For Release: May 27, 1998
Pharis Harvey, Executive Director, 202-347-4100 ext.1
Terry Collingsworth, General Counsel, 202-347-4100 ext.2
Technical information: Lance Compa, Cornell School of Industrial and Labor Relations, 607-255-7550
A coalition of Mexican trade unions and farmworker organizations today filed a wide-ranging complaint under NAFTA's labor side accord alleging failure of U.S. labor law to protect workers' rights in the Washington State apple industry. The complaint cites the lack of legal protection for farmworker union organizing and bargaining rights, discrimination against migrant workers, widespread health and safety violations, budget cuts in U.S. enforcement agencies like the NLRB and OSHA, and employers' use of threats and intimidation in recent union representation elections at two major apple packing and shipping plants.
The petitioners called on the Mexican government to pursue avenues of review, consultation, evaluation, and arbitration available under the NAALC for "persistent pattern of failure" by U.S. labor law authorities to prevent workers rights violations in the Washington State apple industry. Arbitral rulings could result in government fines or loss of NAFTA tariff preferences for Washington State apple producers.
The Union Nacional de Trabajadores (National Workers' Union -- UNT), a new labor federation formed in 1997 by dissident Mexican unions representing 1.2 million workers, filed the complaint with Mexico's Department of Labor under the cross-border complaint procedures of the North American Agreement on Labor Cooperation (NAALC). The UNT was joined in the complaint by another federation, the Frente Autentico del Trabajo (Authentic Labor Front -- FAT) and its metalworkers affiliate, known by its acronym STIHMACS. The Frente Democratico Campesino (Democratic Farmworkers Front FDC) also signed the complaint.
Over 45,000 workers work in the orchards and warehouses of the largest apple producing industry in the United States. Many come from the Mexican states of Michoacan and Oaxaca. Mexico is the largest single export market for Washington State apples, and the industry receives a $20 million subsidy from the U.S. government to promote overseas sales. Jorge Robles, a spokesman for the UNT, said "whats going on is a veritable social dumpingof apples exported to Mexico, with companies tripling their profits by violating workers rights."
Freedom of Association and Right to Organize for Farmworkers
The new NAALC complaint points out that farmworkers throughout the United States, not just in Washington, have no protection of the right to organize or to bargain collectively, another apparent violation of the first two "labor principles" that the U.S. pledged to guarantee when it signed the NAALC.
Health and Safety Violations
Safety violations and chemical hazards are frequent in apple packing and shipping plants, the complaint alleges, and orchard workers are dangerously exposed to toxic pesticides. Federal and state job health and safety officials have not been effective in enforcing relevant laws, petitioners claim. They cited an internal government document declaring that the pesticide enforcement agency "has done little or nothing to improve the repeated pattern of deficiencies in is investigations and enforcement of pesticide regulations."
Discrimination against Migrant Workers
The NAALC petitioners also claim that U.S. law and practice discriminates against migrant workers in connection with their right to organize, workers compensation, temporary worker programs, housing, health care, family unification, and other matters. One example they cite involves discrimination in Washington State's workers compensation law, which provides lower benefits for migrant workers than for resident workers.
The apple industry NAALC complaint points to "severe" budget cuts affecting U.S. agencies, especially the National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA). The Seattle regional office of the NLRB has seen staff reductions and budget cuts that make it impossible to effectively enforce the National Labor Relations Act. For example, the office has only 2 Spanish-speaking attorneys serving the entire state of Washington, and they are constrained by budget cuts from carrying out an effective investigation of workers rights violations in the state.
Mexican UNT representatives observed recent elections at two major apple industry packing and shipping facilities. In their NAALC complaint, petitioners argue that company managers advised by apple industry anti-union strategists threatened to call immigration officials into the plants if workers voted for Teamsters union representation. Plant closing threats and threats of dismissals and layoffs, surveillance and interrogation of union activists, and other tactics also marred the elections at Stemilt Growers and Washington Fruit company warehouses in January, 1998.
Such tactics are illegal under U.S. labor law. The union lost both elections by narrow margins, and filed unfair labor practice charges under domestic U.S. law, the National Labor Relations Act (NLRA). Last week, the Seattle office of the National Labor Relations Board (NLRB) issued a preliminary finding of merit in some of the unions charges. The charges must now be proven in an administrative trial in July.
However, the NLRB refused the unions request to seek an order for the companies to recognize the union and bargain in good faith. The Mexican NAALC complaint argues that even if the companies are found guilty of unfair labor practices and a new election is held, deficiencies, delays and weak remedies in U.S. labor law nullify the protective intent of the law. For example, the intimidating effects of the employers earlier conduct destroys any possibility of a fair election.
The complaint argues that such inadequate enforcement violates labor principles 1 and 2 of the NAALC, covering freedom of association and protection of the right to organize, and the right to collective bargaining. It also violates U.S. obligations under the NAALC to provide timely recourse and effective remedies for labor law violations.
Pharis Harvey, Executive Director of the Washington-based International Labor Rights Fund (ILRF), a petitioner in several other NAALC cases, called the new complaint "an important step for scrutinizing labor law enforcement in the United States, where there are severe problems of discrimination against workers who try to form unions and where migrant workers face widespread labor and human rights violations."
Pointing out that 9 of 10 earlier NAALC complaints involved alleged failures of Mexican labor law enforcement, Harvey said "for the NAALC to contribute to advancing labor standards in all the NAFTA countries, the United States has to be just as willing as Mexico to have its labor law system examined in light of the NAALC labor principles. This case adds more balance to the NAALC process. Mexico is not the only country in North America where workers rights are violated."
ILRF General Counsel Terry Collingsworth said the apple industry complaint is "by far the broadest of the 12 cases now filed under the NAALC." He pointed out that the new complaint cites labor law violations and inadequate enforcement involving 7 of the NAALC's 11 labor principles.
Most earlier cases addressed single union organizing issues, said Collingsworth, while 2 cases added health and safety concerns. Another case involves pregnancy testing and denial of employment to pregnant workers in the maquiladora factory zones along the U.S.-Mexico border.
The Washington State apple industry complaint covers NAALC labor principles on the right to organize, collective bargaining, minimum labor standards, non-discrimination in employment, job safety and health, workers' compensation, and migrant worker protection, Collingsworth noted. "This case could provide the most comprehensive test of the effectiveness of NAFTAs labor side agreement," he concluded.
Under NAALC procedures, Mexico's National Administrative Office (NAO), the labor department branch that receives complaints, conducts a review that may involve expert consultations and information sessions, followed by a written report "within a reasonable period" but with no fixed deadline. Petitioners in the Washington State apple case requested the NAO of Mexico to have an independent expert visit Washington State for an on-site investigation of labor rights violations and working conditions in the industry.
Consultation among NAALC country secretaries of labor may follow the NAO report. After such consultations, a 3-person committee of outside experts may be formed to evaluate the allegations of the complaint. Then, a 5-person arbitral panel could take up matters of minimum labor standards or health and safety issues, which could lead to fines against the U.S. government or loss of NAFTA tariff benefits for the Washington State apple industry.
What is the NAALC?
The North American Agreement for Labor Cooperation is the side agreement to NAFTA intended to advance workers' rights and living standards by promoting effective labor law enforcement in North America. A companion North American Agreement for Environmental Cooperation was also negotiated as a NAFTA supplement. The side agreements took effect with NAFTA on January 1, 1994.
Who implements the NAALC?
A Commission for Labor Cooperation composed of a ministerial council and a permanent Secretariat is charged with implementing the agreement. The labor secretaries of the three NAALC countries make up ministerial council.
A 15-person staff of lawyers, economists, and labor policy experts -- 5 from each country -- serve in the Dallas-based Secretariat of the Commission for Labor Cooperation. The Secretariat produces comparative research reports and assists the council and groups of outside experts on evaluation committees and arbitral panels.
In each country's labor department, a domestic National Administrative Office (NAO) receives complaints, officially called "public communications," and conducts initial reviews and reports on events and practices giving rise to complaints.
Together, the Commission and the NAOs undertake cooperative activities such as seminars, workshops, and conferences to promote understanding of each others' labor law systems and to share "best practices" in labor law enforcement.
What are the labor principles of the NAALC?
1) Freedom of association and protection of the right to organize
2) The right to bargain collectively
3) The right to strike
4) Prohibition of forced labor
5) Child labor protection
6) Minimum labor standards with regard to wages, hours and conditions of employment
7) Non-discrimination in employment
8) Equal pay for equal work
9) Health and safety protection
10) Workers' Compensation
11) Migrant Worker Protection
What are the governments' obligations under the NAALC?
1) A general duty to provide high labor standards
2) Effective enforcement of labor laws
3) Access to administrative and judicial forums for workers whose rights are violated
4) Due process, transparency, timeliness, and effective remedies for labor rights violations
5) Public availability of labor laws and regulations, and opportunity to comment on proposed changes of laws and regulations
6) Promoting public awareness of labor law and workers rights.
How are complaints treated under the NAALC?
A complaint about events in one of the NAALC countries must be lodged with the NAO of another country. The NAO reviews and reports on the case, and may recommend ministerial consultations. Such consultations generally have led to a research program and related workshops and conferences. All 11 labor principles are subject to review and consultation.
2. Evaluation Committee of Experts (ECE)
In trade-related matters inv