance of union elections, firing and transfer of union dissidents, and use of the police to suppress protests against these anti-democratic actions, have the object of placing the official union under employer control and are precisely the types of actions which Convention 98 was intended to prevent. Finally, the Committee on Freedom of Association has warned that the hypertechnical use of union registration laws, such as that demonstrated by the ACC in denying the Sony workers' petition, violates the fundamental freedom of association.(31) 4. The Actions of Sony and the Mexican Government Violate the Labor Principles of the NAALC Sony has interfered in union elections, fired dissident union activists, collaborated with police and union officials in harassment and violence against union members protesting the conduct of union elections, and pressured workers into accepting severance pay and relinquishing claims for reinstatement. The Mexican government has failed to punish or prevent these actions, and has denied the Sony workers the right to register an independent union. These actions violate Principle 1 of Annex I of the NAALC, freedom of association and protection of the right to organize.(32) The imposition of work rule changes by Sony in violation of the maximum hours provisions of the Mexican Federal Labor Law contravenes Principle 5, minimum employment standards for wage earners. All of these instances reflect ineffective enforcement or non-enforcement of "labor laws" as defined in Article 49 of the NAALC. Taken as a whole, these cases reveal a persistent pattern, within the meaning of Article 49, of the Mexican government's failure to enforce its own labor laws for the protection of its workers. This failure also violates Principle six of the Agreement. For the foregoing reasons, Submitters respectfully request:
Respectfully Submitted, Dated: August 16, 1994 3. Mexican Federal Labor Law, art. 66. See infra Part V-A. 4. Mexican Federal Labor Law, art. 75 commentary. 8. On April 27, E1 Diario reported that ....., ....., and ..... had been fired. 15. Mexico Const. art. 129(A)(XVI). 16. Letter from Carl Yankowski, President, Sony Electronics, to Rep. David Bonior, May 2, 1994. 20. Federal Labor Law art. 388. 21. Federal Labor Law art. 389 commentary.
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