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To the United States National Administrative Office under the North American Agreement on Labor Cooperation on Labor Law Matters Arising in Mexico

Submitted by

United Students Against Sweatshops and Centro de Apoyo al Trabajador

November 5, 2003

Table of Contents

I. Introduction
II. Tarrant México - Ajalpan, Tehuacán, Puebla
III. Violations of Domestic and International Law

IV. Analysis
V. Appendices
VI. End Notes

I. Introduction

Public submission 2003-01 to the United States NAO documents flagrant violations of legally recognized worker rights at Matamoros Garment, S.A. de C.V. This document is an amendment to that public submission and gives timely new evidence of repeated core labor rights violations in Mexico. In this latest case that occurred at Tarrant México, a plant in Ajalpan, Puebla, the actions taken by the JLCA should give impetus for swift action in this matter and in the acceptance of Public Submission 2003-01. In a {text removed} opinion written {text removed} stated the decision of the JLCA that denied the union registration was "totally contrary to the law," "lacking in elementary legal technique," and made "evident the bad faith and partiality with which it" was made. {text removed} also wrote that it "invented motives" for the JLCA which have never existed in the legal history of Mexico."¹

The violations presented here are symptoms of a significant, systemic problem in enforcement of labor law in Mexico. The U.S. NAO has documented numerous cases in which Juntas de Conciliación y Arbitraje (hereafter JLCA) have taken illegal measures, showed repeated bias against independent labor movements, displayed arbitrary behavior, and colluded with companies against workers who sought to join an independent union.

II. Tarrant México - Ajalpan, Tehuacán, Puebla

On June 10, 2003, workers at Tarrant México, a garment manufacturing plant in Ajalpan, Puebla , conducted a three-day work stoppage to demand payment of their legally-entitled benefits and improved health and safety conditions, and an end to forced overtime and verbal and sexual harassment by management and plant security guards. The Ajalpan plant, located in the ejido of Pantzingo near the maquiladora capital of Tehuacán, produced denim products for its parent company, Los Angeles-based Tarrant Apparel Group.

During the work stoppage, management informed the workers that they would only communicate with the eight elected leaders of the workers' coalition. On Thursday, June 12, the negotiating coalition met with the JLCA de Puebla and presented it with the workers' requests: payment of legally-entitled profit sharing benefits from the past three years, better treatment, improved cafeteria food and transportation, respect for their work hours, prompt overtime payment, and legal recognition of the workers' coalition. The next day the company cut in half the wages of the workers that had participated in the work stoppage.

On July 12, over 400 of the plant's 1,100 workers held a union assembly and formed the Sindicato Único Independiente de Trabajadores de la Empresa Tarrant México (SUITTAR), or the " Independent Union of Tarrant México Company Workers". In the ensuing three weeks, SUITTAR affiliated approximately 336 more workers and delivered its petition for legal recognition to the JLCA de Puebla on August 7.

On July 16, the eight members of the SUITTAR executive committee were illegally fired and physically forced out of the factory. One worker accepted {text removed} severance pay. The others attempted to return to work the next day, but factory security refused to let them in. Later two more workers accepted their severance pay.

Beginning on August 5, the company proceeded to fire more than 300 supporters of the independent union. The workers sought positive intervention on the firings from the JLCA but were denied. Reinstallation hearing dates for two groups comprising 27 workers were scheduled for October 15 and 23 by the JLCA. Subsequently, the reinstallation hearings were rescheduled, one for December 2.

Workers were continually subjected to threats that the factory would close or lose production if they continued to assert their rights. One of the fired {text removed} was faced with a legal suit. The case accused {text removed} of allegedly {text removed} threatening a security guard when {text removed} forcibly removed from the factory on {text removed}.

On September 15, the independent monitoring group, the Worker Rights Consortium, (WRC) released an interim report based on interviews with Tarrant workers in Ajalpan. It confirmed that the workers had been illegally dismissed and that their right to freedom of association was blatantly violated.²

On October 6, the JLCA de Puebla rejected SUITTAR's petition for union registration. They gave five de minimus reasons: 1) failure to present two copies of the original documents filed with the petition; 2) failure to form the union and elect the Executive Committee on two separate dates; 3) failure to correctly spell one of the 736 names on the petition; 4) failure to establish clear by-laws regarding the union's assets; and 5) unclear by-laws regarding member discipline. {text removed}.³ On October 27, SUITTAR filed its appeal of the decision before the JLCA de Puebla.

Meanwhile, in the city of Tehuacán, the Human and Labor Rights Commission of the Tehuacán Valley condemned Tarrant Apparel Group's Tarrant México division, which consists of eight plants , for allegedly having fired more workers, including pregnant women. The company allegedly failed to provide written notice or the full, legally required severance pay. Tarrant México workers at these plants (not including the independent union SUITTAR and the Ajalpan plant) formed a coalition called the Union of Tehuacán Workers and have staged protests at the offices of the JLCA de Tehuacán.

III. Violations of Domestic and International Law

A. Mexican Federal Labor Law

Mexico's Federal Labor Law covers all labor and laborers in Mexico.

The right of workers to exercise freely to establish and join organizations to further and defend their interests and the right of organizations to collectively bargain was violated in the case of Tarrant México workers when the management fired workers for union organizing attempts and when the Mexican Government through the JLCA of Puebla failed to provide a fair registration process.

Freedom of association, the protection of the right to organize, and the right to collectively bargain are protected under the following Mexican Federal Labor Laws:

Article 133, which prohibits the employers from forcing the workers to join a trade union that is not of their choice; and which prohibits company participation in the creation of any trade union of the workers.

Article 357, which states that workers have the right to form unions, without any previous authorization.

Article 359, which states that unions have the right to write their statutes and regulations, elect freely their representatives, organize their administrations and their activities and formulate their own program of action.

Article 365, which outlines the requirements for the registration of any union through the Junta, all of which were met by SUITTAR.

Article 366, that explicitly lists the only reasons for denying a registration, none of which apply to the SUITTAR registration.

Article 369, which explicitly lists the only reasons that a union registration can be cancelled, none of which apply to the SITEMAG registration.

Article 370, which states that unions are not subject to dissolution, suspension, or cancellation of their registration by administrative route.

Article 685 and 686, which place the obligation of a fair registration process on the Junta and explicitly require them to correct any technical deficiencies in the registration process, helping the applicants correct these errors, and prohibiting them from denying registrations on such technical grounds.

The Mexican government failed to meet its obligation to prevent occupational injuries and illnesses, in prescribing and implementing standards to minimize the causes of occupational injuries and illnesses because of the persistent, unsanitary conditions of the cafeteria, and occasions in which employers verbally abused workers.

These conditions violate the following Mexican Federal Labor Law provisions:

Article 51, which states that no worker should be placed in a dangerous working conditions that might threaten their health, that under no circumstances may the employers threaten, mistreat, physically assault, or pursue such actions against a worker or their relatives, and that prohibits employers from mistreating or making threats toward workers or their families.

Article 132, which establishes that the "patrons" are legally obligated to fulfill the legal requirements for security and hygiene in all places that work is executed, provide preventative medicine as the sanitary authority determines, and which explicitly prohibits employers from verbally abusing workers.

Finally, the Mexican Government has failed to meet its obligation to enforce minimum employment standards, such as proper payment of wages. These rights of Tarrant México workers were violated by the company's failure to pay contractually agreed wages and failing to pay proper severance packages. Furthermore, many of the firings failed to go through the proper process, and those that did reveal the JLCA of Puebla's failure to properly enforce Federal Labor Law.

These conditions violate the following Mexican Federal Labor Law:

Article 33, which nullifies resignations of workers made on the account of unpaid and still owed wages, still receivable indemnifications, or other benefits offered in any form; which establishes that legal resignations require a written statement that explicitly states the worker's understanding of their rights; which states that this statement must be approved by the Junta, and that they should be approved only when a worker's rights have not been violated.

Article 34 which states that all agreements between unions and management that affect the rights of workers are subject to the following conditions: that the agreements only affect the future so that past benefits or payment owed are not forgiven, that no agreement refer to particular or individual workers, and that when reductions in work occur, it falls in line with Article 437 (see below).

Article 51, which states that workers must be paid on the date and place that they are normally paid.

Article 88, which states that "material" workers should have a pay period no greater than one week and all other workers should have a pay period no greater than fifteen days.

Article 90, which states that the minimum wage is the smallest wage that a worker should receive for a single workday.

Article 109, which establishes that workers must be paid according to all previous arrangements during working hours or immediately after working hours.

Article 132, which establishes that it is the obligation of the "patron" to pay the workers according to the effective norms of the company.

Article 427, which establishes that the company must do the following: if it suspends under 427 part i, that it inform the Junta of the suspension prior to its occurrence for their approval or disapproval as outlined in Article 782; if it suspends under part iii or v, the employer, prior to suspension, should obtain the authorization of the Junta and follow the stipulations of the collective conflicts of economic nature; if it suspends under part ii or vi, the employer, prior to suspension, should obtain the authorization of Junta in compliance with the stipulations contained in Article 782 and in the other Articles following.

Article 428, which states that the company must take into account when suspending workers the length of service of employees, explicitly stating that workers who have a shorter period of previous employment are suspended first.

Article 437, which states that when dealing with a reduction in the number of workers in a factory, the skill level and the period of previous employment must be taken into consideration.

Article 438, which states that when new jobs are added or new jobs with similar functions are created, the employer has an obligation to follow the stipulations regarding hiring for those positions in Article 154.

Article 782, which states that the Junta has the right and the obligation to examine all relevant documents when clarifying legal matters or approving or disapproving of legally mandated requests.

B. Application of International Agreements

Article 133 of the Mexican Constitution incorporates all legal obligations and recommendations under ratified international treaties into binding law throughout México. Mexico has ratified several international treaties that relate to the right of freedom of association and minimum employment standards. These ratifications serve as the basis for the petitioners to allege violations of Mexico's international obligations as follows:

As party to ILO Convention 87⁴, Mexico has an obligation to allow for the right to freedom of association in the workplace. Furthermore, the ILO has declared that all countries that are members of the ILO must "adhere to ILO Convention No. 87 as a condition of membership, regardless of whether they have ratified it."⁵ In the case of the Tarrant México workers, the freedom of association was violated by the company's attempt to intimidate union organizers and supporters by termination of employment and by the JLCA of Puebla's failure to provide a fair registration process for union registration.

As a party to the American Convention on Human Rights⁶, Mexico has an obligation to enforce the right to freedom of association, specifically including labor associations, as outlined in Article 16. Mexico has violated this obligation by allowing the Junta de Puebla to act in the interest of the company, rather than the workers, by failing to allow and clear obstacles for the registration of SUITTAR.

As a party to the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador)⁷, Mexico has a legal obligation to enforce the right of all people to organize trade unions and join a union of choice, as outlined in Article 8. Mexico has failed to enforce this principle by failing to allow the SUITTAR union to be recognized on minor technical grounds and newly created arbitrary regulations.

As party to the International Covenant on Economic Social and Cultural Rights⁸, Mexico has a legal obligation to enforce the following principles:

As party to the International Covenant on Civil and Political Rights ⁹, Mexico has a legal obligation to enforce the principle that all people shall have the right to freedom of association, including the right to form and create trade unions, as outlined in Article 22. The denial of the SUITTAR registration on technical grounds and the failure of the JLCA of Puebla to reinstate workers fired for union activity reveal Mexico's failure to produce a good faith effort to enforce this obligation.

IV. Analysis

The case of the Tarrant México workers reveals that the problem clearly lies in the fundamental non-enforcement of Mexican Labor Law by the Mexican Government. Public Submission 2003-01 has provided three separate examples throughout a significant range of time that reveal that the Mexican Government has failed to protect its citizens through the enforcement of labor law relating to the right to freedom of association and collective bargaining, minimum employment standards, and occupational health and safety. The continued denial of union registration on minor technical grounds and arbitrary newly created rules serves neither the interest of NAFTA nor the NAALC. Furthermore, the fundamental failure of the Mexican Government to ensure that workers are paid a minimum wage, that they are paid their wages as scheduled, that they enjoy job security without regard to their union support, and that they work in a safe and healthy environment reveals that there is a fundamental problem with the enforcement of national and international laws in Mexico.

NAFTA and NAALC exist to provide not only free trade but also the furtherance of labor rights and assurance that trade will not deteriorate labor rights. In order to ensure that this objective is met, we urge the United States NAO and the Secretary of Labor to accept this crucial public submission and assist the workers and the Mexican Government in resolving these issues immediately.

V. Appendices

Appendix A

{text removed} October 13, 2003

Regarding the denial of the legal recognition petition ("registro") of the INDEPENDENT UNION OF TARRANT MÉXICO COMPANY WORKERS ("SUITTAR" or "SINDICATO ÚNICO INDEPENDIENTE DE TRABAJADORES DE LA EMPRESA TARRANT MÉXICO S. de R.L. de C.V."), {text removed} will take the liberty of making the following observations:

The denial of the registro is absolutely lacking a legal foundation. Each and every one of the reasons on which the denial is based contradicts Article 366 of Mexican Federal Labor Law, which, to the letter, states:

As observed, the Law is very precise about the causes for granting a union registro and this Article is intimately linked with Article 365 that establishes the requirements for forming a union. For a better understanding we reproduce the content of Article 365.

ANALYSIS OF THE OCTOBER 3, 2003 RESOLUTION HANDED DOWN BY THE JUNTA DE CONCILIACIÓN Y ARBITRAJE OF THE STATE OF PUEBLA

The causes for the denial are not in accordance with Article 366 that, in a limited way, establishes the causes for denial.

The first cause for the denial is not having submitted the documentation with duplicate copies. This is false since both the original and a copy were submitted. It was noted in {text removed} revision that the documentation was presented with an annexed copy. The registering authority plays a word game, wanting us to understand that the word "duplicate" signifies two additional copies, which is absurd. But nevertheless supposing that it had been this way, it would have been sufficient to just require one additional copy.

The second cause for the denial is sustained in that the act of forming the union and the election of the executive committee were carried out at the same time during the union assembly held on July 12, 2003. According to the registering authority these should have been independent legal proceedings. This cause is totally unfounded because, in practice, no arrangement exists to suggest that this is absurd. Never in the history of {text removed} labor law has such nonsense occurred to an authority, above all because the Law's requisites compel the formation of the union and the election of the executive committee; that is, neither of the two can be omitted. All unions include these in the same act, where first the union is formed, the by-laws are approved and consequently the executive committee is elected. That is why this argument is no more than a display of bad faith by the part of the registering authority. There has never been a judge or an authority that has come up with this objection, giving you an idea of its irrelevancy.

The third cause for the denial refers to a supposed omission involving aspects of the union's assets. This is also absurd since no such objection is specified, the Law does not impose specific content and in the proposed by-laws there are clear rules about union assets. Article 42 has five fractions that make reference to the acquisition of assets, inventory and the utilization of them. Further on Article 43 refers to union dues and their amounts, Article 44 makes reference to the accounting and reporting of union assets, and Article 45 details the procedure regarding the liquidation of assets. Obviously the objection infringes upon union autonomy because every organization can freely decide these aspects. It is a lie that such standards do not exist, since they seem to be clearly established.

The fourth cause clearly shows bad faith in establishing as a cause for denial the supposed inclusion of {text removed}. . The authority did not pay attention that {text removed} clearly appears on the list of affiliates at number four, which clearly demonstrates that this is a small, totally comprehensible typing error if we take into account that the list contains 728 names. On the other hand the first name and the two last names are plainly identified, so this insignificant detail can, in no way, constitute the denial of the union's registro. And supposing that this person's name did not appear, this is still not a motive for denial, because in that case the authority should not take into account the designation of the President of the Autonomous Commission of Honor and Justice.

It must not be forgotten that the registro procedure is of an administrative nature. In the case of a minor error, the petitioner must be notified so that they can correct it. In unions of thousands of workers, one can imagine that printing errors easily occur which could have been the reason for the denial of these union organizations' registries. Again we are talking about an absurdity without precedent in the history of registering unions. Obviously they had to go to such extremes because the petitioners duly complied with the law, which is why the registering authority felt obliged to invent ridiculous reasons.

The fifth reason for the denial again refers to the by-laws in the section on disciplinary corrections, pointing out that these are obscure and imprecise by not stating the terms and the time periods regarding sanctions and the suspension of rights. It must be clarified that no legal arrangement exists obligating the registering authority how to act, and clearly, in the fourth chapter of Articles 9 through 14, three sanctions are established: warning, suspension and expulsion. In fraction two of this Article it is clear that the suspension can last up to six months, the motives of the suspension and the expulsion are precisely determined, and Articles 12, 13 and 14 establishes the procedure for opposing and appealing. In conclusion the argument on which the denial is based is false, independently of which if there did not exist such a period (though it does exist) it would still not be a reason for denial.

As a general conclusion we can affirm that the resolution is totally contrary to the law, lacking in elementary legal technique, making evident the bad faith and partiality with which it is conducted, and on the other hand it is totally original given that it invents motives that, in the legal history of {text removed}, have not occurred to any judge. Therefore it obviously can be challenged in various ways. And referring to {text removed} legislation, within the following 15 working days it is feasible to challenge it through an indirect appeal before the competent District Judge. On other grounds it signifies a flagrant violation of Convention 87, which constitutes effective standards in {text removed} regarding Constitutional Article 133, and on other grounds it contradicts the international commitments in distinct matters assumed by another government to respect the freedom of association.

SINCERELY,


{text removed}

Appendix B (Attached)

October 3, 2003, official rejection of SUITTAR petition for union registration by Secretaria General "A" Junta Local de Conciliacion y Arbitraje del Estado de Puebla.

Appendix C (Attached)

August 7, 2003, documents presented by SUITTAR for union registration to the Junta Local de Conciliación y Arbitraje del Estado de Puebla.

1) July 12, 2003, Acta Constitutiva del SUITTAR
2) July 12, 2003, List of names and addresses of 728 SUITTAR members
3) SUITTAR Estatutos
4) Constancia de la Asamblea en la que se designó la directive del SUITTAR

VI. End Notes

1. See {text removed} by {text removed} October 13, 2003, Appendix A.

2. See September 15, 2003 Interim Report: Worker Rights Consortium Inquiry into Allegations of Labor Rights Violations at Tarrant Ajalpan at http://www.workersrights.org/.

3. See {text removed} by {text removed} October 13, 2003, Appendix A.

4. Ratified by Mexico April 1, 1950, entered into effect July 9, 1948.

5. "NAALC - Principle Focus." Available at http://www.naalc.org/english/publications/ bulletin1vol1_8.htm

6. Ratified by Mexico on March 24, 1981.

7. Ratified by Mexico on April 16, 1996.

8. Ratified by Mexico on March 23, 1981.

9. Ratified by Mexico on March 23, 1981.