Section III: Submission of Public Communications

A. Description of Submission Procedures

Implementing Article 16(3) of the NAALC, all three countries have provided a procedure for individuals or groups to file submissions to an NAO that violations of labor law have occurred in another country and that the law has not been enforced to correct that violation. Inquiries into these specific violations provide the basis for inquiring into the systemic failure to enforce labor laws.

The submission procedures in these countries share the following steps.

First, individuals or organizations make a submission to the NAO alleging specific violations of labor law in another country and that there has been a failure in that country to enforce its applicable labor laws. If the NAO finds that the submission meets the criteria for acceptance, it accepts the submission for review.

Second, the NAO obtains additional information from those making the submission, the employers named in the submission, the NAO in the other countries, and from experts. It may also canvass available literature on relevant labor laws and practices, government reports, and other sources of information.

Third, the NAO issues a Public Report of Review summarizing all of the information obtained concerning the events and conditions giving rise to the submission. It also describes the applicable labor law of the other country, the institutions and procedures for administration or enforcement, with findings as to the practices and problems in the enforcement of the relevant labor laws.

Fourth, the NAO, in its Public Report of Review may recommend that, because serious questions are raised concerning compliance with and effective enforcement of the relevant labor laws, Ministerial Consultations are appropriate to address the problem. Ministerial Consultation may result in an agreement as to actions to be taken in response to the problems discussed in the Public Report.

In the Canadian procedure, as described in the NAO Guidelines for Public Communication, because of the Canadian federal structure, decisions are made in consultation with the Canadian Inter-Governmental Committee. A public meeting or consultation may be part of the process but may be omitted. The National Administrative Office of Mexico has a similar procedure for public submissions. The Mexican procedural guidelines leave the possibility of informative sessions, but in the one submission the Mexican NAO handled, no public hearing was held because the Mexico tradition does not favor public hearings.

The United States NAO, which has received nine of the 10 submissions, holds a public hearing on matters related to the review, and all interested parties and those with relevant information are heard. This includes those who made the submission, the employers named in the submission, and employees involved in or having knowledge concerning the events and conditions giving rise to the submission. At the outset of the hearing, the NAO Secretary makes clear that the purpose of the hearing is "not to adjudicate individual rights" and that it is "not an adversarial proceeding." Rather, the purpose of the hearing is "to gather information to assist the NAO in preparing its individual report."

The Mexican NAO has rejected the public hearing procedure established in the U.S. NAO guidelines. It has stated that such a procedure is adversarial in nature and has an appearance of trial, which is contrary to the spirit of cooperation of the NAALC. From Mexico's point of view public hearings are not efficient in gathering all the parties to conflict.

B. Summary of Submissions

There have thus far been nine submissions made to and accepted by the United States NAO, and one made to and accepted by the NAO of Mexico. The issues presented in each submission, the conclusions reached in the Public Report of Review, and the action taken will be briefly summarized.

1. Submissions 940001 and 940002

These two submissions to the United States NAO were investigated and heard together because of their common factors and location.

Submission 940001 was made by the International Brotherhood of Teamsters concerning operations of the Honeywell plant in the State of Chihuahua. The allegations were that employees were discharged or forced to resign because of their union membership and activity. They were members of a union affiliated with the Frente Autentico del Trabajo (FAT), an independent union not a part of the Confederation de Trabajadores Mexicanos (CTM), the official or government-supported union.

The submission alleges that Honeywell fired approximately 20 employees. They were told that they were being fired for their union activities and that to collect severance pay they had to sign resignation forms waiving their ability to file claims protesting their dismissal. All of the dismissed workers signed resignation forms or settled with the Company for cash payments.

Submission 940002 was filed by the United Electrical and Machine Workers concerning operations of the General Electric Plant in the Ciudad Juarez.

The submission alleges that the Company had engaged in various activities to curtail organizing activities and distribution of literature and dismissed as many as 20 union activists. The submission alleges that the dismissed employees were pressured into signing forms waiving claims to reinstatement in order to obtain severance pay. All but two accepted severance pay or reached settlements with the Company. Two filed petitions with the local Conciliation and Arbitration Board (CAB), which were still pending at the time of the Report.

The submission also raised allegations of violations of Mexican health and safety laws and failure to pay overtime. These alleged violations had not been brought to the attention of Mexican authorities with jurisdiction over the matters.

The submission charged that the Company's conduct violated the Labor Principles of Annex 1 of NAALC, the Constitution and Federal Labor Law of Mexico. The submission also charged violations of Conventions 87, 98, and 170 of the International Labor Organization (ILO), the Universal Declaration of Human Rights, and the United Nations Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, all guaranteeing freedom of association and all ratified by Mexico.

The Report stated that the objective of the review is to gather information to assist the NAO to better understand and publicly report on the Government of Mexico's promotion of compliance with and effective enforcement of its labor law through appropriate government action.

The Findings and Recommendation on these two submissions recognized "the difficulties in establishing unions in Mexico, the hurdles faced by independent unions in attaining recognition, company blacklisting, and government preference for and support of official unions." It also recognized that "Apparently workers do not have the financial resources to pursue reinstatement," the delays of the CAB and related economic hardship lead them to waive their claims in order to obtain severance pay. A consultant's report found that in the state of Chihuahua CABs resolved 90 percent of complaints in an average of seven or eight months, however, and have been effective in improving the quality of decision making and reducing the time in handling cases. Another report concluded that CABs generally are considered fair and impartial. This has been disputed.

In its Report, the NAO stated that, although the discharged workers could present their cases to the CAB, it "understands the economic realities facing these workers." It further stated that

"dismissed workers were aware of their options under the law and chose to take severance over reinstatement. Therefore, it is very difficult to ascertain whether there has been a violation of freedom of association when severance is preferred over a review of the case by a CAB..."

"Since workers for personal financial reasons accepted severance, thereby preempting Mexican authorities from establishing whether the dismissals were for cause or in retribution for union organizing, the NAO is not in a position to make a finding that the Government of Mexico failed to enforce its labor laws."

There was no mention in the Public Report that the submission alleged violations of ILO Conventions or other treaties guaranteeing freedom of association ratified by Mexico. Nor was there mention that the delays of the CABs might violate the procedural guarantees of Article 5 of the NAALC.

The NAO did not recommend Ministerial Consultation, concluding:

"The information available to the NAO does not establish that the Government of Mexico failed to promote compliance with or enforce the specific laws involved. However, the NAO shares the submitters' concerns about the vital importance of freedom of association and the right to organize and the implications for workers of the failure of government to protect such rights. Accordingly, the report makes several suggestions for cooperative activities under Article 11 of the NAALC on the issues of freedom of association and the right to organize and form public information and education programs regarding NAALC."

This submission was filed with the United States NAO by the International Labor Rights Education and Research Fund, the Association Nacional de Abogados Democráticas, the Coalition for Justice in the Maquiladoras, and the American Friends Service Committee concerning operations of the Sony Corporation in Nuevo Laredo.

The submission alleges that the Company has violated the law in (1) scheduling hours of work, (2) interfering in election of union delegates, (3) collaborating with the police in brutalizing strikers, and (4) harassing, intimidating and dismissing activists in an independent union. It also alleges that the Government had arbitrarily refused to register the independent union.

The submission charged that the Mexican Government had failed to enforce Article 13 of the Constitution, various provisions of the Federal Labor Laws, and Conventions 87 and 98 of the International Labor Organization.

The NAO, in accepting the submission, stated that its revision would "focus on compliance with, and effective enforcement of, labor laws that guarantee the right of freedom of association and the right to organize freely and prohibit the dismissal of workers because of efforts to exercise those rights."

The Findings in the NAO Report were as follows:

(a) Dismissal

On the basis of the evidence "it appears plausible" that they were discharged for union activities, and "economic realities facing these Mexican workers make it very difficult to seek redress from the proper Mexican authorities." More importantly, the workers repeatedly articulated their concern about impediments to obtaining important remedies.

(b) Union Elections

In the face of the evidence, "it remains unclear whether there are applicable laws dealing with these issues and whether the workers have any viable recourse against improper union actions. The sole remedy seems to be within the union and this raises questions regarding availability of private action and procedural guaranties addressed in Articles 4 and 5 of NAALC." The question raised was not discussed.

(c) Work Stoppage

The evidence of whether there was police violence is conflicting.

(d) Union Registration

The CAB denied registration on the grounds that the application did not state the purposes of the union in the precise statutory language and there were no duplicate copies. Expert testimony indicated that the CABs are specifically empowered to remedy minor administrative deficiencies such as lack of duplicate copies. An amparo seeking reversal of the CABs ruling was denied. No appeal was taken from this denial.

The delay caused by the denials "arguably caused the interested workers irreparable harm" in that those who signed the original petition were subsequently dismissed. "Certainly, the appearance that workers were dismissed for engaging in union activity might have a negative impact on future efforts." Further, the CAB acknowledgment in its denial of registration that the Secretary General of the FTM had filed a letter opposing registration "tends to support" that the CAB permitted the FTM union to be involved when it had no legitimate interest or role. There were, however, no findings on possible violations of procedural guarantees of Article 5 of the NAALC.

The NAO stated that it would continue to pursue trinational programs under the NAALC for exchanges on laws and procedures relating to the various questions raised. In addition it would conduct a study of the practices of local CABs with respect to workers' complaints of unjustified dismissals.

Finally, because of the serious questions raised about the ability of independent unions to obtain registration, the NAO recommended Ministerial Consultation "to further address the operation of the union registration process."

Ministerial Consultation on 940003

As a result of Ministerial Consultation, the two Secretaries of Labor negotiated an "Agreement on Implementation," which were published in English and Spanish. This Agreement provided for three activities: (1) a joint work program, which consisted of three trinational public seminars on union registration and certification; (2) a study by independent experts on Mexican labor law dealing with union registration; and (3) a series of meetings between officials of the Mexican Department of Labor and Social Welfare and parties to the union registration situation at Sony. All of these activities were completed within the time limits prescribed by the Agreement.

Follow-up Report on 940003

Fourteen months after its Report and six months after the Report on Ministerial Consultation, the NAO issued a Follow-up Report on Submission 940003.

1. All of the workers dismissed by Sony remain unemployed, and it is believed that they have been discharged.

2. The opposition party, the National Action Party (PAN), proposed legislation that would make registration a procedural formality with no discretionary authority in local individuals. The proposed legislation would transfer jurisdiction over the Federal and State Conciliation and Arbitration Boards to the judicial branches and apparently end the current practice of appointed tripartite tribunals, which has led to allegations of inherent bias and lack of impartiality of the CABs. There is no indication as to whether this legislation has any possibility of adoption.

3. The Government of Mexico promoted tripartite negotiations leading to the signing of a document "Principles of the New Labor Culture" which addresses, among other things, the issues of union democracy and union registration in very general terms. The legal or practical effects of this document are not discussed.

4. The Supreme Court of Mexico, in two unanimous decisions not related to NAALC submissions, found provisions of two state statutes which prohibited employees from forming more than one union in a workplace to be unconstitutional.

This submission was filed by the United Electrical Radio and Machine Workers as a supplement to Submission 940002 concerning the situation at the General Electric Plant in Ciudad Juárez.

The submission alleges that General Electric engaged in a wide range of practices to bribe, threaten, intimidate and discourage workers from supporting the union prior to an election to determine majority support. As in Submission 940002, the Union charged that the Company had violated the Labor Principles contained in Annex 1 of the NAALC and various treaties ratified by the Government of Mexico.

The submission argued that the review should not be forestalled on the grounds that the incident had not been processed under Mexican Labor Law because under Mexican law violations of this sort may not be challenged by a labor union which has not been recognized as representative of the workers in question. The NAO accepted the submission.

Subsequent to the NAO Report on Submission 940001 and 940002, the union withdrew the submission. Its stated grounds were:

1. the hearing was scheduled 500 miles from the plant, which made it too costly for workers to attend and made them vulnerable to retaliation;

2. the Report on Submission 940002 was "blatantly inadequate" as it did not consider the health and safety violations, ignored evidence of employer anti-union activities, and did not consider that Mexican law was violated by conditioning severance pay on waiving rights guaranteed by Conventions 87 and 98 of the ILO, which are binding under Mexican law; and

3. the NAO failed to conduct a meaningful investigation of the submission.

In response, the NAO explained its purposes and procedures, including the following:

"It appears that your organization misunderstands our efforts to make the submission process a viable information-gathering process that will further the goals of the North American Agreement on Labor Cooperation..."

"The type of investigation urged by your organization is beyond the scope of the authority provided to the U.S. NAO."

"The focus of the NAO's review and report is whether Mexico is enforcing its domestic labor laws. To further our understanding of Mexico's labor law, particularly enforcement mechanisms and remedies as available to Mexican workers and unions, the U.S. NAO uses several methods of information gathering. Public hearings are one opportunity for submitters..."

"These hearings are not judicial or adversarial proceedings, but information-gathering tools which allow for public participation in the NAO review process. Fact finding about the company is not the focus of the NAO's review."

4. Submission 9501

This submission was filed with the NAO of Mexico by the Telephone Workers of the Republic of Mexico (STRM) concerning the decision by Sprint Corporation to close its subsidiary, La Conexion Familiar (LCF), a Latino telemarketing facility in San Francisco.

The allegation was that when workers at LCF started to organize, the union and the company agreed to a consent election. However, in the weeks before the election, workers were intimidated and told that the plant would move if the employees continued to organize. One week before the scheduled election Sprint closed the plant and terminated 200 employees, mainly Latino women.

The allegation was that this was done for the purpose of defeating the union's organizing drive and denying the employees their freedom of association and their right to organize.

The NAO of Mexico issued its report on May 3, 1995. The Report did not make specific reference to allegations and identified Sprint only as the "protagonist." In its conclusions, the NAO stated:

"After studying matters related to U.S. Labor legislation related to Public Submission 9501 NAO MEX, particularly under the rubric of freedom of association and the right of workers to organize, the NAO of Mexico is concerned about the effectiveness of certain measures intended to guarantee these fundamental principles..."

"In view of the above, the NAO of Mexico emphasized in its analysis the possible problems in the effective application of U.S. law when an employer refuses to negotiate collectively with a union elected as the exclusive representative of the workers in the bargaining unit, or where the employer refuses to permit that an election take place. Specifically, the NAO, in the light of the information obtained, was unable to assess with complete certitude the effects on the right of workers when the employer suddenly closes the place of work."

Ministerial Consultation on 9501

On February 13, 1996, the Secretaries of Labor signed an Agreement on Implementation. The Agreement included:

1. The Secretary of Labor of the United States would keep the Secretary of Labor and Social Welfare fully informed of developments in the Sprint case, which was then before the National Labor Relations Board.

2. The Labor Secretariat would be instructed to conduct a study of the effects of sudden plant closings on freedom of association and the right of workers to organize.
3. The U.S. Department of Labor would organize and conduct a public forum in San Francisco on the effects of sudden plant closing on the principles of freedom of association and the right to organize.

4. The outcome of each of the agreed actions should be promptly available to the public.

Concurrent and Subsequent Actions on 9501

LCF was closed on July 14, 1994. The union immediately filed charges with the National Labor Relations Board. A hearing was held before an Administrative Law Judge who issued his report on August 30, 1995. He found Sprint guilty of some 50 unfair labor practices, but he found that the plant closing was for legitimate business reasons and was not a violation of the statute. The case then went to the National Labor Relations Board which issued its decision on December 27, 1996, holding that the closing was motivated by anti-union animus and therefore a violation of the statute. The Company petitioned for review in the Court of Appeals which, on November 25, 1997, reversed the Board and held that Sprint's closing the facility did not violate the statute.

The Secretariat has made and published a study on the effects of plant closing on freedom of association and the right to organize in which it concludes that closures to avoid unionization are more frequent in the U.S. than in Canada or Mexico. The Department of Labor held a public forum in San Francisco on February 27, 1997, on the Sprint case and plant closing, and the proceedings have been published by the Secretariat. In that forum affected workers who were still unemployed explained how the company had intimidated and threatened workers during the organizing campaign and how the closure had affected them.

5. Submission 9601

The submission was filed with the U.S. NAO by Human Rights Watch/Americas, International Labor Rights Fund, and the National Association of Democratic Lawyers concerning a dispute over the representation of employees of the federal government of Mexico at the Ministry of Environment, Natural Resources and Fishing.

The submission alleges that the Federal Conciliation and Arbitration Committee (FCAT) violated the Constitution and federal labor laws of Mexico, including Convention 87 of the ILO, the International Covenants on Civil and Political Rights, the American Convention on Human Rights and the International Covenant of Economic, Social and Cultural Rights. The Mexican NAO stated to the U.S. NAO that the submission was not appropriate for review because Mexico had adequately enforced its laws and NAALC was limited to monitoring effective compliance with, and enforcement of, each Party's labor law.

The problem arose out of the consolidation of the Fishing Ministry with the Ministry of Agriculture and Water Resources. The Single Trade Union of Workers of the Ministry of Fishing (SUTPS) representing approximately 2,300 workers sought to represent all of the employees of the consolidated Ministry of approximately 20,000 workers. This led to a series of decisions by FCAT, which is the governmental agency responsible for administering the law applicable to federal employees.

1. When SUTPS sought to change its name to reflect the name of the consolidated Ministry, FCAT denied this request on the grounds that since the Fishing Ministry had ceased to exist the union no longer existed. This decision was upheld by a federal court, but SUTPS continued to be registered.

2. After SUTPS petitioned to change its name, the Federation of Unions of Workers in the Service of the State (FSTSE), the only legally recognized union federation in the federal sector, organized a new union (SNTSMARNAP) for the employees of the new Ministry. FCAT registered the new union and cancelled SUTPS's registration. This was reversed by the court because it was done without a hearing. FCAT did not officially notify the Ministry of this, which effectively precluded SUTSP from engaging in union representation functions.

3. In response to the court decision, FCAT granted SUTSP only limited recognition to represent the union in legal proceedings before FCAT and the courts. This restricted recognition was held unlawful by the courts.

4. SUTSP appealed FCAT's decision to recognize the new FSTSE union without a hearing, and the court ordered FCAT to cancel the registration.

5. FCAT held an election between the two contending unions, the FSTSE union won with 84 percent of the votes and was registered by FCAT. SUTSP objected that the conduct of the election was unfair, but FCAT rejected these objections because those objections would affect only 1 percent of the ballots.

6. When FCAT granted recognition to the FSTSE union, it cancelled SUTSP's registration. SUTSP appealed. Its appeal was granted and SUTSP continued to be recognized.

These decisions by FCAT raised two central issues in the submission. First, the Federal Law of Workers in Service of the State, Article 68, provides that "each agency have only one union." Article 78 provides, "Unions can join the Federation of Unions of Federal Employees, the only federation recognized by the state." Because FSTSE has been established as the only recognized union, no union could function in the federal sector unless designated by FSTSE. Second, the impartiality of FCAT is questioned. FCAT sits in panels of three, one named by the government, one by FSTSE, and a chairman chosen by the two. This creates a bias in favor of the union designated by FSTSE. In addition, FSTSE is aligned with the PRI, the ruling party in the government, so there may be bias on the part of the government member of the panel.

The NAO Report discussed for the first time the fact that Mexico had ratified a number of international treaties that protect the principle of freedom of association, and stated that although there are conflicting opinions among legal scholars as to the position of international treaties and federal laws in the hierarchy of Mexican law, "the prevailing view" is that "international treaties are superior to federal law, provided that the treaty was ratified in accordance with Mexico's constitutional requirements."

The Report recounted that the ILO Committee on Freedom of Association had considered "precisely the issues raised in Submission 9601" and found allowing only one union per workplace to be a problem. The ILO Committee noted that establishment of the FSTSE as the only recognized union in the federal sector "makes it impossible for public service workers to set up trade union organizations of their choice outside the established trade union sector." The ILO Committee called upon the Government of Mexico to take the necessary measures to ensure that public service workers "may freely establish independent trade unions of their own choosing" and to eliminate as quickly as possible all legal and practical obstacles so that the complainant organization may acquire legal personality and carry out trade union activities provided by Convention No. 87."

The NAO Report further recounted that the ILO Committee of Experts on the Application of Conventions had reported on this problem eight times in the last 15 years. It had pointed out that Articles 68, 71, 72, 73, and 84 of the federal labor laws were not in conformity with Convention 87 and that the Government of Mexico had failed to respond to its requests to bring its law into conformity with Convention 87.

The findings in the NAO Report stated under the heading of Enforcement of Labor Laws:

"Although the FCAT ruled against SUTSP, all four cases were accepted for review by the appellate courts. Three of these appeals were decided in favor of SUTSP. While delays in receiving these favorable outcomes may have caused some harm to SUTPS, delays are inherent in any administrative process that attempts to afford the parties a degree of process..."

"Clearly, the fundamental freedom of association issues raised in the submission and specific provisions of LFTSE have been the subject of ongoing review and interpretation by the ILO. Moreover, recent Supreme Court decisions, together with various legal opinions on the standing of ILO Convention 87 under the Mexican Constitution raise questions not subject to clear interpretation by the NAO. Consequently further consultations could contribute to a better understanding of the legal doctrines at issue."

The NAO Report recommended Ministerial Consultations "for the purpose of examining the relation between and the effect of international treaties, such as ILO Convention 87 and constitutional provisions on freedom of association on the national labor laws of Mexico."

Ministerial Consultations on 9601

The Agreement reached after Ministerial Consultation consisted of the following:

1. Exchange sufficient publicly available information to contribute to a better understanding of the labor legislation of each country that is a subject of this consultation.

2. Each NAO will provide to the other NAO information on labor legislation that is the focus of the exchange, in accordance with Paragraph 1.

3. The NAOs will organize a conference on the relationship between international treaties and constitutional provisions in the United States and Mexico.

4. The NAOs will report the results of the exchange of information and conference to their respective Secretaries of Labor.

The Third Collegiate Labor Court, on June 4, 1977, ruled that portions of the Law of Federal Employees establishing union monopolies violate constitutional freedom of association.

The NAOs organized a conference on the relationships between international treaties and constitutional provisions in the United States and Mexico on December 4, 1997, in Baltimore, Maryland.

On December 17, 1997, the three organizations that filed the original submission filed a request for reconsideration by the NAO. The bases for this request are:

1. The Report failed to address several key components of the labor law enforcement issue, namely, that SUTPS members have been unable to enjoy their freedom of association rights in violation of applicable law. There has been no effective enforcement of the law. The NAO equated access to tribunals with enforcement of the law.

2. The NAO did not analyze the full implications of FSTSE appointees on the FCAT in providing a fair tribunal.
3. New information and developments show that in spite of obtaining registration, SUTSP has been unable to effectively enjoy its right of free association.

This submission was filed on October 11, 1996, with the U.S. NAO by the Communication Workers of America (CWA), the Union of Telephone Workers of Mexico (STRM) and the Federation of Unions in Goods and Services Companies of Mexico (FESEB) concerning efforts to organize the employees of Maxi-Switch.

The submission alleged that the wages at Maxi-Switch are excessively low, $3.00 per day. When the FESEB started to organize, the Company used threats and intimidation to persuade workers to abandon the union, discharged union activists, pressured others to sign resignations, and signed a "protection contract" with a "phantom union."

The submission further alleged that employees who were discharged when they refused to resign or were forced to resign filed complaints with the CAB. These complaints have never been acted on. When the FESEB sought to register, the CAB denied the union recognition on the grounds that the Company already had a collective contract with an unidentified union.

The FESEB appealed the CAB's denial of registration, and the district judge annulled the CAB decision, but the CAB has not made a new decision.

The CAB refused to divulge the name of the union with which the collective contract was signed, but it is known to be affiliated with the CTM.

The submission charges that the Mexican Government has, in these matters, failed to enforce the Constitution, the federal labor laws, and its obligations under Convention 87 of the ILO.

The submission further charges that the Mexican Government has violated Articles 4 and 5 of NAALC to "ensure that tribunals that conduct or review proceedings are impartial and independent" and that its "tribunal proceedings are fair, equitable and transparent." The submission alleges that the CAB's government representative and chairman is a member of the rival union confederation, the CTM, to which the "phantom union" belongs.

The submission contends that, according to legal precedent, the presence of a collective agreement is not grounds for rejecting the registration of another union and that denying registration was the result of the Chairman and the labor representative on the CAB being affiliated to the CTM union which was favored. The submitters presented research reports that such favoritism regularly occurs in other CABs in Mexico.

The submission charges that the dismissal of union activists violates the Constitution, the Mexican Labor Code and Convention 135 of the ILO. The CAB failure to act on these for six to nine months is a violation of the obligation of Article 3 of NAALC to "effectively enforce its labor law through effective government action ... such as initiating in a timely manner, proceedings to seek appropriate sanctions or remedies." The union's request for registration had been denied by the CAB in January, 1995. The union's appeal was granted in March, 1996, but in April 1996 the CAB again denied registration.

On December 10, 1996, the submission was accepted for review by the U.S. NAO "insofar as it pertains to issues of freedom of association and the right to organize, including the failure to ensure that labor tribunals are fair, equitable and transparent, and the failure to effectively enforce labor law."

On April 4, 1997, the CAB released a document stating that it was granting the complainant union registration and regularizing the procedure in the individual dismissal cases seeking reinstatement. The complainant unions informed the NAO that their fundamental objectives were achieved and the complaint no longer existed.

7. Submission 9701

This submission was filed with the U.S. NAO by Human Rights Watch, the International Labor Fund and the National Association of Democratic Lawyers of Mexico concerning gender discrimination through pre-employment pregnancy screening and post-hire dismissal of pregnant women.

The submission alleges that Maquiladora employers regularly require female job applicants to verify that they are not pregnant, and some employers discharge employees who become pregnant. The submission asserts that these are in violation of Mexican law and Mexico is failing to enforce its law in violation of NAALC Article 3(1). It also contends that this is inconsistent with the Preamble of NAALC and the Labor Principles included in Annex 1 of NAALC. It further contends that Mexico is in violation of Convention 111 of the ILO, the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the American Covenant on Human Rights. The Mexican NAO stated that a review of the submission would exceed the intended scope of NAALC in that it questioned Mexican labor law rather than its application or enforcement.

The Report stated that "the review focused on compliance with and effective enforcement of Mexican labor law ... and on the access to the appropriate tribunals or other government bodies by workers who claim they have been discriminated against."

In response to inquiries by the United States NAO, the Mexican NAO stated that there is no explicit prohibition in Mexican law against pre-employment discrimination. Mexican law reaches discrimination only where there is an existing employment relationship. This was confirmed by some legal experts but disputed by the Human Rights Commission of the Federal District.

The Chief Executive of the Department for the Federal District, the President of the Tribunal of Justice, the Council of Judicature for the Federal District and the Attorney General for the Federal District were recommended that the criteria for personnel selection at the institutions they head respect the principle of legal and social equality between men and women in a precise manner and therefore shall not require women not to be pregnant in order to obtain employment, except in cases were the nature of occupation may cause a risk to the pregnant woman's health or that of her fetus.

Post-hire pregnancy discrimination, it is agreed, is prohibited, and CABs have authority to act on claimed violations as unjustified dismissals. Information submitted to the U.S. NAO was that CABs regularly handle such claims and rule favorably for the worker. The submitters maintain that labor inspectors lack authority, support and resources to effectively discharge their responsibilities and that the Office of the Defense of Labor is ineffective, with some attorneys inaccessible and lacking necessary resources. However, labor inspectors make a substantial number of inspections and find that most Maquiladoras are in substantial compliance with the law. Where violations are found, corrective action is taken.

The submission's charge that pre-hire discrimination violated obligations under international treaties ratified by Mexico was disputed. On the disputed question whether treaties were superior to, equal to, or inferior to organic federal laws, the Report concluded, "Most Mexican legal scholars place them on equal footing," (differing from its conclusion in the Report on Submission 9601).

The Report found the interpretation of ILO Convention 111 uncertain. The Convention generally prohibits discrimination on the basis of sex, and the Committee of Experts on Application of Conventions and Recommendations has stated that this applies to distinctions on the basis of pregnancy. In two cases the Committee of Experts has expressed concern about pregnancy testing prior to employment. However, in reporting on both cases it "noted with satisfaction" that the involved government had adopted measures prohibiting such testing. However, the Report states, the Committee of Experts "has yet to specifically address whether pregnancy screening is a prohibited practice under the terms of the Convention." Nor has CEDAW articulated a specific prohibition of such testing. The conclusion was that "the NAO was unable to find any applicable international jurisprudence that specifically defines pregnancy screening to be a prohibited practice under either agreement."

There is dispute as to how extensively pregnancy screening is practiced, but it is of concern for agencies of the Government and women workers. There was evidence that women lacked confidence in the CABs for enforcement of their rights and there was need for women to be more aware of the protection they are afforded by the law and procedures for seeking redress.

The Report concludes that "It would further the objectives of the NAALC to clarify the law and practice in Mexico on pre-employment pregnancy screening and post-hire discrimination on the basis of pregnancy."

The issues for consultation are stated to include:

1. The differing views of the Mexican Government on the legality and extent of pregnancy screening.

2. The extent of relief for post-hire pregnancy discrimination, given the information provided by the submitters, the lack of data on cases, and information from agencies and organizations.

No Ministerial Consultation has yet been held.

8. Submission 9702

This submission was submitted to the U.S. NAO by the Support Committee for Maquiladora Workers (SCMW), the International Labor Rights Fund (ILRF), the National Association of Democratic Lawyers (ANAD) and the Union of Metal, Steel, Iron and Allied Workers (STIMAHCS) of Mexico, concerning the organizational activities and an election at Han Young de Mexico S.A. de C.V.

The submission alleges that the Mexican government has failed to enforce the Constitution, various provisions of the Federal Labor Law, and Conventions 87 and 98 of the ILO. It alleges a pattern by the Company of dismissals, intimidation and physical beating of union activists, and a variety of measures to threaten employees who joined the independent union. The Company sought to install a union affiliated with the PRI. The CAB has failed to decide cases filed by dismissed employees. The CAB conducted an election between the two unions in October 1997 in which CAB and other government officials used various means to prevent the independent union from winning, including allowing workers who were not employees to vote, banning observers from being able to determine voters' qualifications or to observe counting of the ballots, and failing to announce the results of the election. Both unions filed objections.

In December 1997, both unions met with the Baja county government officials and agreed to a binding administrative election. STIMAHCS won the election by four votes. STIMAHCS notified the U.S. NAO that its complaint had been resolved and that its complaint was withdrawn. However, other submissions did not consider their complaints resolved and the U.S. NAO continued its review.

The United States NAO accepted the submission for review and a hearing was held February 18, 1998, in San Diego.

9. Submission 9703

This submission was filed with the U.S. NAO by seven unions in United States and Canada, supported by 24 Mexican unions and public interest organizations from the United States and Mexico.

The submission alleges that employees at the Echlin, Inc. plant at Ciudad de los Reyes who were active in organizing an independent union in opposition to the incumbent CTM union have been subject to intimidation, surveillance, physical assaults, increased work loads and dismissals. The day before a representation election, Judicial Police delivered arms to the plant, and on the day of the election 170 men armed with sticks, chains, bars and thin copper rods entered the plant, intimidating and beating employees and preventing employees who supported the independent unions from voting. Representatives of the opposing CTM union crowded the voting room where workers were required to state out loud how they were voting. CTM representatives told employees that if they did not vote for the CTM they would not come out of the room alive, and women were threatened with rape. There were various other irregularities in the voting.

The CAB refused to suspend the election and certified the results without referring to these measures, and CTM remains the certified representative.

Many of the employees who were discharged refused to accept severance pay and filed cases with the CAB requesting reinstatement. Ten were ordered reinstated, but the Company barred them from the plant. They were told that CTM had insisted that, because they had voted for the independent union, they should not be allowed to work. As a result they were again discharged. Other employees had similar experiences.

The submission charges that the actions of the Company and CTM denied them their rights of free association in violation of the Constitution, federal labor laws, and ratified conventions of the ILO. It charges specifically that Mexico has failed to enforce and comply with ILO Convention 87 and the Mexican Constitution by: (1) holding and certifying an election in an atmosphere of intimidation; (2) requiring a voice vote in the atmosphere; (3) allowing the balloting process to be manipulated; (4) allowing the employer to affect the outcome of the election by the use of discriminatory discharges; and (5) failing to reinstate those discharged prior to the election.

In addition, the submission charged that the CAB had not actually enforced its order of reinstatement of employees discharged for union activities, but had left those barred from returning or those gain discharged without a remedy.

The submission further charges that Mexico has failed to provide impartial tribunals and also that Mexico has failed to enforce its health and safety laws.

A hearing was held on March 23, 1998, in Washington, but no Report has been issued so we are unable to make any evaluation of the submission.

C. General Observations on Submissions

1. The U.S. NAO Reports of Review regularly state the objective of review to be:

   "to gather information to assist the NAO to better understand and publicly report on the government of Mexico's promotion of compliance with, and effective enforcement of its labor law through appropriate government action as set out in Article 3 of the NAALC."

   The submission process has made major contributions toward this objective. The hearings and Public Reports have provided factual examples of the substantive rules and procedures and their practical application. The inquiries and studies of labor law and procedures made by the NAO in investigating submissions has given better understanding of the general principles, structures and procedures of labor law of the country involved. The studies agreed to in Ministerial Consultations, such as the study of the law relating to plant closings, have provided a valuable source for comparison of how the law deals with this problem in the three countries. And the seminars and conferences dealing with legal aspects have provided a better public understanding.

   Two limitations should be noted. First, the investigations and Reports seem not to provide comprehensive and penetrating analysis of the specific legal problems involved in the particular submission, but are limited to stating different points of view. This is true of crucial legal problems such as union monopoly, coerced resignations and plant closings. The analysis of pregnancy screening in the Report on Submission 9701 is an exception.

   Second, because all but one of the submissions have been filed with the U.S. NAO and concerned situations in Mexico, the U.S. NAO has learned much about Mexican law, but there has not been equivalent exposure of the Mexican and Canadian NAOs to labor law and practice in the United States, nor of the Mexican and U.S. NAOs to Canadian labor law and practice.

2. The submission process generates an ambiguity with false expectations as to its purpose. The process is structured as an inquiry into a specific situation in which it is alleged that a named employer has violated specific labor laws, individual employees have suffered violation of their rights, and governmental agencies have failed to enforce the law. The process typically consists of a complaint, an inquiry, a public hearing (at least as far as the U.S. practice is concerned), and a Public Report with findings. Though this is declared not to be an adversarial hearing, the process creates an expectation by those making the submission that claimed violations will be adjudged and that the claimed wrongs will be righted.

   This perception of the process is reinforced by the NAO's apparent position that if the specific violations alleged are settled or unproven then the problem no longer exists. In Submissions 940001 and 940002, the Report seemed to treat the signing of coerced resignations as removing those dismissed from the case, and there was no recommendation for Ministerial Consultation. In Submission 9602, the Report did not recommend Ministerial Consultation on the appearance of lack of impartiality of FCAT because the union ultimately gained relief in court and the final outcome was not affected by the composition of FCAT.

   The U.S. NAO states that the focus of the submission process is to "review and report on whether Mexico is enforcing its domestic labor laws." The hearing, however, is described as a "fact-gathering tool" and not "fact-finding about the company or its practices." The discontinuity of the reasoning is puzzling. Inquiry into whether the labor laws are being enforced requires an inquiry and fact-finding into whether there has been a specific violation of law and whether that violation has been legally remedied. The procedure must, of necessity, take on the appearance of an adjudicative character even though the NAO has no remedial power. But the NAO describes its function to be "to better understand and publicly report" on Mexican labor law and practice.

   The expectations created by this procedure have contributed to a measure of disillusionment, particularly in the United States, with the process on the part of some unions, groups, and individuals, exemplified by the union's withdrawal of Submission 960004. Having engaged in an inquiry into illegal practice of an employer and into the failure of the law to remedy, the NAO provides the employees no remedy.

3. The ultimate purpose of the submission process is to identify and describe systemic legal practices and outcomes. It does this by inquiring into specific cases. Where the finding is that legally declared rights are not protected because of systemic failure to enforce the law, the primary object is to obtain correction of those systemic defects. The recommendations of the NAO and the Ministerial Consultations should be directed to that end. However, there is no compelling reason for treating the fate of those individuals and unions who have provided the motivating examples, often at their personal risk and expense, as of no concern to the NAO and the ministers. There could, at least, be recommendations that correction of the systemic defects begin with them. This would reduce the disillusioning ambiguity.

4. There is another ambiguity, also rooted in the provisions of the NAALC. Article I states the objectives of the Agreement to (a) "improve working conditions and living standards in each Party's territory" and (b) "promote to the maximum extent possible the Labor Principles set out in Annex 1." Article 3, however, states the obligations of the Parties as being to "promote compliance with and effectively enforce its labor law."

   In accepting submissions for review, the U.S. NAO frequently states that "a review would further the objectives of the NAALC as set out in Article 1," including in those objectives "promoting to the extent possible, the Labor Principles set out in Annex 1." At the same time, the Report states that "the review will be focused on compliance with, and effective enforcement ... of labor laws that protect" employees. The U.S. NAO repeatedly says that the focus of the NAO's review and public report is on whether Mexico is enforcing its domestic labor laws. The Reports are, in fact, generally so limited that there is no focus on whether the domestic labor laws of Mexico or the United States might better promote the Labor Principles of Annex 1, which are largely ignored.

5. The recommendations of Ministerial Consultations and the consultation agreements have focused on study, discussion and education, not corrective action. In Submission 940003, the issues involved were dismissal for union activities, employer interference in union elections, police violence in a work stoppage, and denial of union registration. The NAO recommendation was limited to "further address the operation of the union registration process." The Ministerial Consultation Agreement was limited to a joint work program of public education, a study of independent experts on the Mexican law dealing with registration, and a meeting between officials of the Mexican Labor Department and officials of the union which had been denied registration.

   In Submission 9501, the issue was sudden plant removal immediately prior to a representation election. The Ministerial Consultation Agreement was that the U.S. Secretary of Labor keep the Mexican Secretary informed of developments, the Secretariat make a trinational study of sudden plant closings, and that a public forum be held in San Francisco.

   In Submission 9601, the issues were denial of union registration by application of the monopoly union provision, and the bias of FCAT. The NAO recommendation was to examine the relationship between treaties and the Mexican Constitution and labor laws. The Ministerial Consultation Agreement was that the NAOs of the United States and Mexico exchange information, provide each other with information on relevant labor legislation, and organize a conference on the relationship between treaties and constitutional provisions in the two countries.

   In Submission 9701, involving pregnancy discrimination, the NAO recommendation for Ministerial Consultation was to ascertain the extent of protection against pregnancy based on discrimination afforded by Mexican labor laws and their effective enforcement. The Ministerial Consultation was agreed to, but we have no information on the results.

   There has been no recommendation or consultation agreement that a Secretary or Minister would undertake any formal or informal action to remedy any violations of law, correct any actions by agencies of government, alter any procedures, or make any effort to modify any laws. There has been no recommendation or consultation agreement to promote the Labor Principles set out in Annex 1 in accordance with Article 1 and 2 of the NAALC.

6. The recommendations and consultation agreements have not dealt with repeated allegations of delay, lack of impartiality and lack of fair and transparent procedures. In a number of submissions employees waived their legal rights to obtain severance pay because of delay in the CABs, and other nominal remedies were made useless by unexplained delays. Possible violations of Article 5 were not even considered. The U.S. NAO, in its Report on Submission 9601, stated that the composition of FCAT "creates the appearance of lack of impartiality," but no corrective action was recommended.

   According to Article 5 of the NAALC, where procedural matters are involved, the NAO is not limited to inquiring whether there has been compliance with domestic law. Article 5 establishes procedural guarantees as explicit obligations with which domestic law must comply. This distinctive character of procedural guarantees under Article 5 has never been explicitly recognized in the NAO Reports.

7. In the first cases, the U.S. NAO reports failed to deal with the relevance of treaties in Mexican law. In Submissions 940002 and 940003, violation of Convention 87 of the ILO protecting the right of freedom of association was expressly alleged in the submissions. There were then more than 10 years of ILO precedents concerning union monopoly provisions for federal employees in Mexican federal law from which one might conclude that the refusal of the CAB to register the independent union was a violation of Convention 87. Also, the coerced resignations in 940001, 940002, and 940003 might have been found in violation of Convention 87. There was no discussion in any of these Reports as to whether any of this conduct violated the ILO Convention.

   In subsequent cases, Submissions 9601 and 9701, the relevance of treaties, and particularly ILO Convention 87 and Convention 111, were discussed. NAO Public Report on Submission 9601 explicitly recognized that the ILO had consistently found that establishing or supporting trade union monopolies was incompatible with Convention 87 and described how Mexico had, for 15 years, failed to comply with ILO's Committee of Experts decisions that Mexico was not in compliance. However, because of some uncertainty as to the effect of treaties on Mexican domestic law, it did not find a failure to comply with Convention 87.

   In the Public Report on Submission 9701, the Report acknowledged Convention 111's broad protection against gender discrimination and the Committee of Experts' concern about pre-employment pregnancy tests. However, because no decision of the Committee of Experts had explicitly held that pre-employment testing violated Convention 111, the Report refused to find Mexican law permitting pre-employment testing to be a violation of the ILO Convention or any other treaty.

8. There are unanswered questions as to why the submission process has not been used more. The cases were originally numbered to provide for cases annually in the thousands (e.g., 940001). However, there have been only 10 submissions accepted for review in four years. All but one has concerned situations in Mexico, none in Canada. It is hard to believe that this represents even a small portion of potential claims in any of the three countries.

   One explanation given is that the availability of the process is not widely known, but clearly unions and public interest organizations know of the procedure and have used it. Another explanation is that it is viewed as a futile procedure because it provides no remedy for those wronged. Nor has it resulted in any significant change in the law, its enforcement, or the tribunals charged with enforcement. A third explanation is that unions that opposed NAFTA and the NAALC do not want to legitimize it by making use of the procedure.

9. The procedures of Articles 23 to 26 providing for Evaluation Committees of Experts and potential referral to an Arbitral Panel have not been used. Under Section 2 of Article 23, this procedure is available to analyze "patterns of practice by each Party in the enforcement of occupational safety and health or other technical labor standards." "Technical labor standards" is defined as including all labor laws other than those relating to freedom of association, the right to organize, the right to bargain collectively and the right to strike. However, this procedure can be invoked only if a matter has not been resolved by Ministerial Consultation. Only one submission, 9701 charging sex discrimination with pre-employment screening, has been potentially subject to the ECE procedure, and there has not yet been Ministerial Consultation. Even in the other submissions there has been no failure to agree at the ministerial level.

   This only sharpens the question of why no other submissions have been made on "technical labor standards," particularly on occupational safety and health, child labor or minimum wage standards. There is substantial evidence that there are systemic failures to enforce these laws in both the United States and Mexico, and these were among the problems most strongly argued by unions in the United States in demanding a labor side agreement. Further, the ECE procedure in these cases can lead ultimately to arbitration, an action plan and monetary assessment. In these cases there is an enforcement mechanism.

   Charges of these violations have been included in some of the submissions, but apparently not pressed by the charging parties and shunted aside by the NAO. Even though private parties fail to file submissions on these matters, the NAO could make studies and any Secretary or Minister of Labor could request consultation. No secretarial or ministerial steps have been taken to set this procedure in motion, even though these problems are believed to be serious in both Mexico and the USA, and each Secretary of Labor of these two countries would seem to want stronger enforcement in both his own and the other country.

   It might be thought that the ECE procedure would be ineffective in accomplishing change in these areas because the failure to enforce is so endemic in both countries and cannot be remedied without significant changes in government structures and increased budgetary resources. But public disclosure and explanation of the common problem could be the first step to useful change.

10. Since the initiation of the submission processes, there have been relevant changes in Mexican law, although it is difficult to determine what role the process has played in the change. Subsequent to the Report on Submissions 940002 and 940003, which involved refusal to register more than one union in a workplace, the Supreme Court of Mexico, in two unanimous decisions, found two state statutes prohibiting more than one union in a workplace to be unconstitutional.

    This decision probably led the CAB in the Maxi-Switch case (Submission 9602) to register the union and agree to normalize the procedure in dismissal cases shortly before the scheduled hearing. This led the union to withdraw the complaint and cancel the hearing.

11. The submission process appears to be becoming more focused, partly because those making the submissions have come to better understand it. The most recent complaints put less emphasis on the fact that a particular employer has violated the law and has directed its allegations to the failure of the CAB or other government officials to enforce the law, and also on the apparent lack of impartiality of the CABs.

    At the same time the NAO Reports have begun to recognize the potential relevance of treaties such as ILO Convention 87, ratified by Mexico, which have substantive provisions protecting the rights of workers.

    The most recent submission, 9703, was filed in the name of seven unions and other organizations and supported by 24 other unions and organizations in Canada, United States and Mexico, including the union which withdrew Submission 940004 with acid criticism of the process. This may be a harbinger of increased confidence in the process and a belief that it can be used to further the goals of the NAALC.