U.S. NAO Public Submission 9702 II
Amendment to Submission No. 9702
Table of Contents
This submission is being presented by the Asociación Nacional de Abogados Democraticos, the Support Committee for Maquiladora Workers, the International Labor Rights Fund, the Maquiladora Health and Safety Support Network; and the Sindicato de Trabajadores de la Industria Metalica, Acero, Hierro, Conexos y Similares (hereafter "Petitioners") as an addition to Submission #9702 filed on October 28, 1997 before the U.S. National Administrative Office (hereafter "U.S. NAO") under the terms of the North American Agreement on Labor Cooperation (hereafter "NAALC").
The following are new Petitioners to the October 28, 1997 submission:
The Maquiladora Health & Safety Support Network: is a non-profit network of public health professionals in Canada, Mexico and the United States. Support Network members provide information, technical assistance and on-site training regarding occupational safety and health hazards for the 3,200 "maquiladora" (in-bond manufacturing/assembly) plants and their workers on the U.S.-Mexico border. The Support Network has more than 400 occupational health specialists providing pro-bono services to community-based organizations and professional associations in Mexico. The volunteer Support Network was founded in October 1993 by the Occupational Health & Safety Section of the American Public Health Association.
Worksafe! (Southern California Chapter): is a non-profit coalition of individuals and organizations dedicated to promoting safety and health in the workplace. The coalition includes individuals from a broad spectrum of groups, including occupational safety and health professionals, community groups and leaders. This organization also provides technical and legal information on occupational safety and health and training of future trainers in the same area.
The United Steel Workers of America, AFL-CIO, CLC, represents over 700,000 members in virtually every state of the U.S. and province of Canada. The USWA has traditionally represented workers in steel, can, aluminum, mining, manufacturing, chemical and other industries. Today, the Union is one of the most diversified in the labor movement, and its members work in every sector of today's changing economy; manufacturing, retail, health care, service and public sector. This union is expected to merge with UAW and International Association of Machinists by the year 2000.
The National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW-Canada) represented 215,000 workers in every province and territory of Canada. The CAW represents workers employed in the auto, auto parts, aerospace, airline, rail, trucking, marine, fishing, mining, smelting, health care and hospitality sectors of the Canadian Economy.
The International Union, United Automobile, Aerospace & Agricultural Implement Workers of America-UAW is a labor organization with 1.3 million active and retired members that represents workers in a wide range of manufacturing and service industries. The UAW has been involved in reviewing and analyzing conditions in maquiladora plants for many years and has developed and implemented an active health and safety program to address the concerns of UAW members with their employers and through public policies.
Pursuant to articles of the NAALC identified below, the Petitioners request that the U.S. NAO investigate and insist upon immediate corrective action die to the persistent pattern of failure and negligence on the part of the Mexican government and its representatives to effectively enforce Mexican occupational safety and health standards at Han Young de Mexico, SA de CV (hereafter HYM).
This submission consists of Section A and Section B:
Section A examines the persistent pattern of failure and negligence of the Mexican government (represented by the Department of Labor and Social Welfare, Secretaria del Trabajo y Provision Social, here after "STPS") to effectively enforce its labor laws in relation to the following: the investigation of reported and documented violations of health and safety regulations at HYM; the verification of implementation of mandated corrective actions at HYM; and the assessment of monetary fines for violations of Mexican occupational health and safety regulations.
Section B examines the failure of the STPS to enforce those articles of law that govern the formation and operation of the legally-required workplace Health and Safety Committees (Comision de Seguridad e Higiene, hereafeter "CSH"). The STPS failed to act as required by law upon discovery and knowledge that HYM management failed to establish a CSH, failed to respect the efforts of HYM employees to form a CSH, and conducted reprisals and discrimination against employee members of the CSH after it was finally formed.
The persistent pattern of failure and negligence on the part of the Mexican government to effectively investigate reported and documented violations, verify employer compliance with regulations regarding mandated corrective actions, and impose monetary penalties for unabated violations of Mexican health and safety regulations.
In Article 1 of the NAALC, the signatory nations agreed to several Objectives, which include: "to improve working conditions and living standards in each Party's territory, [Article 1(a)]"; and to promote certain labor principles, which specifically include "prescribing and implementing standards to minimize the causes of occupational injuries and illnesses" [Article 1(b), Annex 1(9)].
In addition, signatory nations agreed to certain obligations, which include promoting compliance with and effectively enforcing its labor law through appropriate government action in areas such as: a) verifying compliance with labor laws and investigating suspected violations of health and safety regulations, including on-site inspections [NAALC Article 3, 1(b)]; and b) initiating, in a timely manner, proceedings to seek appropriate sanctions or remedies for violations of its labor law [NAALC Article 3, 1(g)].
The Petitioners will demonstrate that the Mexican government has violated the letter and spirit of the NAALC articles by the repeated failure and negligence on the part of STPS to effectively enforce Mexican occupational health and safety laws in the case of HYM.
The Mexican Ley Federal del Trabajo (hereafter "LFT") defines principles intended to promote safe working conditions and reduce the risk of accident, injury and illness. Moreover, the LFT establishes procedures by which the Mexican government authorities should ensure and assure compliance with the law. These principals are set out in a number of articles of the LFT, chiefly the following:
LFT Article 511: "Labor inspectors have the following special responsibilities and duties.
LFT Article 512: "In the regulations of the Law and in the findings that the Mexican Labor authorities issue based on these regulations, the necessary measures shall be established to prevent work place hazards and ensure that working conditions safeguard the life and health of workers."
LFT Article 512-D: "The employers must make such modifications that are ordered by the Mexican Labor authorities in order to adjust their establishments, installations, and equipment to the guidelines of this Law, of its regulations and of the corresponding instructions which have been issued by the competent authorities. If during the period of time which has been granted in order to do so, [the employers] have not made modifications, the Secretary of Labor and Social Welfare (STPS) will proceed to sanction the employer in violation, with the imposition of a greater fine in the case that the order is not honored within the new compliance period that has been granted."
"If the sanctions have been applied, and the irregularities persist, the Secretary of Labor, taking into account the nature and severity of the hazard of the modifications, has the authority to shut down part or all of the work site until the respective obligation is fulfilled. Before the plant is partially or fully shut down, the Secretary of Labor must also hear the opinion of the corresponding Health and Safety Committee, without preventing that the STPS itself adopt the pertinent measures so that the owner fulfills said obligation."
"When the Secretary of Labor determines to partially or totally shut down a work site, it will give three work days' notice in writing to the employer and to the union representatives. If the workers are not unionized, the notice will be given in writing to the worker representatives of the Health and Safety Committee."
LFT Article 992: "Violations of the Mexican Labor Code which have been committed either by the employers or the workers will be punished in accordance with the guidelines of this Chapter, independently of whatever responsibility might correspond to them for the non-compliance of their obligations."
"The calculation of the monetary sanctions that are established in this Chapter will be made using as a basis the daily minimum wage in effect at the economic zone and year the violation was committed."
LFT Article 994-V: "A fine will be imposed, and calculated by the terms of Article 992, equivalent to: 15 to 315 times the general daily minimum wage, to the employer who does not permit: labor authorities to practice the inspection and vigilance of that employers' establishment; or observe health and safety standards within the installation, or the measures that have been established by law in order to prevent workplace hazards. The fine will be doubled if the irregularity has not been corrected within the time period that has been granted, except when the authorities proceed in the terms of article 512-D."
LFT Article 1002: "In accordance with what was established in Article 992, for violations of labor standards not sanctioned in this Chapter or in any other guideline of this law, there will be a fine imposed upon the employer in violation equivalent to: 3 to 315 times the general daily minimum wage, taking into consideration the gravity of the infraction and the circumstances of the case."
"When the fine is imposed upon an employee, this can not exceed the amount that it indicated in the last paragraph of Article 21 of the Constitution."
In addition to the LFT, the STPS also enforced the Reglamento Federal de Seguridad, Higiene y Ambiente de Trabajo (hereafter "RFSH") and the Normas Oficiales Mexicanas (hereafter "NOMs").
The RFSH, promulgated in January 1997 with an effective date of April 1, 1997, consists of 168 articles. Of this total, 160 specify the obligations of employers and workers and set forth regulations for specific hazards and operations. Eight articles govern inspections by Labor Inspectors and penalties for violations of regulations and failure to abate such violations.
There are over 120 NOMs, the first 22 of which set forth regulations for specific hazards and operations, and the more than 100 other NOMs relate to technical specifications for protective and monitoring equipment, analytical methods, etc.
Through application and enforcement of regulations contained in the LFT, the RFSH and the NOMs, the STPS addresses all aspects of workplace health and safety, including maximum permissible exposure limits, workplace exposure monitoring, hazard controls, employee health and safety training, personal protective equipment, medical evaluation, etc.
The Petitioners will demonstrate that a persistent pattern of failure and negligence exists on the part of the STPS, despite their identification of numerous violations, at HYM.
The work stoppage of HYM workers of May 31st and June 1st has been amply described and documented in the original Submission #9702. Serious health and safety concerns were key elements of the worker action. Prior to the work stoppage, workers identified frequent occurrences of occupational illness and injuries (such as burns, broken bones, hearing loss, respiratory illnesses and loss of vision) believed to be caused by a lack of compliance with government regulations and good management practices such as local exhaust ventilation, periodic hazard identification and control, exposure monitoring, medical surveillance, health and safety training and other hazard control measures. The consistent failure to provide personal protective equipment, such as safety shoes, safety glasses, chemical-resistant gloves, respirators and face shields, also has been a great factor in the cause of injuries and acute illnesses at HYM. Following the work stoppage, members of the workers' negotiating committee made a verbal request to the Tijuana office of the STPS for a health and safety inspection of the plant by a Federal Labor Inspector, in accordance with LFT Article 511 and RFSH Article 161.
The first plant inspection took place on June 16th, and was performed by Ing. Sandra Olivia Sanchez Paez, Federal Labor Inspector, in the presence of management representative Ramona Amaya Barajas, and production worker ...... Sanchez Paez's June 16th inspection of HYM's installation was documented in a report titled "Acta de Inspección Extraordinaria de Condiciones Generales de Seguridad e Higiene" (see Exhibit A, "June 16th Inspectiion report"). In her inspection, Ing. Sanchez Paez identified 41 separate health and safety violations. These findings are listed in Tables 1 and 2 (see Appendix A), as are the articles of the LFT, RFSH and NOMs that were violated.
The identified violations can be classified into two categories:
No monetary fines were assessed against HYM for any of the 41 violations identified by Sanchez Paez despite clear language in LFT Article 994 and RFSH Article 164 prescribing the assessment of monetary penalties for violation of safety and health regulations.
In the case of category (i) violations, it is not clear why Sanchez Paez, having identified 22 infractions of the law, did not order any specific corrective actions to address 18 of these violations (see Table 1).
For the category (ii) violations, the STPS ordered HYM to undertake a specific list of corrective actions to abate the violations (hereafter "Mandated Corrective Actions, see Exhibit B and Table 2). The STPS also set a period for compliance with the Mandated Corrective Actions. Specifically, Mandated Corrective Actions #4, #5, #6, #7, #8, #9, #10, #11, #12, #13, #14, #15, #17, #20, #21, and #23 were to be completed within 15 working days. Mandated Corrective Actions #1, #2, #3, #16, #18, #19 and #22 were to be completed within 25 working days. (See Exhibit B and Table 2).
The exact date on which the STPS issued the Mandated Corrective Actions to HYM management is not certain to the petitioners. It appears from the text of the September 5th, 1997, inspection report (Exhibit C and K) that the STPS did not issue Corrective Actions from the June 16th inspection report. The only copy of the June 16th inspection report made available to HYM workers was the copy attached to a report issued following a subsequent inspection of HYM on September 5th. The copy of the June 16th report was missing its first page and was not dated. However, it is logical to assume that the 23 Mandated Corrective Actions were issued by the STPS to HYM management within a few days of the June 16th inspection.
Despite the assignment of a specific set of deadlines for abatement of the Mandated Corrective Actions, the STPS did not verify employer compliance as required by LFT Articles 540-542 and RFSH Articles 161-162. On September 5, 1997 (eighty-one calendar days and 6-0 working days after the first inspection) the STPS finally acted to check if the identified violations had been abated.
Federal Labor Inspector Cynthia Aldaña Dominguez was the inspector who returned to HYM to verify compliance on September 5, 1997. According to the text of Aldaña Dominguez's inspection report (see Exhibit C), HYM management was given notification on August 29th of the plant inspection planned for September 5th, thus giving the company further opportunity to correct unabated violations.
In her September 5th inspection, Aldaña Dominguez reported that of the 23 Mandated Corrective Actions, HYM had abated 18 violations and had not corrected six violations (see Table 3). The report's total of 24 violations, rather than the actual number of 23, is due to the fact that Aldaña Dominguez listed violation #16 in both the compliance and the non-compliance category. The unabated Mandated Corrective Actions as of September 5th, according to the Aldaña Dominguez report in Exhibit B, are #1, #2, #13, #16, #19 and #22. Specifically these unimplemented corrective actions were:
#1: Perform an investigation for the determination of fire hazards in this work site, and submit to this Federal Delegation for its evaluation, based on LFT Article 132, Sections I, XVI and XVII, RFSH Article 17-III and 28-I, and NOM-0020-STPS-1993.
#2: Measure the concentration levels of welding fumes, whose maximum acceptable limits of exposure are indicated in Table I of the NOM-010-STPS-1994, using such methods and instruments as indicated in case by the Procedure, and send the result to this Delegation in accordance with Annex I of the referred to Procedure, based on LFT Article 132, Sections I, XVI and XVII, and RFSH Article 17-IV.
#13: Locate a non-conducting cover plate over the electrical controls in the production area, based on LFT Article 132 Sections I, XVI and XVII, and RFSH Article 47.
#16: Install audible and visible fire alarms in the work site, as based on Article 132 Sections I, XVI and XVII, RFSH Article 17-V, NOM-002-STPS-1997 and NOM-027-STPS-1994.S
#19: Install local exhaust ventilation systems in the production area, based on Article 132 Sections I, XVI and XVII, RFSH Article 99, NOM-016-STPS-1994.S
#22: Make available the results of monitoring and hazard control evaluation of conditions and levels of lighting in the production area, and submit this information to Federal Labor Delegation for its evaluation, based on LFT Article 132, Sections I, XVI and XVII, RFSH Article 96, and NOM-025-STPS-1994.S
According to LFT Article 994-V and RFSH Article 168, failure to comply with STPS mandated within the given compliance period should have resulted in a doubling of the fine initially imposed (see Table 4). Moreover, LFT Article 512-D gives the STPS authority to shut down part or all of HYM for its continued non-compliance with Mandated Corrective Actions.
In this case the STPS failed to sanction the company initially and failed to do so on this second occasioin as well. No order for partial or complete closure of the operations was issued. Instead, on September 5th, the STPS gave the company an additional 10 days to come into compliance. However, STPS inspectors never returned for a third time to verify compliance with the mandated corrective actions and findings.
To date, there have not been any further actions by the STPS to verify HYM compliance with the 10-day deadline issued on September 5, 1997 or to investigate whether HYM remains in compliance with the 17 other "abated" Mandated Corrective Actions ordered on June 16, 1997.
Reports by HYM workers in November 1997 (prompted by a survey developed by the UCLA Labor Occupational Safety and Health Program UCLA-LOSH) indicate that HYM failed to abate most of the violations identified in June and September of 1997, and was once again out of compliance with the items that had been corrected following the June inspection (See Table 4, Appendix A for survey results). This survey indicates that 11 of the 23 Mandated Corrective Actions in June were never implemented by HYM.
In addition, the STPS report of the June 16th inspection report inaccurately states there were "no corrosive, irritating or toxic substances at HYM." In fact, welding operations on mild carbon steel, such as those at HYM, produce airborne concentrations of welding fumes, metal oxides, ozone and ultraviolet light, which are both irritating and toxic. Sanchez Paez implicitly recognized this fact in ordering HYM to conduct personal air monitoring of the levels of welding fumes (Mandated Corrective Action #2, see Table 2 in Appendix A) to determine the requirements of local exhaust ventilation and personal respirators. Mexican regulations specifically regulate employee exposures to toxic substances (NOM #010), and welding operations in particular (RFSH Articles 40-46). The regulations also require compliance with Mexico's hazard communication standard to communicate potential health and safety hazards and preventive measures to workers (RFSH Articles 56, 62, 63 and 65; and NOM #009); health and safety training of employees (RFSH Articles 135-141); a written safety and health program governing use of hazardous substances (RFSH Articles 55 and 66); and the installation of hazard controls to eliminate or reduce worker exposures to toxic substances (RFSH Articles 66-68 and NOM #010).
Inspector Sanchez Paez stated, in the June 16th inspection report, that three HYM workers reported to her that they had not received any health and safety training and were not provided with the appropriate personal protective equipment (page 6 of Exhibit C). However, the STPS issued no corrective action or monetary penalties regarding the violation of the hazard communication standard or its training requirements.
In January 1998, six months after the initial STPS inspection, Han Young workers held another strike at the plant and marched en masse to the Tijuana offices of the STPS to report two near-fatal accidents and continuing, unabated hazards in the plant.
On January 23, 1998, five workers narrowly missed being killed or seriously injured when an overhead crane dropped an entire chassis, weighing more than a ton, without warning in the middle of the shop floor. On the same day, another crane swung out of control while carrying a chassis and almost struck an assembly worker who was only able to avoid injury by ducking behind a metal column which was struck by the chassis.
(1) On January 8, 1998, five workers narrowly missed being killed or seriously injured when an overhead crane dropped an entire chassis, weighing more than a ton, without warning in the middle of the shop floor. On the same day, another crane swung out of control while carrying a chassis and almost struck an assembly worker who was only able to avoid injury by ducking behind a metal column which was struck by the chassis.
Repair of the cranes and installation of safety devices was one of the 23 Mandated Corrective Actions (item #7 in Table 1) issued by the STPS following the June 16, 1997, inspection. The company has failed to correct the hazard and the STPS has failed to enforce its order.
2) The STPS has failed to enforce its Mandated Corrective Action (item #19 in Table 1) requiring the installation of local exhaust ventilation in production areas to reduce the levels of airborne welding fumes.
3) The STPS has failed to enforce its regulation (RFSH Articles 124-126 and NOM 019) concerning the composition and functioning of the workplace Health and Safety Committee (CSH). Following the firing of the three worker-selected employee members of the CSH in October 1997, Han Young management appointed three "employees of confidence" (non-bargaining unit workers) as the employee representatives to the CSH. This action is in direct violation of the requirement for worker-selected representation from the independent union, a regulation which the STPS has failed to enforce.
4) The STPS has failed to conduct a third inspection after the September 1997 visit to verify abatement of the uncorrected hazards noted by the STPS itself in September, as well as other unabated hazards reported by the workers since the June 1997 inspection.
5) The STPS has failed to provide the workers or their union with a copy of the report generated by inspectors from the state of Baja California who visited the plant in December 1997. The state government refused to provide the union with a copy of the report while at the same time they informed the media that they were going to inform the Federal STPS regarding the "serious health and safety problems" at the Han Young Plant.
The Petitioners request the following actions of the U.S. NAO:
(1) To expedite a thorough review of the aforementioned pattern of failure to enforce Mexico's health and safety laws in connection with HYM, including but not limited to (a) consultation with the Mexican NAO regarding the relevant legal issues as per NAALC Article 20; (b) the convening of an investigative group of health and safety experts from all three NAALC member countries to review the allegations in this complaint; (c) the holding of hearings, if necessary in addition to the hearing now scheduled for February 18, 1998, in which Mexican authorities, independent health and safety experts, Han Young workers and management representatives on the CSH are requested to testify to determine the full extent of violations in this company and the extent of collusion between company management and enforcement officials to ignore the dictates of the law; and (d) the timely public reporting of findings of this review to include proposed changes in both company and official practices to end the current endangerment to life and limb of HYM's workers resulting from the present situation;
(2) upon completion of this review, request the U.S. Secretary of Labor to consult with her counterpart to secure swift correction of the violations, as per NAALC Article 22;
(3) If these violations remain uncorrected within 30 days following Ministerial Consultations, the U.S. Secretary of Labor should request the convening of an Evaluation Committee of Experts (ECE), as per NAALC, the enforcement of Mexico's safety and health standards as they apply in this case and to report its findings to the public;
(4) Further, if following receipt of the report of the ECE, the recommendations for corrective action have not been successfully implemented within 30 days, the U.S. should request in writing consultations regarding the persistent pattern of failure to enforce health and safety law at HYM, pursuant to NAALC Article 28;
(5) If the matter has not been resolved swiftly by this consultation, the U.S. should request to the Council the convening of an arbitral panel, which should be asked to assess a fine in an amount sufficient to cover all costs of remediation at HYM, to provide efficient and honest enforcement of health and safety laws in the maquiladora industries, and an amount of punitive damages to be paid to the victims of governmental and industrial neglect at HYM sufficient to serve as disincentive for further negligence and misadministration of health and safety laws by the Mexican authorities.
In sum, the Petitioners submit that the STPS has persistently failed to effectively enforce Mexico's occupational safety and health standards at HYM. This persistent pattern of failure includes:
The STPS' failure to enforce existing occupational safety and health regulations at HYM is all the more grievous given the serious nature of the violations which the STPS inspectors identified, but did not order to be corrected or, in some cases, did not verify correction of the mandated corrective action. Han Young's chassis manufacturing/ assembly plant performs welding operations considered a "high hazard" industry by regulatory agencies in the United States.
According to the June 16th inspection (see Table 1), HYM did not have:
Moreover, the September 5th STPS inspection revealed that violations in the areas of fire protection, welding fume exposures, electrical hazards and lighting deficiencies all remained uncorrected (see Table 3). Many of the same violations were again reported as unabated in November 1997 (see Table 4) and directly reported to the STPS on January 23, 1998, by the mass delegation of 45 workers.
Finally, it is worth noting that while the STPS failed in every instance to assess a monetary penalty on HYM for its continuing non-compliance with health and safety regulations, these fines in any case do not reflect the severity of the violations and the hazards, or represent a serious incentive for regulatory compliance. The use of a highly devalued daily minimum wage to establish the level of fines almost guarantees that the level of monetary penalty will be of no great financial significance to transnational corporations.
The failure to enforce the law on the part of the STPS for violations which they themselves have documented and identified encourages and emboldens employers such as HYM intentionally violate to health and safety regulations. This pattern of non-enforcement also has a chilling effect on workers' interest and willingness to report safety violations to the authorities charged with investigating them.
Given the serious nature of the unabated violations, the employer's non-compliance and the STPS' non-enforcement could lead to workplace tragedies of incalculable proportion. The lack of regulatory enforcement by STPS increases workers' vulnerability to injury and illness in the maquiladora workplace.
The failure of the Mexican Government to Guarantee the Rights HYM workers to participate in a workplace Health and Safety Committee free of reprisals and discrimination.
In addition to each of the NAALC agreements cited in Section A, signatory nations agreed to certain Obligations, which include promoting compliance with and effectively enforcing its labor law through appropriate government actions in areas such as encouraging the establishment of worker-management committees to address the labor regulation of the workplace [NAALC Article 3, 1(e)].
LFT Article 133-VII: "It is prohibited of the owner: To perform any act which restricts the rights of workers established by law."
LFT Article 509: "In each company or establishment, those health and safety a Health and Safety Committee that are judged necessary will be organized, composed of equal numbers of representatives of workers and employers, in order to investigate the causes of accident and illnesses, proposed by which to prevent them, and to ensure that they are enforced."
LFT Article 510: "The Joint Labor Management Health and Safety Committee which are referred to in the preceding article will do their duty without pay during the working hours."
RFSH Article 125: "A Health and Safety Committee must be constituted within 30 days of the initiation of activity by the company or establishment, and it is the responsibility of the employer to register a Health and Safety Committee with the Secretariat of Labor, in accordance with the respective Standard."
RFSH Article 126: "Members of the a Health and Safety Committee must undertake the following activities:
As noted in Section A, serious health and safety concerns were a key impetus to the May 31st-June 1st protest actions at HYM. HYM had been functioning without a CSH in violation of Mexican law, and workers went to considerable risk to their own livelihood and economic security to insist that one be formed.
Also as described in Section A, workers asked for an investigation from the STPS of suspected health and safety violations. It became clear at the opening of the June 16th STPS investigation of HYM that the company was operating without a CSH. The STPS Labor Inspector Sanchez Paez wrote in her report: "The acting inspector required of the management representative the presence of the a Health and Safety Committee (CSH) operating in this work place. The management representative made it know that a Health and Safety Committee had not been formed (Exhibit A, page 2)."
It is not clear, however, why Inspector Sanchez Paez, having clearly noted the lack of a CSH, did not insist on the formation of a CSH as one of the specific Mandated Corrective Actions issued to HYM. Moreover, Inspector Sanchez Paez did not exercise her authority to impose a fine on HYM for this violation, as required LFT Articles 1002 and RFSH Articles 166.
Following the June 16th inspection, HYM management asked the worker-selected Negotiating Committee representing HYM employees to propose three people to serve on a CSH. The three workers proposed were:
Both the CSH and the workers' negotiating committee had generally cordial dealings with HYM management during the first month of the CSH's activity. For example, on July 23rd, HYM management and the workers' negotiating committee signed several agreements, which included steps towards implementing the Mandated Corrective Actions ordered in the June 16th inspection.
These steps included: the agreement that HYM would purchase uniforms for workers; the CSH would monitor the quality and condition of filters used in respirators; local exhaust ventilation systems would be installed in the production area; inquiries would be made of the Mexican Institute for Social Security (IMSS) as to how to undertake blood lead level monitoring for HYM employees (see Exhibit C).
However, from July 25th onwards, the company's attitude towards the CSH shifted markedly. On this date, the company hired Luis Manuel Escobedo Jimenez, who proceeded to launch a campaign of intimidation, harassment and threat against HYM workers (described in further detail in the original submission).
During the latter half of July, worker members of the CSH attended a health and safety training taught by occupational safety and health experts from the UCLA Labor Occupational Safety and Health Program (UCLA-LOSH). In this training workers identified hazards in the work place through a technique known as risk mapping and also identified hazard control measures. In addition, a description of common work place accidents, and a list of preventive steps that could reduce the risk of injuries and illness at HYM was developed. From this information, a report outlining the above information was created (see Exhibit D). Due to the increasing atmosphere of intimidation, however, the worker members of the CSH elected not to submit this report to HYM management for fear that they would be disciplined or fired.
Worker CSH members' fear of reprisal from HYM management proved to be well founded. ..... was fired on October 1st; ..... and ..... were fired during the week of October 3rd. These workers had been actively organizing to guarantee the health and safety rights of HYM workers, and they believe that HYM management punished them and discriminated against them for legally exercising their legally protected and "mandated right".
The workers' right to fulfill their CSH duties specified by numerous articles in the LFT, RFSH and NOM #019, without reprisal is guaranteed by LFT Article 133. Article 133 expressly prohibits employers from performing any act which restricts the rights of workers which have been established by the law. Violation of this article is subject to monetary penalties under LFT Article 1002 of between 3 and 315 times the minimum wage.
The HYM management decision to dismiss all three worker members of the CSH came as a strong statement to workers that management was not interested in abiding by labor law nor in dealing with employees' health and safety concerns.
The Petitioners request the same action as in Section A in response to the violations that will be documented.
In sum, the Petitioners submit that the STPS failed to effectively enforce Mexico's occupational safety and health standards related to the workplace Health and Safety Committee (CSH). This persistent pattern of failure and negligence includes the following:
The failure of the STPS to order compliance with laws and regulations governing the CSH, for which violations were identified and documented by their own inspectors, violated both the spirit and letter of the NAALC articles. This negligence on the part of STPS allows employers such as HYM to harass and fire with impunity worker members of the CSHs who take their responsibilities seriously and who actively undertake the duties and activities assigned them by the regulations.
This concludes our respectfully submitted grievance and request for the U.S. NAO to investigate and order immediate action to correct the persistent pattern of failure by the Mexican Government and its representatives to effectively enforce Mexican occupational safety and health regulations at Han Young de Mexico, S.A. de C.V.
Garret D. Brown, MPH, CIH
Marta A. Segura, MPH
Basil 'Buzz' Hargrove
Those below have previously signed on
Pharis J. Harvey
Maria Estela Rios