Appendix F - United States Department of Labor, Bureau of International Labor Affairs Public Forum
UNITED STATES DEPARTMENT OF LABOR
BUREAU OF INTERNATIONAL LABOR AFFAIRS
PUBLIC FORUM
Tuesday, February 27, 1996
9:30 a.m.
Moderator: Joaquin F. Otero
Deputy Under Secretary of Labor
for International Labor Affairs
U.S. Department of Labor
- - -
Ana Hotel
50 Third Street
San Francisco, California
AGENDA
PAGE
Opening Remarks
Joaquin F. Otero 6
Deputy Under Secretary of Labor
for International Labor Affairs
U.S. Department of Labor
Luis Miguel Diaz 12
General Coordinator for International Affairs
Secretariat of Labor and Social Welfare, Mexico
Warren Edmondson 17
Director General, Federal Mediation
and Conciliation Service
Human Resources Development, Canada
Oral Presentations
Francisco Hernandez Juarez 26
President
Telephone Workers Union of the Republic of Mexico
Morton Bahr 31
President
Communications Workers of America (CWA), AFL-CIO
Robert L. Corrada 40
Assistant Professor of Law
University of Denver (speaking on behalf of Sprint)
Dora Vogel 50
Former employee of La Conexion Familiar (Sprint)
Federico Anaya 56
President, Law Firm of Anaya Valdepena
Management Attorneys and Consultants
Counsel to Confederation of Chambers of
commerce and Industry of Mexico
Maria Blanco 62
Associate Director
Women's Employment Rights Clinic
Golden Gate University, School of law
PAGE
Liliette Jiron 71Former employee of La Conexion Familiar (Sprint)
Sergio Tapia 76
Consultants Associates (Management Consultant)
Monterrey, Mexico
John Zucker 84
Legislative aide to the Honorable Tom Lantos
U.S. House of Representatives
Fernanda Recio 91
Former employee of La Conexion Familiar (Sprint)
Veronika Altmeyer 96
Managing Executive, Telecommunications
Deutsche Postgewerkschaft (German Post and
Telephone Workers)
Jose Luis Mendoza 104
Legal Counsel
Telephone Workers Union
of the Republic of Mexico
Lawrence Bertuzzi 110
Partner, Miller & Thompson
Philip C. Bowyer 123
General Secretary
Postal, Telephone and Telegraph International
Marie Malliett 134
President, Local 9410
Communications Workers of America
Frank Martin del Campo 141
President, San Francisco Chapter
Labor Council for Latin American Advancement
Dick Martin 146
Secretary-Treasurer
Canadian Labor Congress
Janice Wood 154
Vice President, District 9
Communications Workers of America, CWA, AFL-CIO
PAGE
Kate Brofenbrenner 161
Director of Labor Education Research
New York School of Industrial Labor Relations
Cornell University
Closing
PROCEEDINGS
9:40 a.m.
MR. ZEE: Before we have the formal start of today's program, I would like to make some comments on some procedural details which I hope will make the meeting go by a little more smoothly.
First, you will notice that there is interpretation equipment at all the tables. Channel 4 is English and Channel 3 is Spanish. Of course, if you don't understand English, you don't know that Channel 3 is Spanish, but Channel 4 is English, Channel 3 is Spanish.
There are a variety of materials at the table in the back as you come in. I think most people have taken those materials. They are for you and please feel free to take as many as you want.
If you need something, I will be around throughout the course of the meeting. Please let me know and I will help get those materials for you.
There is a section on the side here reserved for the media and I ask only that the reporters not do any interviews in this room during the course of the meeting. There will be plenty of opportunity during the break at lunchtime. And also if you have an interview scheduled with somebody during the course of this meeting, please just do it outside the room. And there's also a mult box set up if any reporters require the mult box and that's at the back of the room also.
All the speakers, by the way, will come up to this podium, there will be no speakers or questions or comments from the floor, so we do ask that the speakers sit at these first two tables up here to minimize the time traveling back and forth and to help us expedite today's program.
I believe that's all I have. If you have any questions, as I said, I will be around. And with that, I am going to turn the meeting over to Deputy Under Secretary for International Affairs Jack Otero and he will chair today's program.
Thank you.
MR. OTERO: Thank you, Bob.
Good morning ladies and gentlemen.
Muy buenos dias, senoras y senores. Bienvenidos a todos.
My task today is to chair this public forum on behalf of Secretary of Labor Robert Reich. I would like first of all to identify those at the head table with me for your benefit.
First, to my extreme right is Mr. Warren Edmondson, who represents the Human Resources Department in Canada and he is the leader of the tripartite Canadian delegation which involves government, unions and management representatives.
To his left is the representative of the Mexican Government, Dr. Luis Miguel Dias, from the Ministry of Labor and Social Welfare of Mexico. He, too, is leading a tripartite delegation composed of union, management and government.
To my immediate right is Mrs. Irasema Garza, who is the Secretary of the United States National Administrative Office, which is the first line agency set up at each government's level for the purpose of implementing the North American Agreement on Labor Cooperation.
And to my left is Mr. Bart Widom, who is from the Solicitor's Office of the Department of Labor. He is my legal advisor and both he and Mrs. Garza will be assisting me should there be any question for technical or legal questions which I may be not able to answer on my own.
I would like to thank all of you today for being here promptly and at the outset I should also say that I am delighted to see such a large number of people present as well as to see so many faces in the audience which are familiar to me.
We also have headsets for simultaneous interpretation. I ask each and every one of you to please not inadvertently take them out of the room, leave them in your place when you go out to lunch and when the meeting is concluded today because they do not belong to the Department of Labor, they have been rented for the purpose of this meeting.
The public forum that we are conducting today is being conducted pursuant to the North American Agreement on Labor Cooperation which is in the vernacular known as the labor side agreement to the NAFTA trade agreement.
As you know, the NAFTA agreement itself is supplemented by an agreement on the protection for the environment and an agreement on the protection of workers' rights. But this forum is specifically conducted today as a result of a ministerial consultations implementation agreement on Case 95-01. This agreement was reached by Secretary of Labor Robert Reich and Mexican Secretary of Labor Javier Bonilla on December 15, 1995. And I would like to say in passing that the agreement was endorsed and signed by the government of Canada through the Labor Minister, Luzian Robilliar.
This public forum presents an opportunity for public debate on the freedom of association and the right to organize, principles on which the three NAFTA signatory countries place the highest of importance.
Ministerial consultations were held on Submission 95-01 under Article 22 of the Labor Supplemental Agreement following the Mexican National Administrative Office issuance of a public report on May 31, 1995. Submission 95-01 was filed with the Mexican NAO on February 9, 1995 by the Telephone Workers Union of Mexico. The submission alleged that the Sprint Corporation closed its facility known as La Conexion Familiar, a Spanish-language telemarketing subsidiary in San Francisco, in July of 1994 just one week prior to a scheduled union representation election, thereby dismissing over 200 employees and denying them the right to freedom of association and the right to organize.
Mexico's public report on this submission requested ministerial consultations to address the effect of sudden closure of a workplace on the workers' freedom of association and the right to organize in the United States of America.
The agreement negotiated by the United States and Mexico during these ministerial consultations recognizes the importance of this issue and provides several action items, one of which is, and I quote, "that within 120 days of the agreement the United States Department of Labor will organize and conduct a public forum in San Francisco, California to allow interested parties an opportunity convey to the public their concerns on the effect of the sudden closure of a plant on the principle of the freedom of association and the right of workers to organize."
That, ladies and gentlemen, is why we are all here today. Notice of today's forum was published in the Federal Register on January 25, 1996. In that notice, advance registration procedures for all presentations were outlined with the intent of ensuring an orderly process and allowing sufficient opportunity for all interested parties to participate within the time allowed each speaker.
This is a one-day event, scheduled to end today no later than six p.m. We will have a break for lunch at approximately 12:30 and we will return to work at two p.m.
The published guidelines allow me as chairman of this event today to allow each speaker no more than 10 minutes and I ask each speaker to be mindful of this requirement so as not to encroach on someone else's right to speak.
Only those people who have registered in advance with our office will be permitted to speak today. We have compiled a list with the names of persons who wish to speak and who registered timely with the United States Department of Labor. That list containing the names of persons speaking today is available at the table located at the rear of this room.
If you have registered to speak, please locate your name on the list because to the extent possible I will try to follow the order in that list and will call your name accordingly.
I request again your cooperation and assistance in conducting an orderly proceeding so that all those who have registered can make an oral presentation and have the opportunity to do so without any encumbrances. To this end, I request that all oral presentations be limited to the issue before us today, Submission 95-01, and the general objective of the forum is to analyze the effect of the sudden plant closures in the United States have on workers' rights to organize and on the freedom of association.
After each presentation, I will have the discretion to question the presenters if appropriate or necessary. There will be no questions from the audience to the presenters. At any time during the forum I will have the leeway of calling a recess if I deem it appropriate.
In addition to the recording of today's proceedings, written statements which have been submitted to the United States National Administrative Office will be included in the public record of this forum. The complete record of these proceedings will be available to the public upon request.
I would like to thank all of you in advance for your cooperation in ensuring the orderly process of these proceedings and I would like also to announce to the presenters that it is their choice to address this audience either in English or in Spanish as we have simultaneous interpretation provided for this event.
Having said that, it is my pleasure at this point, first of all, to recognize the leader of the Mexican delegation and invite him to make a few remarks, Dr. Luis Miguel Diaz from Mexico.
DR. DIAZ: First of all, I would like to thank the Department of Labor for organizing this event and I would like to express my appreciation to the local authorities for having us here.
(THROUGH TRANSLATOR)
My presentation will be a short one and it will focus on three points. They are, number one, a new way of focusing on the worker; number two, the North American Agreement on Labor Cooperation as a venue for cooperation; and, third, I would like to highlight the situation of labor in the framework of labor relations between the United States, Mexico and Canada.
Regarding the first point, in recent years the subject of labor and labor conditions as opposed to the original approach taken has been focused in a more broad manner. Workers are approached as human beings and working conditions now take into account their economic situation, productivity of companies and the well being of nations. On the other hand, the worker is considered in the light of his environment and work environment. This theory focusing on the worker as an economic being and as a generator of wealth and environment is relatively new.
The topic is clearly identified as one of the typical topics in the globalization we are experiencing and has been dealt with by the ILO, the WTO, the Organization for Economic Development, OECD, and by the United States, Canada and Mexico within the Organization of American States. However, within this debate the North American Agreement on Labor Cooperation seems to have taken the fore since it is an agreement which along with NAFTA and along with the environment cooperation agreement is an international agreement binding for the three countries.
The preamble of the NAFTA agreement says that one of its objectives is the well being of workers. The preamble of the North American Agreement on Labor Cooperation in several ways insists on this purpose. And, finally, article first of the cooperation agreement refers to the objective of raising the standard of living of workers within an international context, within a context of creation of jobs and the expansion of workers' rights.
Now I'll turn to the second point and with your permission I would like to highlight five specific aspects of the cooperation agreement which brings us here.
The first aspect is that the agreement is based on a tenet which is a respect for labor legislation in each of our three countries. Article 2 says that all mechanisms set forth are based on this principle by virtue of which in each country the corresponding labor authorities are the only ones acting in the matter. This agreement does not aim to and, as Article 42nd would say, this agreement cannot be interpreted as substituting authorities from one country to the other.
The second point has to do with one of the objectives of Article 1 which says that the countries undertake to find transparency in the implementation of labor laws. The three countries want to discuss all matters openly and we want all elements of society to participate in this debate and this is why at this forum we are showing that we are taking seriously this obligation.
The other point has to do with the establishment of national administrative offices. Dr. Otero referred to this. And this means that in order to comply with the agreement the three countries established three offices which aim to serve as points of contact among themselves or with local and state organizations in the three countries and then to establish contact with a labor secretariat created by three countries. It is an institution created by the three countries with equal composition from Canada, Mexico and the United States. It is based in Dallas, Texas.
The other point I wanted to highlight is that the North American Agreement on Labor Cooperation, breaking with an internationalist tradition, does not set forth new rights nor new obligations for the parties in a substantive way. The basic concern of the three countries was to seek ways to effectively implement our laws which result from our traditions, our idiosyncracies and our aspirations.
So the reason we are here, the specific reason we are here is to discuss the principle of freedom of association and organization which is contemplated in our national laws and which we have specified as common principles. This is not a new right. It is not a new right but we would like for this right to be more effective.
And, finally, on the North American Agreement on Labor Cooperation, I wanted to say and underscore that this is an international instrument and if we are to analyze it in keeping with international law, it is a perfect law. It is a perfect law because the document itself sets forth a series of requirements so that sanctions may be applied and penalties maybe applied. It is not merely a declaration of principles of good will, of political will, it is a legal instrument which is binding and so non-compliance can be corrected through penalties.
The last point I wanted to make was that the area of labor is something which the United States and Mexico have focused on and have reached an understanding to address problems. It is a way to detect possible irregularities and problems, to analyze them and to expose them to the public so that our authorities can be more effective.
A second point that I wanted to underscore is that the composition of this forum breaking with the traditional patter is not just a forum of government entities. No. We have tripartite delegations with us representing different sectors of our societies, so the representation of what we are, what we want to be, is very broad to the extent that we are represented here in a tripartite way, and I would even say four parties because we have invited sectors of our society which are not representative of governments or companies or workers, they represent society at large.
And, finally, I wanted to end by saying that through me the Secretary of Labor of Mexico, Secretary Bonilla, believes that this forum is a demonstration of the fact that there is communication to address problems, there is political will present and we are expecting concrete results.
Thank you very much.
MR. OTERO: Thank you, Dr. Diaz.
I now would like to introduce Mr. Warren Edmondson, Director General of the Federal Mediation and Conciliation Services, Human Resources Development, Canada, representing the government of Canada.
MR. EDMONDSON: Thanks very much, Jack. And it's always a pleasure when traveling from Canada to visit our neighbors in the south not only to renew acquaintances but also to escape some of the colder climates that we become exposed to at this time of year.
As a partner to this North American Agreement on Labor Cooperation, we're certainly pleased to be here to participate in this public forum dealing with a very important subject, the subject of freedom of association and rights of workers to organize. These issues, of course, and this process, the process for the resolution of complaints under the North American Agreement are of considerable importance to us in Canada, not only to the government of Canada and to the provincial governments but also to our trade unions and our employers, so we look forward to today's proceedings.
We certainly hope that our participation here in this forum will further contribute to improving the dialogue that exists between business, labor and government in our three countries and will further assist us in our efforts in achieving the objectives of the North American Agreement.
Accompanying me today from back east, northeast, are Mr. Dick Martin from the Canadian Labor Congress, which is the largest Canadian central labor organization in Canada, Dick is seated over here at the left, and Mr. Larry Bertuzzi, a practicing labor lawyer from Toronto who has had considerable experience in representing companies in many jurisdictions in Canada and also in the United States. Both of them are experienced labor relations practitioners and I understand that they have been scheduled to speak later on today on the subjects at hand and I look forward to hearing their views.
I can certainly assure you from my experience in dealing with them that neither one of them is shy and if they happen to agree or disagree with anything that I happen to say today that I'm sure they will do so and will certainly give you their perspective on the Canadian experience in dealing with labor law.
Those of you who are familiar with Canadian labor law know that the constitutional jurisdiction for labor law in our country is divided between the federal government and our provincial governments. Each jurisdiction has its own labor laws, protecting workers' health and safety, basic employment standards, equity laws and laws providing, of course, the right to organize unions and laws governing the process of collective bargaining.
Although there may be some differences, and some of them significant, between these respective laws in our country and also in the way in which they are administered, fundamentally they are all based on the U.S. Wagner Act model. And those of you, of course, in this room who are familiar with labor law will know the model well.
They all recognize in the statute, in the respective statutes, the fundamental right of workers to organize and become members of trade unions of their choice, whether they be local unions, national unions or international unions. This, of course, is consistent with the basic rights and freedoms of association found in our Canadian Charter of Rights and Freedoms as well as in Convention 87 of the International Labor Organization which has been ratified by Canada.
Our Federal Minister of Labor, Mr. Galiano, who asked me to bring his greetings to this group, is the minister responsible for the Federal Canada Labor Code. Part 1 of that code is the part that establishes a framework for collective bargaining for federally regulated industries and these industries include industries such as airlines, telecommunications, railroads, longshoring, grain handling and many of the major infrastructure industries in Canada. Although I think about 10 percent of the workforce is governed by the federal labor law, the law, as I said, applies to a number of significant industries.
This part of the code was recently reviewed by an independent task force which submitted its report to the minister on January 31st of this year. The report contains a number of important recommendations and underscores once again the value of our system of collective bargaining as an effective instrument in Canada of both social and economic policy, which is a particularly important statement, I think, as we move into the 21st century.
To quote from the report of the task force chaired by a Mr. Andrew Simms who was the former chair of the Alberta, one of our provinces, labor boards, he states, "Canada must continue to facilitate means by which individuals can express themselves through democratic intermediary groups. Free collective bargaining is an important example."
He goes on to add, "It is not only the absence of rights and freedoms that can lead to the growth of disorder, but also and perhaps more importantly the sense of injustice that results from the inability to secure these rights and freedoms."
It's worth noting that during that process of the task force process that with the assistance of government key labor and management representatives in the industries affected by this legislation met jointly to discuss a number of the issues included in the terms of reference of the task force. The fact that they were able to reach consensus on a significant number of points I believe is an indication of their mutual respect, their ability to work together and as well an indication of their faith in the system of collective bargaining and their mutual interest in designing a system that works for them. That's not all to say that there is peace and harmony between labor and management in every situation in Canada, but I think it's an important indication of their ability to work together.
I should point out that the percentage of unionized workers in Canada remains relatively constant at approximately 37 percent of our workforce, despite the significant impact of changes in government policies such as deregulation, privatization, and the pressures of worldwide competition on Canadian companies and workers in recent years.
Wage increases in Canada remain relatively low at an average of about 1.4 percent while inflation is running at 2.1 in an environment of, again, relatively high unemployment within our country of 9.6 percent.
Discussions at collective bargaining tables like here in the United States have generally focused on the need for concessions, as many companies attempt to remain competitive or to increase profits.
Companies have attempted to reduce labor costs by seeking lower wages, seeking reorganized and more flexible workforces, and attempting to increase productivity by introducing new technology.
Governments also who are faced with large debts and deficits are finding it necessary to adopt some of the strategies of the private sector in their efforts to balance their budgets.
And yet the number of work stoppages in Canada, perhaps understandably, are at an all-time low. Last year, 982,000 person days were lost due to work stoppages, compared to 3.5 million days in 1990.
However, in this difficult environment, organized labor in Canada has managed to hold its own. As I said, it remains at about 35 percent, 37 percent.
Canada's laws, and in particular its labor laws, and the efficiency of its arm's length labor boards which are responsible for determination of bargaining unit structures, for the investigation of unfair labor practice complaints, for the certification of trade unions and their respective jurisdictions, I believe may be in a large part accountable for the ability of trade unions in Canada to organize and maintain their membership in this complex environment.
For example, when we examine the experience of labor boards in our three largest jurisdictions, the provinces of Ontario, Quebec and British Columbia, the statistics are revealing.
In Ontario, in 1993-'94, the numbers indicate that there were 11,066 applications for union certification filed with the Ontario Labor Relations Board, of which 829 were granted, 102 were dismissed and 204 were withdrawn. Most importantly, the median time taken by the board to grant certification was 22 calendar days. During that same period, there were only 110 applications for decertification, 53 of which were granted and 26 were dismissed.
In the province of Quebec for the year '94-'95, relatively similar numbers: 854 applications with 555 granted, 87 dismissed.
Again, similar in the province of British Columbia. In the province of British Columbia, the average time taken to grant an application is 27 days.
I will confess that our federal labor board, those of you who want to take the time to read the report of the task force, will note that it is not quite as efficient. I'm sure that will probably improve as a result of the recommendations that Mr. Simms has made.
While certainly Canada's system of industrial relations is far from perfect, and we've seen the pendulum swing in various provinces on various occasions, I think both labor and management would not find too much argument with the fact that in general our labor laws are being enforced. Not only are they being enforced, but I think they might also agree that they are being enforced fairly, effectively and efficiently.
In a highly competitive global marketplace where the rate of technological change is accelerating at a breathtaking pace, there is much speculation about the future of work. We find apparently competing interests between the quest for corporate survival and profitability on one hand and the pursuit of meaningful work and improved standards of living for workers and the protection of worker rights on the part of trade unions on the other.
These competing interests are not irreconcilable, but rather need to be balanced, not only through a fair and effectively administered legislative framework but also through changing attitudes, I believe, on the part of labor and management in our countries, through cooperation, through good faith, mutual trust, which unfortunately we can't legislate.
While many companies and unions in Canada take their traditional adversarial stances and appear to want to do battle at almost every occasion, there are currently many Canadian success stories in industries such as telecommunications, steel, manufacturing and others where organized labor and management are working together to find innovative and creative ways to advance their mutual interests.
They have recognized the competitive advantage and the benefit to both social partners to be gained by tapping the resources of a well trained, well motivated, empowered and represented workforce.
I believe that effective labor laws efficiently administered will allow us to move to the next dimension and perhaps change the traditional paradigm and enable labor and management as we move into the 21st century to work more effectively together to the mutual benefit of all three countries and workers in Canada, the U.S. and Mexico.
In closing, let me simply say that we are here to listen. We are here to learn. And I look forward to the day's proceedings and hearing the views of the various speakers.
Thank you very much.
MR. OTERO: Thank you very much, Mr. Edmondson.
And now that we have completed the introductory statements by the three countries signatory to the North American Agreement on Labor Cooperation, we will move on with the forum itself.
I would like to ask the presenters to please come to the podium to make their presentations. And, again, I ask all of the presenters to be mindful of the time allotted.
The first presenter this morning is Mr. Francisco Hernandez Juarez, President of the Telephone Workers Union of the Republic of Mexico.
Mr. Hernandez, please.
MR. HERNANDEZ: (THROUGH TRANSLATOR) Thank you very much. Good morning.
Ladies and gentlemen, my name is Francisco Hernandez Juarez, as you have just heard, Secretary General of the Telephone Workers Union.
I would like to point out that the organization that I represent has approximately 50,000 affiliates throughout the country. Actually, we are represented in 31 of the 32 states that make up the Mexican Republic.
First of all, I would like to express my great appreciation to the representatives of the Labor Department of the United States and Canada, as far as the Labor Department goes, for having hosted this meeting.
Secondly, I would like to point out that I am here not only because of the fact that the Telephone Workers Union of Mexico is responsible for having initiated this whole procedure within the framework of the North American Agreement on Labor Cooperation, I am also here and above all because in my entity as a unionist, I believe and I trust in solidarity of workers and as a worker and as a union leader in a globalized and complex work of intertwined economies that are interdependent, I wish to trust in the aquitative dialogue, in bargaining, in negotiation, in justice and laws and institutions as being the best instruments to improve the relationship between management and workers and to conciliate their problems.
I would also like to point out that the decision to initiate these procedures to its ultimate consequences was not a coincidence, nor the result of a personal decision. It was the unanimous decision of our national congress celebrated in January of '95 in which we affirmed the commitment that we have with the alliance that we have with the workers union of telecommunications from the United States and Canada in February of 1992, as well as our participation in the international trade unions for postal workers and communication workers.
In the case of La Conexion Familiar, it was a particular concern for us, not only the fact that certain laws were being violated in such an obvious manner, but that there was also a racist aggression and also that this was not by just a small fraction of a systematic aggression towards labor organization on behalf of Sprint with whom Telefonos de Mexico has a strategic alliance.
I would like to make as a complementary observation the following. Through a high executive of Telefonos de Mexico, it was tried to convince me not to speak this day, precisely because it would demerit the presence of Sprint in its alliance with Telefonos de Mexico.
I pointed it out to this executive that that would mean that Sprint meant to change its attitude in the situation of La Conexion Familiar but he told me that he could not assure that it would happen. Therefore, I answered that I could not therefore not attend this meeting.
Since this violation of the rules were published, we want justice to be carried out towards the people from La Conexion Familiar but also we want to send a clear message, not only to Sprint but to all telecommunications companies in the region, the continent, throughout the world, about what workers and trade unions are willing to do if they stand together to defend each other and to make progress as far as our rights go, in spite of the aggressions and offenses that have taken place against workers rights. These affect not only the workers but the companies themselves, even though this might not seem too evident for the general public.
We wish that this is a message of the defense of basic human rights because labor rights and trade union rights are part of human rights. We would also like to appeal to the transnational companies, to multi-nationalist companies, that they should keep open this dialogue with trade workers, with trade unions all over the world regardless of their nationality.
We wish that the multi-national companies should understand that progress is not necessarily something that is in conflict with the right of workers, with the assurance of their working place. If companies such as Sprint are willing to do everything in their power in order to prevent trade unions to exist, then trade unions would have no other option than to carry out whatever is necessary to accomplish the contrary. And if we had the same despotic attitude the company has shown, then we would also have to plan our fight in a confrontational way.
This absurd confrontational scenario is not desirable for anybody, but should it happen, it would be a responsibility of the companies. It would be their responsibility. We wish also that through this we can appeal to our governments that through modernization and regional global integration some policies and strategies would be developed that would promote a more balanced working environment, a fair working environment and therefore better for everybody involved.
We trust that this North American Agreement on Labor Cooperation be an instrument that is sufficient and enough to comply with all these expectations but we also trust in the fact that for the same reason it could be the basis for a more specific and more functional regulation that could defend workers' rights.
Through the IPCTT, we have defended a code of behavior for multi-national companies. Through this code, companies should recognize trade unions and their representatives, depending on the country they come from. In the same way, they cannot wander from one place to the other trying to avoid the recognition of trade unions, nor will they be able to interfere in the initiatives of the workers, such as happened in La Conexion Familiar.
I am convinced that the colleague Morton Bahr is also going to talk about this and in advance I would like to express that we coincide with his opinions and we are willing and determined to go on in our joint struggle.
To conclude, I would like to make one final remark. It is definitely the first time in which a Mexican trade union initiates a legal action to support labor struggle for the American workers. This is for us an incredible engagement and commitment that we undertake. We believe that the conditions to act in such a manner will be more favorable in the future because within the Mexican labor movement, there are important changes taking place and in which we communication workers are taking part of.
This redefines the traditional patterns of international labor organization, in order to be able to believe in justice and that this is not only an idea but a real possibility, that it is based on unity and solidarity amongst all workers.
MR. OTERO: Thank you very much, Mr. Hernandez Juarez.
I now invite to the podium Mr. Morton Bahr, the president of the Communications Workers of America and a member of the Executive Council of the AFL-CIO.
MR. BAHR: Good morning.
MR. OTERO: Good morning.
MR. BAHR: I am Morton Bahr, the president of the Communications Workers of America. CWA represents about 600,000 workers, primarily in the telecommunications and information industries.
I want to commend the Secretaries of Labor of the United States, Mexico and Canada for their decision to hold this public forum on Sprint's sudden shutdown of La Conexion Familiar.
We were stunned when Sprint fired all of the workers within one week before they were scheduled to vote in a union election. This forum will help expose and we hope stop the use of sudden plant closing and other legal and illegal anti-union behavior which prevent workers from exercising their right to organize.
I also want to thank Deputy Under Secretary Jack Otero for presiding over this forum and giving the discharged Sprint workers the opportunity to finally be heard.
Finally, on behalf of the workers of LCF, I want to thank the Mexican Telephone Workers Union, STRM, and it's president, Francisco Hernandez Juarez, for taking up the cause of the LCF workers and filing a formal complaint under the provisions of the North American Agreement on Labor Cooperation.
I will submit for the record my complete written statement and attached exhibits. In this testimony I lay out in greater detail CWA's relationship with Sprint, Sprint's anti-union philosophy and an overview of the events which occurred at LCF. Today, given our limited time, I will focus on the importance of this forum and the recommendations we wish to present to the governments which have convened it.
The decision to hold this forum is a breakthrough for workers in Canada, Mexico and the United States who want to improve their working conditions and their standard of living by joining together to form a union. The forum has focused public attention on one of the worst cases of corporate abuse of workers rights and on the use by companies of a sudden plant or office closing to prevent their workers from organizing. Sprint's action epitomizes decades of increased attacks by corporations on workers rights.
This forum has focused attention also on the inability of U.S. labor laws to protect workers rights and the inability of the United States Government enforce its own laws.
The National Labor Relations Act is broken and our enforcement mechanisms are ineffective. We must act now to fix them. We hope this forum will contribute to efforts here and abroad to educate the public and our elected officials that meaningful reforms are needed if we want workers to organize and to bargain for a better life.
This public forum is important too because it demonstrates that the NAFTA labor side agreements provide another vehicle to hold Sprint and other companies who violate workers rights accountable for their actions.
As our country's integration into global economy deepens, we must look to trade agreements to establish an international code of conduct towards workers and their elected representatives. Foreign companies want access to the lucrative U.S. market and U.S. companies want to leverage their financial, technological and managerial to penetrate markets outside the U.S.
Companies on all sides want to increase opportunities for international trade and investment. Governments must balance these opportunities with the responsibilities of creating good jobs and respecting the rights of workers to organize and bargain collectively.
The Preamble and Annex 1 of the NAALC contain all the necessary objectives: the right to organize, the right to collective bargaining, the need to create employment opportunities, improve working conditions and raise living standards and the need to "protect, enhance and enforce basic workers' rights."
What is missing are effective remedies for violations of these objectives and prompt enforcement of these remedies. Under the current provisions of the NAFTA labor agreement, companies do not face any risks for blatantly violating the agreement. Yet there is nothing that companies understand better than risk. They manage for it every day of the year.
In the current political environment, where trade agreements are drawing more criticism, the governments of the U.S., Mexico and Canada are in a unique position to tell these companies in no uncertain terms that more trade agreements will never fly unless there are improved protections for workers, their jobs and their rights. The agreements must provide meaningful penalties for violation of these rights.
Today we are recommending that the North American Agreement on Labor Cooperation be amended to include an international code of conduct for enterprises operating in the three countries which are parties to the NAFTA agreement.
CWA together other telephone unions affiliated with our international trade secretariat, PTTI, propose a code of conduct which in summary would require companies:
(1) To disclose to employees and their elected representatives company plans for investment, employment levels, technological change and movement of work.
(2) To meet annually with all their unions to discuss organizational rights, equal employment opportunities, safety and health, and education and training.
(3) To not interfere in worker organizational efforts where they conduct business.
(4) To recognize a union when the workers show the appropriate level of support.
(5) To not shift work from one nation to another to avoid a union.
The full text of the code of conduct is in my written statement.
In my written statement, we also make three recommendations to the government of the United States. I will summarize them here.
(1) We need meaningful penalties to deter companies from illegally interfering with their workers' right to organize. In the Sprint case, the violations were astounding yet the remedy was a mere notice to employees who have already been thrown out of work that the company will not do it again. This only added insult to injury.
(2) We advocate a change in the law which would deter companies from using the subterfuge of alleged business considerations to close a plant to avoid a union and prevent a first contract. Under current law, injunctive relief is heavily weighted toward the employer and has been awarded by the courts in only a few cases. We recommend that if a union has filed for an election or if an election has been won by a union but a first contract has not been reached, a company which is considering a shutdown for business reasons (a) must open its books to the employees and the union representatives and (b) must prove its business case to an independent arbitrator before it can shut a facility down.
(3) The Federal Government can refrain from doing business with major labor law violators. Defense contractors who have defrauded the taxpayer have had their right to bid on new contracts suspended. The U.S. Government should extend this practice to companies which have been found to have committed major violations of labor law.
Above all else, this forum is very important because it gives the Sprint workers their first real opportunity to tell the story of what happened at LCF. This is a story of a company, the Sprint corporation, the third largest long distance telephone company in the United States, that tells its managers that their main job is not to provide for quality telephone service, but to keep the union out at all costs. It's in their handbook.
It is a story of more than 200 workers, mostly Latino women, who had the courage and determination to withstand the threats, the coercion and the spying by management to stand up for their rights. They got within one week of accomplishing the unprecedented feat of forming a union at Sprint's long distance division.
This is also the story of how a company used every trick in the book to try to stop these workers and in so doing committed over 50 violations of law.
It is also the story of a management which suddenly realized they were about to lose their first union election and decided to shut the place down.
It is the story of a senior Sprint executive, the vice president of labor relations, who fabricated evidence submitted to a government agency to make it appear that the closure was done for business reasons.
It is the case of a company which not only shut down a facility, suddenly and brutally in one day, to prevent these workers from voting in the union election, but did it in a way which sent a chilling message to all of its other employees that unionization is off limits.
You will hear today from the Sprint workers themselves who will describe for you in vivid detail the poor working conditions at this company, the energy and spirit of their organizing efforts, the anti-union campaign launched by Sprint against their drive, and the residual long-term effects of the shutdown on their lives.
You'll hear from many others about the international repercussions, the outrage in the Latino community, the concern among elected officials that current law is incapable of protecting workers in the public interest and the extent to which Sprint's actions have been commonplace in the private sector.
The workers of LCF are still waiting for a remedy in the legal case which is outstanding against Sprint. More than two years will have passed when the National Labor Relations Board finally issues its order. And it will be years more before all appeals are exhausted. This situation is simply unacceptable.
That is why this public forum is so important, not only to the workers of LCF but to others who will face similar circumstances in the future. Sprint must be reminded again and again that CWA and all those who have stood up for the rights of these workers will never give up this fight until Sprint provides them with meaningful remedies, including compensation and job opportunities at other Sprint locations.
We know that in spite of the chilling effect of the LCF closing on other Sprint workers and the continued fear and intimidation by Sprint management Sprint workers will again stand up and seek to be recognized.
These workers in Sprint need to know that when that time comes the world will be watching and fair minded people will be ready to act against any attempt by Sprint to interfere with its workers' rights.
This forum gives the Sprint workers new hope that when that time comes the Federal Government and their elected representatives will have fixed our system of labor laws and be ready to enforce them.
The workers are not asking for handouts or entitlements. They are simply asking the government to level the playing field so they can stand up for their rights without the fear of reprisals from their employers. They should be able to organize into a union without the fear of losing their jobs.
We hope the testimony presented in this forum and the six-month study by the international labor secretariat will cause the governments of Canada, Mexico and the United States to take the necessary measures to strengthen the NAFTA agreement to prevent the recurrence of the travesty suffered by the Sprint workers.
Thank you.
MR. OTERO: Thank you, Mr. Bahr.
I would like to now invite the next presenter, Professor Roberto L. Corrada, Assistant Professor of Law at the University of Denver, Denver, Colorado, who has registered to speak on behalf of Sprint Inc.
Professor Corrada, please.
PROFESSOR CORRADA: Good morning. My name is Roberto Corrada. I am an assistant professor of law at the University of Denver, College of Law, Denver Colorado. I have been teaching labor and employment law courses and courses in contract law and administrative law at the law school since 1990.
In December 1995, I was asked by Sprint Corporation to conduct an independent review of the regulatory activity undertaken and the two opinions that have been issued in a labor dispute involving La Conexion Familiar, LCF, a business entity that had been affiliated with Sprint. The questions posed to me were (1) whether the National Labor Relations Board's actions in this matter demonstrate enforcement of the National Labor Relations Act, NLRA, the United States labor law implicated by the dispute, and (2) whether the two opinions in this matter have applied the appropriate NLRA standard in deciding the dispute.
My conclusion based on a review of the decisions as well the enforcement activity undertaken by the NLRB in this matter is that United States labor laws involving the NLRA have been enforced and the proper standards applied.
In this testimony, I will first talk briefly about the origin and acceptability of the standard, the Right Line test applied by the district court judge deciding whether to issue a 10(j) injunction in the case and the administrative law judge deciding the merits of the case.
Next, I will assess the regulatory activity undertaken by the NLRB in this matter and finally I will discuss the two opinions, the district court opinion and the administrative law judge's opinion that have been issued in this case.
First, with respect to the standard applied, this matter implicates the NLRA, the United States labor law that governs relations between unions and management in the private sector.
MR. OTERO: Professor Corrada, they want you to slow down so that the translation can take place. Take your time.
PROFESSOR CORRADA: Excuse me. Maybe I had a little bit too much coffee this morning.
In particular, it involves a dispute under Section 8(a)(3) of the Act, which establishes at its core that it is an unfair labor practice for an employer to discriminate in regard to hire or tenure of employment or any term or condition of employment, to encourage or discourage membership in any labor organization.
Administrative Law Judge Wacknov and District Court Judge Walker both applied the NLRB's Right Line standard in deciding the claims of the parties involving Section 8(a)(3) of the Act. The NLRB general counsel also argued for application of the Right Line standard in this case.
The standard was announced by the National Labor Relations Board some 16 years ago in its 1980 decision in Right Line and was upheld by the United States Supreme Court in its 1983 decision in NLRB v. Transportation Management Corporation as a reasonable interpretation of the requirements of Section 8(a)(3).
The Right Line standard may well represent the best approach to deciding who should prevail when legitimate but competing interests of labor and management must be reconciled under Section 8(a)(3). According to the Board, a dual motive case is presented under Section 8(a)(3) when there is evidence of employer reaction to union organizing activity but there is also believable competing evidence that an employer has acted pursuant to a legitimate business reason. This existence of both a good and a bad reason for the employer's action requires further inquiry into the role played by each motive.
In Right Line, the NLRB adopted a standard that was used by the United States Supreme Court in Mt. Healthy v. Doyle to decide a constitutional rights dispute between a school board and a teacher. The Supreme Court stated that a rule of causation which focuses solely on whether protected conduct played a part, substantial or otherwise, in a decision not to rehire could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing.
Most importantly, according to the court, the constitutional principle at stake is sufficiently vindicated if such an employee is place in no worse position than if he had not engaged in the conduct.
Following the Supreme Court's analysis in Mt. Healthy, the Right Line test announced by the NLRB places the initial burden on the Board's general counsel to make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct.
The Right Line test is a well reasoned standard for governing dual motive cases, is consistent with the legislative history of the NLRA and fairly accommodates the legitimate competing interests of labor and of management under the Act.
The Right Line standard has been broadly accepted and indeed has become a fixture in United States labor and employment law. Since the Supreme Court's affirmance of the Right Line standard in 1983, it has been faithfully applied in scores of Section 8(a)(3) cases, yielding results in favor of both unions as well as employers.
The NLRB has applied the Right Line standard to partial closing cases similar to the LCF case on a number of cases. For example, the C.M. Breyer Corporation case in 1993, Cub Branch Mining in 1990, and the Redwood Empire case in 1989.
Moreover, the test has been used in cases involving employer action impinging constitutional rights, as in the Mt. Healthy case, and in non-employment cases involving dual motives where constitutional freedoms are implicated, as in the Arlington Heights case.
The test has also become an important standard in employment discrimination law in the United States. In 1989, the Supreme Court issued its decision in Price Waterhouse v. Hopkins in which it applied the Mt. Healthy Right Line test to dual motive cases brought under Title 7 of the Civil Rights Act of 1964 which protects against discrimination based on race, color, sex, national origin and religion.
Let me now turn to the application of the Right Line standard in the matter involving La Conexion Familiar, LCF. I will discuses first the NLRB's enforcement activity in the case, then the district court decision involving the 10(j) injunction and, finally, the administrative law judge's decision on the merits of the case.
In conducting my review of the NLRB's enforcement activity and the decisions by District Court Judge Walker and ALJ Wacknov, I have examined the written opinions as well as the briefs filed by both parties. This opinion is limited to a review of the written materials in this matter. I have not personally reviewed the documents filed with the ALJ or the district court and have relied on the characterizations made of them in the written ALJ and district court decisions and in the briefs filed by the parties. In addition, there can be no effective review of ALJ credibility determinations by persons like myself who have not personally listened to witness testimony.
Given all of that, with respect to the NLRB's enforcement activity, it is my considered opinion that the level of enforcement activity undertaken by the Board in this matter has been extraordinary. It is not common, for example, for the NLRB to seek a Section 10(j) injunction in a labor dispute. General Counsel Fred Feinstein stated in October of 1995 that, "The Board is filing more 10(j) cases although they still represent only about 3 percent of the total number of unfair labor practice complaints issued."
In addition to the NLRB 10(j) filing, the NLRB's general counsel's office has proceeded aggressively to enforce the NLRA in this matter. The NLRB general counsel's brief in this case filed with the ALJ is in excess of 250 pages in length, detailing a large amount of evidence and testimony. The brief is impressive with respect to the way it has organized the evidence and with respect to the way that it argues that the evidence should be assessed under the Right Line standard.
When the brief is considered alongside the NLRB's decision to seek a 10(j) injunction in the case it is more than fair to conclude that the Board's efforts in LCF have been above average in quality and extensive in scope.
As I mentioned before, the NLRB regional director, as part of its enforcement of the NLRA in this case, filed a petition in federal district court for the issuance of a 10(j) injunction. In the 9th Circuit, district courts must weigh the likelihood of success on the merits against the possibility of irreparable injury, mindful both of public interest and a federal court deference to NLRB decisions.
In assessing whether the Board was likely to prevail or merely had a fair chance of success on the merits, the district court properly chose to apply the Right Line test. The district court first analyzed the Board's evidence to determine whether a prima facie case had been presented. Based on the hearsay nature of the Board's evidence as well as the position of the persons making the allegations against respondent and the context in which alleged threatening statements were made, the district court characterized the Board's chances at a prima facie case as fair at best.
The district court nevertheless and in line with the Right Line requirements shifted its focus to analyze the quality of the respondent's evidence supporting its action as motivated by legitimate business reasons. Ultimately the district court was persuaded by the extent of the evidence presented by the employer that showed substantial losses by LCF. Rather than a projected profit of 7.9 million, LCF's actual earnings in January and February of '94 projected a year-end loss of 3.9 million.
In addition, between January and March 1994, the evidence showed that LCF lost 10,000 customers and that the churn rate, which is the percentage loss of customer base, was greater than 20 percent higher than projected.
The district court went on to weigh the hardships of an injunction on the parties and found that since the facility had already been closed for a time, the hardship of reopening would fall squarely on Sprint without much gain to the workers involved, many of whom were by that time unreachable or had already secured new employment. Thus, having failed to meet the burdens for a 10(j) injunction, the district court refused to grant preliminary relief.
Although the circumstances are certainly unfortunate, in my opinion it is hard to find fault with the district court's opinion. The court followed the standards for 10(j) injunctions in the 9th Circuit to the letter, engaging in a step-by-step approach to each requirement. Thus, in my opinion, the district court evaluated the evidence on both sides and applied the burden shifting analysis of Right Line in an appropriate manner.
A hearing was held on the merits of the LCF case in San Francisco during November and December of 1994. The hearing was presided by Gerald Wacknov, an administrative law judge in the NLRB's division of judges. At the outset, I find it striking and significant that both the district court deciding the Section 10(j) matter and the ALJ deciding the merits of the case both viewed the evidence in a similar fashion. The fact that two independent decisionmakers reviewing much of the same general evidence have reached similar conclusions with respect to such evidence tends to corroborate and lend credence to the view that the Right Line standard was properly invoked and appropriately applied.
The ALJ applied the Right Line standard in deciding the dispute between management and labor. In my view, this standard was appropriately applied given the quality of the evidence presented by both management and labor. It is precisely when there is good evidence on both sides of a dispute that the Right Line standard is appropriate invoked. There is nothing in the opinion that is unusual or remarkable compared with other ALJ decisions that I have reviewed that apply the Right Line standard in a dispute of this nature.
A review of the record evidence shows a sufficient amount of evidence to make out a prima facie case under a Right Line analysis. However, the record also shows substantial evidence to conclude that the employer met its burden of proving that LCF would have been closed for legitimate financial reasons.
The employer's evidence concerning a $12 million variance in forecasts versus outlook for LCF in 1994 and the employer's evidence concerning the future of LCF given competition by MCI and AT&T was persuasive, tending to support the ALJ's conclusion that the employer's burden under Right Line was met.
Based on the very detailed findings of facts set out in over 30 pages of the ALJ's decision, I can fairly conclude that the ALJ reached a reasonable decision under the Right Line approach.
Thank you.