3. Background

Review of Public Communication CAN 2003 – 1

<< Review Process | Table of Contents | PDF Version | Mexican Labour Law >>

This section presents a summary of the information provided by the submitters, the Mexican NAO, and other interested parties.

Notwithstanding considerable inconsistencies between different versions of events, the NAO did not attempt to reconcile the facts presented, nor does it believe that it is necessary to do so. Despite the discrepancies, the key issues related to the obligations stemming from the Agreement are not in question.

3.1  Information from the Submitters

3.1.a  Overview

Public Communication CAN 2003-1 raises allegations that Mexico failed to enforce its labour laws on freedom of association, occupational health and safety, and minimum employment standards with respect to events that occurred from 2000 to 2003 at Matamoros Garment, and between June 2003 and February 2004 at Tarrant México, two apparel factories in the state of Puebla, Mexico.

The submitters also argue that there has been "a persistent pattern of failure to enforce its labour law" on the part of Mexico. In this regard they refer to events in 2000-2001 at another factory, Kukdong International México in Atlixco, also in the state of Puebla, and to previous communications in which similar issues have been raised, including the following:  US 94-03, US 97-02, US 97-03, CAN 98-1, US 99-01 and US 2000-01.

The submitters describe similar chains of events at both Matamoros Garment and Tarrant México. In each case, workers had grievances about their working conditions, and when they complained to management, in their view, very little improved. They say that, because the incumbent unions in both plants did little to represent workers, they had to organize themselves. They staged a work stoppage to protest their situation, but with little effect. They next decided to form an independent union to negotiate with their employer, by holding an assembly, signing the required documents and membership lists, and seeking to register the new union with the appropriate authorities, so that it would have legal status to act on their behalf. In both plants, the employer responded to the petition with a campaign of intimidation, dismissals and coercion, and, at Matamoros Garment, the incumbent union participated in the intimidation.

Both petitions for registration were denied by the responsible authority, the Junta Local de Conciliación y Arbitraje (JLCA) of the state of Puebla. The submitters say that the JLCA failed to provide a fair process for the registration of the new unions, and failed to protect union supporters from discrimination and intimidation by company officials. They also say that the Mexican government has failed to ensure that the JLCA is impartial and independent. In addition, they allege in the case of Matamoros that local police and government authorities failed to protect workers from intimidation by the incumbent union.

The submitters also make a series of allegations with respect to the workers' underlying concerns about conditions in the two plants. They say that Mexican authorities failed to enforce laws on minimum wage, timely payment of wages, hours of work and overtime, severance pay in case of layoff, overtime pay, and prevention of occupational illnesses and injuries.

In order to clearly identify the issues, the following sections summarize separately the information received from the submitters with respect to each NAALC principle relevant to their allegations – freedom of association and the right to organize, minimum employment standards and occupational safety and health. Readers may however wish to refer to the following chronological tables in order to see the overall sequence of events described in the Communication.

Events	Date
Matamoros Garment opens for business The incumbent union is affiliated with the CROC	1999
Work stoppage regarding unpaid back wages The SFV replaces the CROC-affiliated union and signs a collective contract	November 2000
Flooding and unsanitary conditions of the cafeteria	August-September 2002
Wages not deposited for workers who had chosen direct bank deposit of their wages	October 25, 2002
Workers are often asked to stay to work past the closing time of 5:00 pm	November-December 2002
Wages not deposited for workers who had chosen direct bank deposit of their wages	November 1, 2002
Workers are asked to come in to work for half of the day but are forced to work until 7:00 pm. This a national holiday.	November 20, 2002
Some weeks, employees are not paid at all or are paid only 50% of their salaries	December 2002
Wages not deposited for workers who had chosen direct bank deposit of their wages	December 20, 2002
One-day strike Assembly to form an independent union:  SITEMAG	January 13, 2003
Back wages are paid in presence of the JLCA	January 14, 2003
SITEMAG files its registration petition with the JLCA of Puebla	January 20, 2003
Agreement signed between the director of the plant and workers' representatives regarding the demands presented during the work stoppage	January 21, 2003
SITEMAG leaders file a complaint for harassment with the Puebla State Attorney General's Public Prosecutor SITEMAG leaders meet with municipal authorities to demand increased police protection	February 25, 2003
Some workers are sent home due to lack of production	February 26-March 24, 2003
Decision by the JLCA to deny SITEMAG union registration	March 19, 2003
Last day of production in the plant	March 20, 2003
59 workers file a lawsuit against the factory to the State Attorney General Office for failure to pay all the workers their legally entitled wages	March 24, 2003
Temporary plant closure for two weeks Workers are paid their last two weeks' wages	March 24, 2003
SITEMAG receives JLCA's written decision by mail denying registration	March 27, 2003
Announcement of another temporary closure of the plant until May 2	April 8, 2003

Events	Date
Confecciones Jamil starts its operations	2000
Confecciones Jamil is bought by Tarrant Apparel Group and becomes Tarrant México	March 29, 2001
Tarrant México signs a collective contract with a union without the knowledge of workers. Workers are not aware that a union is representing them	June 4, 2002
Work stoppage to protest working conditions. Workers' coalition negotiates with plant management without reaching agreement Workers' coalition presents to the company in front of JLC of Tehuacán a list of 14 demands. Plant administrator refuses to negotiate with coalition	June 10, 2003 June 11, 2003 June 12, 2003
Conciliation talks between company and workers	June 18 " 30, 2003
Plant closures every Monday	July-August 2003
Conclusion of a 16-point agreement between workers' coalition and employer.	July 8, 2003
Assembly to form an independent union, SUITTAR, and election of executive committee	July 12, 2003
Seven SUITTAR leaders are fired Two agree to resign voluntarily	July 16, 2003
Approximately 230 additional workers are dismissed About 75% of them accept severance payment lower than what they are legally entitled to	August 5-20, 2003
SUITTAR files its registration petition with the JLCA of Puebla	August 7, 2003
SUITTAR files with the JLCA a reinstatement demand for five leaders fired.	August 7, 2003
Over 500 additional workers are laid off	September-December 2003
SUITTAR files a reinstatement demand with the JLCA for a second group of 22 workers	September 4, 2003
Many Mondays, the plant is closed	October 2003 – January 2004
Decision by the JLCA to deny SUITTAR union registration	October 6, 2003
Reinstatement hearing for the first group of five workers dismissed July 16:  company makes a severance offer but workers ask to postpone the hearing	October 15, 2003
Reinstatement hearing for first group:  company's lawyer does not show up and hearing is postponed	October 22, 2003
Reinstatement hearing for the second group of 22 workers:  20 of them accept the company's severance offer	October 23, 2003
SUITTAR files an appeal of the JLCA's decision to deny the union registration. The appeal is assigned to the Third District Court of Puebla	October 27, 2003
Four of the five leaders from the first group accept the company's severance offer and desist from the appeal of the JLCA's registration denial	October 27, 2003
The Third District Court accepts for review SUITTAR's appeal	November 4, 2003
SUITTAR files an appeal addendum with the Federal Court designating the remaining member of first group to represent SUITTAR's common interests in the appeal process	November 7, 2003
SUITTAR files a reinstatement demand for a third group of two workers	November 13, 2003
Hearing of SUITTAR's appeal:  the hearing is postponed because the JLCA has not yet delivered its report on the case	November 21, 2003
Fifth and last member of first group accepts the company's severance offer and desists from the appeal of the JLCA's registration denial on behalf of SUITTAR	November 28, 2003
Five workers from first group receive their severance cheques 20 workers from the second group negotiate their severance amount	December 2-3, 2003
Third District Court Judge dismisses SUITTAR's appeal because the appellants have desisted from their case	December 8, 2003
Plant is closed	December 20, 2003 – January 19, 2004
20 workers from the 2nd group agree on their severance amount 2 other workers from 2nd group negotiate their reinstatement/severance pay Reinstatement hearing for 3rd group of two workers:  one accepts the company's severance offer and hearing of the second one is postponed	January 9, 2004
Announcement that the plant will close for five to six months. Factory lays off all but 110 employees who will stay to finish remaining production	January 26, 2004
Tarrant México plant, now known as AZT International, officially closes All workers receive their severance payment	February 3, 2004
Reinstatement hearing for remaining two workers from 2nd group:  they ask to postpone the hearing	March 2, 2004
Reinstatement hearing for remaining 2 workers from 2nd group:  they accept the company's severance offer Reinstatement hearing for remaining worker from 3rd group:  worker accepts the company's severance offer	March 22, 2004

3.1.b  Issues Raised by the Communication

Article 1 of the NAALC lists the Agreement's objectives, which include promoting eleven basic labour principles, four of which are particularly relevant to the allegations reviewed in Public Communication CAN 2003-1:

• freedom of association and protection of the right to organize;
  
• the right to bargain collectively;
  
• minimum employment standards, particularly minimum wages and overtime laws; and
  
• prevention of occupational injuries and illnesses.

To further these objectives, each signatory country commits to a series of obligations listed in Part Two of the NAALC. The submitters allege that Mexico has failed to meet the following obligations in respect of the above-noted principles:

• ensure that its labour laws and regulations provide for high labour standards, consistent with high quality and productivity workplaces, and continue to strive to improve those standards in that light (art. 2);
  
• promote compliance with and effectively enforce its labour law through appropriate government action such as:  appointing and training inspectors; monitoring compliance and investigating suspected violations, including through on-site inspections; requiring record keeping and reporting; encouraging the establishment of worker-management committees; and providing or encouraging mediation and conciliation services (art. 3.1);
  
• ensure that its competent authorities give due consideration to any request for an investigation of an alleged violation of its labour law (art. 3.2);
  
• ensure that persons have appropriate access to administrative, quasijudicial, judicial or labour tribunals (art. 4);
  
• ensure that tribunal proceedings for the enforcement of its labour law are fair, equitable and transparent and to provide that such proceedings are not unnecessarily complicated and do not entail unreasonable charges or time limits or unwarranted limits (art. 5.1);
  
• provide that tribunal final decisions are made in writing without undue delay to the parties to the proceedings (art. 5.2);
  
• provide that parties to such proceedings have the right to seek review and, where warranted, correction of final decisions (art.5.3);
  
• ensure that tribunals are impartial and independent and do not have any substantial interest in the outcomes of the matter (art 5.4); and
  
• promote public awareness of its labour law (art. 7).

3.1.1  Freedom of Association

3.1.1.a  Matamoros Garment

Matamoros Garment S.A. de C.V. is located in Izúcar de Matamoros, Puebla. It opened for business in 1999.

At the outset, workers in the plant were represented by a union affiliated with one of the largest and oldest union confederations in Mexico:  The Confederación Revolucionario de Obreros y Campesinos (CROC). In November 2000, workers staged a work stoppage, demanding two weeks' back wages and removal of the CROC-affiliated union. That union was replaced soon thereafter by the Sindicato Francisco Villa de la Industria Textil, Similares y Conexos (SFV), an affiliate of the Confederación de Trabajadores de México (CTM), the largest trade union confederation in Mexico.

According to the Communication, workers in the plant did not know how SFV came to represent them. Moreover, SFV signed a collective contract with the employer without the prior consent or knowledge of the workers. Workers nonetheless had dues to SFV deducted from their pay checks. When workers asked the union to produce a copy of their collective agreement, their request was refused.

On January 13, 2003, 190 out of the approximately 250 workers employed at Matamoros Garment went on strike to protest poor working conditions (including forced overtime, being locked in the factory, verbal harassment, and unhealthy conditions in the cafeteria), and the failure of the employer to pay back wages owing. They also protested against the incumbent union, which they felt did not represent them or protect their interests, and the fact that they never had the choice to be part or not of the CTM-affiliated union.

That day, a representative of the Junta Local de Conciliación y Arbitraje (JLCA) of the state of Puebla came to the plant to speak to the workers, who gave him a list of demands regarding their complaints. He urged them to return to work and said that getting an agreement on back wages was more important than their other complaints.

The same day, 162 workers signed documents to form an independent union, the Sindicato Independiente de Trabajadores de la Empresa Matamoros Garment S.A. de C.V. (SITEMAG). SITEMAG filed its registration petition (registro) with the JLCA on January 20, 2003.

The submitters claim that the move to organize SITEMAG prompted retaliation and intimidation on the part of the employer. In the days leading up to the filing of SITEMAG's petition for registration, it is alleged that workers were told by management to stop organizing or they would lose their jobs. Similar threats were made before the visit of a representative of PUMA, one of Matamoros Garment's customers, on January 18, 2003.

On January 21, 2003, the director of the plant and five workers' representatives signed an agreement addressing the issues of freedom of association, unhealthy cafeteria conditions, forced overtime, and workers being locked in the factory. The agreement stated that workers were free to form a union and the company had no authority to choose the union representing the workers. Submitters claim that workers' representatives were taken against their will to the management office and were intimidated into signing the agreement, even though they believed that it was not favourable to them. It is also alleged that a JLCA representative witnessed the signing of the agreement but did not mediate the labour dispute.

According to the submitters, the climate at the factory worsened in the following weeks. The plant was losing business. On many occasions managers blamed the workers' attempt to organize an independent union for the loss of business, and said that if their efforts continued the factory would lose contracts, which would result in less work at the plant. Managers asked workers to publicly retract their grievances and told them not to tell auditors about problems at the plant when licensees came to conduct on-site inspections.

In addition, the incumbent union allegedly tried to intimidate SITEMAG supporters. On February 12, 2003, SFV representatives delivered a two-hour speech to workers in the factory, during work hours, urging workers to stop their efforts to form an independent union. SFV representatives told workers that if they continued to seek an independent union, PUMA, a key client, would withdraw its business from the factory permanently. Workers were required by the employer to remain at their workstations during the speech so that they would have to listen to it.

In February 2003, SITEMAG leaders noticed they were being followed by 12 men conducting surveillance and taking photos. They believed that SFV was responsible for the surveillance. They filed a complaint on February 25^th with the office of the Puebla State Attorney General's Public Prosecutor in Izúcar de Matamoros. They also met with municipal authorities and requested increased police protection. However, workers did not notice any increase in police protection other than a few police cars patrolling outside of the plant premises when workers were leaving at closing time, and only for a few days after they filed their complaint. No further action was taken on the complaint.

Starting on February 26, 2003, management began sending workers home due to a lack of production. The submitters allege that some workers were targeted for layoff because of their union activism.

On March 19, 2003, the JLCA rendered its decision on SITEMAG's petition for registration. It denied the petition on four grounds:

1. The petitioners had failed to submit two authorized copies of the list of those attending the union's constituent assembly in accordance with the requirements of Article 365 of Mexico's Federal Labour Law (LFT). More specifically, the second typed copy of the attendance list submitted by the petitioners had to be disregarded because it purported to be authorized by a Ricarda Vasquez Martinez, who signed as Organizing Secretary of the union (one of three union officers required by law to authorize the list), while the second attendance list itself does not include a Ricarda Vasquez Martinez, but rather a Ricarda Vasquez Hernandez. Thus, the JLCA concluded, Ricarda Vasquez Martinez could not have authorized the list. While the first, handwritten list may have contained the signature of Ricarda Vasquez Martinez, this is of little relevance because it is different from the second one, and thus there are not two authorized copies, and in any event it does not state the purposes of the union, as the second one does. Similarly, the other documents shown could not have been duly authorized either, because Ricarda Vasquez Hernandez could not have authorized them.
2. The petitioners had not provided proof that all workers who signed the assembly list were 14 years old or older.
3. One worker whose name appeared on the attendance list submitted by the petitioners later appeared before the JLCA and stated that he had not signed the list.
4. The factory was closed and thus the legal requirement that there be at least 20 active service employees to form the type of union in question could not be met.

The submitters argue that the JLCA's decision to deny registration to SITEMAG was based on technicalities and lacked legal foundations. The difference between the handwritten and the typed attendance list was plainly the result of a typographical error. The JLCA should have told SITEMAG about this technical deficiency in the petition and allowed the union to correct it. The other grounds cited by the JLCA were either incorrect or technical matters that should also have been brought to SITEMAG's attention for correction.

The submitters also argue that the JLCA was not impartial in the matter. The JLCA is a tripartite organization which includes representatives of business and labour. The submitters say that the labour representative who participated in the JLCA's decision on the SITEMAG registration petition is affiliated with the CROC, a union confederation whose member unions often operate as "sindicatos blancos", that is, unions that sign protection contracts with employers that do more to safeguard employer interests than to protect employees. The labour representative thus had a common interest with a union like the SFV in ensuring that new independent unions like SITEMAG did not get organized. Thus the labour representative on the JLCA could not be seen as impartial.

The JLCA's decision was mailed to the wrong address and as a result did not reach SITEMAG representatives until it was retrieved from a neighbouring house on March 27, 2003. This happened despite the fact that SITEMAG had provided the proper address in a letter delivered to the JLCA on February 12, 2003.

SITEMAG representatives did not appeal the JLCA's denial of registration. They say that they did not have sufficient time to do so within the 15-day period to file such an appeal, because such appeals require the assistance of specialized lawyers whose services are not available in the surrounding area, and they would not have been able to obtain such assistance and ensure that the required documents were drafted and filed within legal deadlines.

On March 24, 2003, Matamoros Garment ceased operations. Representatives of the factory announced to the workers, in the presence of representatives of the SFV and the JLCA, the implementation of a paro tecnico, a temporary work stoppage, due to financial difficulties encountered by the factory. Employees were told that they would be paid 50% of their salaries for the next two weeks. On April 8, 2003, the president of the JLCA announced another paro tecnico to last until May 2, 2003. During this period, workers continued receiving 50% of their regular wages. Workers did not receive any further notice about whether the factory had permanently closed or if the paro tecnico remains ongoing. Even though it is assumed that Matamoros Garment is now closed, workers never received any severance payment because the closure was only temporary.

Many SITEMAG supporters have since had difficulty finding work. The submitters believe that a blacklist of independent union supporters or union activists has been circulated among employers within the area. Workers told the NAO that when they show up at a factory looking for work, they are asked about their previous employment and then are told that there is no work for them. Some have been told that employers don't want them because they are considered "agitators".

3.1.1.b  Tarrant México

The sewing facility Confecciones Jamil S.A. de C.V. was built in 1999 in the municipality of Ajalpan, near Tehuacán, in the state of Puebla. It began operations in 2000 with a workforce of approximately 2,000 employees.

During that year, negotiations took place in which the Los Angeles-based Tarrant Apparel Group (TAG) sought to buy the factory. On March 29, 2001, TAG completed the acquisition of Confecciones Jamil, which then became Tarrant México S. De R.L. De C.V..

On June 10, 2003, about 800 workers at Tarrant México, out of a workforce that then numbered about 1,100, began work stoppages to seek improvements in their working conditions.

The following day, workers in the plant formed a coalition comprised of seven representatives who sought to negotiate improvements in working conditions with plant management.

On June 12, coalition representatives met with legal counsel for Tarrant in front of the Junta Local de Conciliación de Tehuacán (JLC). The workers presented their demands to the employer through the JLC in a 14-point Pliego Petitorio. It was agreed that the company's lawyer would ask the plant manager to recognize the coalition and to discuss the workers' demands. However, it is alleged that when the coalition returned to the factory, the plant manager again refused to negotiate and threatened the workers by telling them that they would regret their actions.

The coalition persisted in its efforts, and a further meeting at the JLC was scheduled for July 8, 2003. On that day the coalition agreed with the employer to a 16-point settlement of their demands. The agreement was reached with the assistance of the JLC.

However, soon afterwards workers found that the settlement was unsatisfactory from their perspective. Of particular concern was that one clause agreed upon stipulated that the coalition would end its representation of the workers in negotiations and stop interfering in the company's affairs. At the NAO public meeting, workers explained that they had signed the agreement under pressure and did not have sufficient time to study its implications.

At the beginning of July, Tarrant management began a reduced work week. Every Monday during July and August, the plant was closed. According to plant management, this was due to lack of business.

On July 12, 2003, approximately 400 workers attended an assembly to form a union to represent workers in the Tarrant México plant, the Sindicato Unico Independiente de Trabajadores de la Empresa Tarrant México S. de R.L. de C.V. (SUITTAR). More than 300 other workers joined this union during the following weeks.

On July 16, 2003, seven SUITTAR leaders were summarily dismissed and escorted out of the factory. Two immediately accepted severance payments in settlement of any claims against Tarrant.

On August 4, 2003, Tarrant workers marched to protest the firing of the SUITTAR leaders, the weekly plant closures, as well as possible future lay-offs that had been reported in the local media.

On August 7, 2003, SUITTAR representatives filed a petition with the Puebla JLCA to register the union. The petition was signed by 736 workers, or approximately 75% of the Tarrant workforce. August 7 was the earliest opportunity to present the petition, since the JLCA was closed for vacation during the last two weeks of July.

That same day, SUITTAR representatives also presented to the JLCA a formal demand for the reinstatement of the five SUITTAR leaders dismissed on July 16^th whose cases had not been resolved. This was the first of several such demands, the outcome of which will be discussed below.

Company management changed in August 2003. Between August 5 and 20, 2003, close to 230 additional SUITTAR supporters were dismissed. Tarrant management stated that the reason for the layoffs was insufficient demand for the company's products.

On August 18^th, some Tarrant workers and their lawyer went to the JLC to meet with the company to seek an end to the dismissals of SUITTAR members, but plant representatives did not show up.

The submitters say that these lay-offs targeted SUITTAR supporters for anti-union reasons, and that Tarrant did not follow legally required processes for instituting layoffs due to economic reasons. They say that JLCA representatives themselves confirmed that Tarrant had not sought the legally required authorization before laying off employees for economic reasons.

On September 4, 2003, SUITTAR filed a demand for reinstatement on behalf of a second group of 22 fired leaders.

From September to December 2003, over 500 additional workers were laid off. Again the company explained the lay-offs on the basis of lack of work. However, the submitters say that during this period, the company also hired new employees on short-term, renewable individual employment contracts. Between October 2003 and January 2004, there were also regular plant closings on Mondays.

The submitters say that, during this period, workers at Tarrant were frequently subjected to threats by management that the factory would close or lose contracts if they continued to seek to organize a union. Some workers reported that factory supervisors had said to them that dismissed union leaders deserved to be dismissed for their union activism. Some of the workers were also told that their dismissal was due to their union activities.

On the other hand, an article from the local media, provided by the submitters, shows that by October 2003, Tarrant had closed four of its eight plants in Mexico and was planning to close three more by the end of November 2003. Directors of the company stated that only the Ajalpan plant would be kept open. The article also reported that the company started firing employees at three other plants in June 2003, when labour conflicts at those plants started.

On October 6, 2003, the JLCA rendered a decision rejecting SUITTAR's petition for registration. The reasons for the decision were the following:

1. SUITTAR had failed to present in duplicate the legally required documents, as required by Mexico's Federal Labour Law (LFT). Specifically, it had failed to present two copies in addition to the original versions of each document.
2. SUITTAR members had failed to submit separate documents recording (1) the formation of the union and (2) the election of its executive committee in separate legal acts. These separate legal acts must take place at separate assemblies and must be recorded in separate documents.
3. SUITTAR's by-laws are deficient in that they fail to clearly mention the administration and disposition of the goods owned by the union, and they fail to clearly mention what sanctions may be applied to union members under union disciplinary procedures.
4. SUITTAR named a person as a union officer with respect to whom no evidence was presented to establish that she was either a member of the union or an employee of Tarrant. Since SUITTAR was an enterprise level union, she could not be a member of the union unless she was a Tarrant employee. Therefore she could not assume an office under which she is charged with protecting the interests of the members of the union.

The submitters argue that the decision lacks any foundation in Mexican law. Specifically, they submitted a legal opinion to the effect that:

1. The original documents count as one of the legally required two copies of the relevant documents.
2. There is nothing in Mexican law that requires that the acts of forming a union and electing its executive committee take place at different assemblies and be recorded in separate documents.
3. The union's by-laws do in fact provide detailed provisions governing the administration and disposition of goods owned by the union, and do spell out in detail the sanctions that may be applied to union members in the case of union disciplinary action.
4. The union officer in question was on the membership list of the union, but her name was misspelled where she was identified in the documents as an officer of the union. This was a minor typographical error affecting only one of her four given and family names. In any event, even if she was not eligible to serve as an officer of the union, the proper course of action on the part of the JLCA would have been to warn the union or to deny her the right to serve as a union officer. There is no basis in Mexican labour law to deny the registration of the union simply because one of its officers is not eligible to serve in her post.
5. Each of the deficiencies in the registration application that the JLCA purports to find is in fact a technical error that should have been brought to the attention of the applicants so that it could be corrected.

With respect to point number 5, it is to be noted that SUITTAR representatives met with the president or secretary general of the JLCA on August 27, September 15, 18, 24 and 25, 2003, to discuss the issue of legal recognition of the independent union, and thus there was ample opportunity to address technical deficiencies had the JLCA chosen to raise such matters.

SUITTAR filed an appeal of the JLCA's decision on October 27, 2003, with the Federal Court in the State of Puebla. The Court assigned the case to the Third District Court of Puebla.

Five workers signed the appeal documents. The appellants were the five SUITTAR executive committee members who had sought reinstatement after having been dismissed on July 16, 2003. Four of them desisted from the appeal on October 27^th, accepting severance payments in settlement of all of their claims against Tarrant. SUITTAR filed an appeal addendum on November 7^th designating the remaining SUITTAR executive committee member as the representative of its common interests in the appeal.

On November 4, 2003, the Third District Court scheduled a hearing for November 21, 2003.

On November 13, 2003, a third reinstatement demand was filed with the JLCA on behalf of two other workers.

On November 21^st, a judge of the Third District Court deferred the hearing on SUITTAR's appeal to December 8^th. The judge did this because the JLCA had not yet provided to the Court a report on the registration decision. According to Mexican law, this report is required in the appeal process and had been due at the Court by November 13th, at the latest (see section 4.2.1.f below).

On November 28^th, the last appellant resigned from employment at Tarrant and desisted from the appeal on behalf of SUITTAR, allegedly accepting in return a severance package equal to the amount that was legally required.

On December 8^th, the Third District Court Judge dismissed SUITTAR's appeal because all of the appellants had desisted from it, leaving no interested party to pursue the matter. On December 8 and 12, 2003, respectively, the two remaining SUITTAR leaders still employed at the factory were laid off.

In December 2003, Limited Brands, a client of Tarrant Apparel Group, insisted that Tarrant México reinstate the four remaining fired leaders or pay their full severance. Limited Brands did this on the basis of an independent investigation of alleged labour and human rights violations at the factory that it had conducted between November 6 and 10, 2003. Eventually, Limited Brands withdrew its business from the Ajalpan factory because of the factory's refusal to act upon the labour violations identified in the course of its investigation.

On December 20^th, the factory closed for four weeks. When employees returned to work on January 19, 2004, they were sent back home due to a lack of production. At this point, there were between 350 and 450 workers still employed at the plant.

On January 26, 2004, factory management informed workers that the plant would close for a period of five to six months and that 110 employees would be kept for another two weeks to finish remaining production requirements. The workers laid off were given severance payments. They also learned that day that the ownership of the plant had changed and the factory would from then on be known as AZT International.

The factory publicly announced its closure on February 3^rd.

On February 5, 2004, the President of the JLCA stated that the factory had closed down and workers would receive 75% of their legally-entitled severance pay. He said that these severance agreements had been negotiated between the company and an incumbent union already representing workers in the plant, the Sindicato Juvenil de Trabajadores y Empleados de la Industria Textil en General con sus Derivados, Corte, Confección, Bordados y Similares de la República Mexicana (SJT). The submitters say that workers were unaware of these negotiations and had no say over the decision of the established union.

The Tarrant México plant has remained closed since that time.

Workers told the Canadian NAO that their names and photos had been placed on a blacklist distributed to all businesses in the Tehuacán area. Workers and submitters said that some SUITTAR supporters could not find work in other plants and gave specific examples of what workers were being told where they were denied work. One worker said that he was dismissed from subsequent employment in the area because of his previous participation in the Tarrant workers' movement.

Workers also told the Canadian NAO that the settlements of their claims for reinstatement and their withdrawal of the appeal of the JLCA's registration decision were procured by intimidation on the part of Tarrant representatives. Specifically, they said that company representatives repeatedly threatened workers that if they did not accept the severance payments that the company was offering to settle their claims they would end up receiving nothing. As time wore on, these threats became more compelling. Once laid off, workers often lacked any source of income. There is no unemployment insurance program in Mexico, and new jobs often take a long time to find, either due to their scarcity, to blacklisting, or both. This directly impacted workers' families. For example, a Worker Rights Consortium investigation in August 2003, a copy of which was presented to the NAO, indicated that the children of some workers would be unable to attend school because they had no money to pay fees and other costs. After three or four months without wages, workers were under tremendous pressure from their family to accept any settlement money. Most workers in the end accepted less severance pay than they were entitled to under Mexican labour law.

Workers also told the NAO that Tarrant representative used aggressive tactics to secure settlements. Workers accused the lawyer for Tarrant of manipulating the hearing schedule in order to increase pressure on workers to settle, in one case by failing to show up at a set of hearings on October 22, 2003, so that it would have to be rescheduled, and in another one by dragging out negotiations to finalize settlement amounts, agreed to in principle on October 23, 2003, until early January 2004.

On January 5, 2004, Tarrant representatives arrived at the home of one of the SUITTAR leaders and began to pressure her to accept a severance offer, and to take the initiative herself to convince the two other leaders waiting for their reinstatement hearings to accept Tarrant's severance offers. On February 16, 2004, the plant manager sent representatives to these three SUITTAR leaders' homes to bring them to the plant to speak with her. There she offered them severance cheques and threatened that they would lose their severance unless they accepted those cheques. Tarrant's lawyer also met directly with each of the five workers who signed the appeal of the registration decision to try to persuade them to drop their appeal and reinstatement claims, notwithstanding that each of these workers was represented by a lawyer in both matters. In the case of the last appellant, Tarrant's lawyer drove him personally to the court house to sign and file the paperwork required to desist from the appeal and then took him to the JLCA's office to sign his voluntary resignation and severance settlement agreement.

A chronological table of events for each of the reinstatement claims mentioned above is set out below.

Events	Date
7 SUITTAR leaders are fired	July 16, 2003
A reinstatement demand for five of the seven leaders is filed with the JLCA	August 7, 2003
Reinstatement hearing:  the company makes an offer but SUITTAR decides to postpone the hearing until October 22, 2003	October 15, 2003
Company's lawyer does not show up and the hearing is postponed until December 2, 2003	October 22, 2003
Company's lawyer meets at the JLC of Tehuacán with four of the five leaders, who accept a severance offer that is above what is legally required and desist from the registration appeal	October 27, 2003
The fifth leader accepts a severance offer from the company and withdraws from the registration appeal on behalf of SUITTAR	November 28, 2003
Severance payments take place	December 2-3, 2003

Events	Date
A reinstatement demand for 22 fired leaders is filed with the JLCA	September 4, 2003
Reinstatement hearing:  20 of the 22 workers accept in principle a severance offer between 60% and 80% of what they are legally entitled to	October 23, 2003
The 20 workers who have agreed to resign continue to negotiate their severance amount but cannot come to an agreement with the employer	December 2-3, 2003
The group of 20 workers finalize the amount of their severance The other 2 workers negotiate their reinstatement and a follow-up hearing is scheduled for March 2, 2004	January 9, 2004
The 2 remaining workers ask to postpone their hearing until March 22, 2004	March 2, 2004
The 2 workers agree to a severance payment between 80% and 100% of their legally entitled severance	March 22, 2004

Events	Date
A reinstatement demand for two leaders is filed with the JLCA	November 13, 2003
Reinstatement hearing:  one worker has withdrawn his demand. The other one asks to postpone until March 22, 2004	January 9, 2004
The remaining worker agrees to a severance payment between 80% and 100% of his legally entitled severance	March 22, 2004

Finally, workers explained that there was considerable confusion about which union, if any, had rights to represent the workers at Tarrant México at the time that SUITTAR was organized. When the president of the JLC of Tehuacán met with the protesters during their march of August 4, 2003, he told them that there was no union at the Ajalpan plant. Two days later, the local media reported that Tarrant México had a collective agreement signed with a union affiliated with the Federación Revolucionaria de Obreros y Campesinos (FROC), in turn affiliated with the CROC. On September 25^th, the President of the JLCA told SUITTAR representatives that workers at Tarrant México were represented by the CTM-affiliated Sindicato Nacional de la Industria de la Confección, Similares y Conexos "Belisario Dominguez", and that this union had signed a collective contract with Tarrant on June 4, 2002. However, soon afterwards, workers learned through the local media that according to the Secretary General of the JLCA they were represented by the Sindicato Juvenil de Trabajadores y Empleados de la Industria Textil en General con sus Derivados, Corte, Confección, Bordados y Similares de la República Mexicana (SJT). It later turned out that in fact it was the SJT that had signed a collective contract with Tarrant México on June 4, 2002. The submitters say that workers in the plant seem to have been unaware of this, that no union dues were ever deducted from their pay, and that workers were unable to obtain a copy of the collective contract from the SJT despite having directly requested it. The submitters argue that the SJT did not represent the interests of workers in the plant.

3.1.2  Minimum Employment Standards

3.1.2.a  Matamoros Garment

The communication raises five minimum employment standards issues:  (1) timely payment of wages; (2) payment of minimum wages; (3) involuntary overtime; (4) compliance with legal requirements for initiating layoffs; and (5) severance payments on layoff.

Timely Payment of Wages

The timeliness of wage payments was a recurring issue at Matamoros Garment. Workers had earlier staged a work stoppage in November 2000 demanding the payment of two weeks' back wages.

In October 2002, problems started for employees who had opted for direct bank deposits to pay their wages. On October 25^th, wages were not deposited in employees' bank accounts. Deposits only became available the following Tuesday, on October 29^th. Moreover, as workers soon realized, the deposits amounted to only 50% of their wages. The remainder would only be paid on January 14, 2003, following a work stoppage.

Again, on November 1^st, the employer failed to deposit wages into workers' bank accounts on time. In the first week of December, no employees were paid for their week's work. Some workers were only paid half of their wages for the week of December 16-20, 2002. Workers receiving direct deposits again did not receive them on December 20, 2002. Then workers were not paid for the weeks of December 23 and 30, 2002.

The failure to make wage payments was one of the main reasons motivating the strike of January 13, 2003. The next day, workers did receive their three weeks' back pay in the form of backdated deposit slips or cash payments. These back payments were handed out at the plant by the SFV and witnessed by JLCA representatives.

As the submitters point out, the JLCA was thus aware that there had been more than two months of irregular pay at Matamoros Garment, including three weeks' work without pay.

Workers were again not paid for the week of March 10 to 17, 2003. On March 17, 2003, Matamoros Garment told its workers that the plant would be closing, and that they should pick up their last paycheques on March 20^th. That day, management informed the workers that their cheques were not available, and that they should return on March 24^th to pick them up. On March 18^th, SITEMAG wrote a letter to the President of the Municipal Office of Izúcar de Matamoros, Profesor Melitón Lozano Pérez, claiming unpaid wages and occupational safety and health (OSH) violations at Matamoros Garment. Workers were asking Profesor Lozano's support for the workers in their efforts to resolve these issues.

On March 24, 2003, a group of 59 workers filed a claim against Matamoros Garment with the State of Puebla Attorney General's Office for theft of wages in connection with the failure to pay all the workers their legally entitled wages. Later on that day, the employer gave workers backdated cheques paying them for the weeks of March 10 to 16, and March 17 to 24. Again, these payments were overseen by the JLCA.

The submitters said in their original submission that no action has been taken by these authorities regarding this lawsuit. However, they informed the Canadian NAO at the public meeting that no further action was expected on this matter because workers were in fact paid by the end of the day on March 24, 2003.

A letter from the Municipal Office to the U.S. Labor Exchange in the Americas Project (LEAP) dated March 25, 2003, confirms that municipal authorities were aware of the dispute at Matamoros Garment between the workers and the employer and of the complaints brought forward by workers regarding unpaid wages and poor working conditions. However, the letter also states that back wages owed to workers were paid the previous day, on March 24^th.

Failure to pay the minimum wage

When the payments for back wages were handed out on January 14, 2003, many workers were not paid the minimum wage of 52.10 pesos per day for sewers and seamstresses applicable at that time for Zone C (Puebla) factories. It is not clear from the pay stubs appended to the Communication whether the workers in question fell within those occupational categories. However, it appears that some workers were not even paid the lowest minimum wage of 40.30 pesos per day for general workers in Zone C, as some received a salary as low as 39.00 pesos for a ten-hour day. The Puebla JLCA witnessed these payments, and, the submitters say, knew or should have known that they were below minimum wage levels. At the public meeting, a worker told the Canadian NAO that she saw one of her co-workers ask the JLCA representative why she was being paid lower than what she should be paid for her professional group (professional seamstress) and he told her to see her personnel manager to fix this.

Involuntary Overtime

Workers were called in to work on November 20, 2002, which is national holiday in Mexico. The employer told the workers it would only be for a half day, but they were forced to stay until the evening.

The practice of exerting pressure on workers to stay past the usual closing time of 5:00 p.m., sometimes by not providing transportation before 7:00 p.m., was repeated on several occasions during November and December 2002.

It is also alleged that on some occasions workers were forced to work on Sundays or late into the night. Witnesses said that managers kept workers late to meet production goals/quotas. Workers also complained that on several occasions they were locked in the factory.

The agreement reached between plant management and workers on January 21, 2003, listed steps to be followed when workers would be required to work overtime, including giving notice to workers at least one day ahead. In addition, workers would have the right to decide whether they wanted to work overtime. This was also intended to take care of the issue of being locked in the factory. However, the agreement did not resolve the lack of transportation issue.

It should be noted that the Communication contains contradictory evidence in regard to workers being locked in the factory. Some workers say in their statements that the doors of the plant were locked. Others say that doors were not locked but that guards from the company prevented employees from leaving. Others say that the gate of the compound was guarded or locked. Still others told the Canadian NAO that a way of coercing workers was for supervisors and managers to take the workers' attendance cards so they could not check out and claim the number of hours worked that day if they refused to stay past the regular hours. In addition, these workers could not punch in the next morning and managers would use this tactic to deduct a day or more from the wages of the workers who had refused to work overtime.

The difference between being locked in the factory and being prevented to leave or coerced is important. Being locked in the factory clearly imposes a greater degree of compulsion, and poses serious health and safety risks. On the other hand, under Mexican law, employers may insist that workers work overtime, on account of exceptional circumstances, up to three hours a day, no more than three times a week, for a maximum of nine hours of overtime per week.

Answers to questions from the Canadian NAO regarding these apparent contradictions in the information presented by the submitters did not resolve them.

Layoff Procedures

Mexican law requires that employers make an application to the relevant authorities, in this case the Puebla JLCA, in the case of a temporary or permanent plant closure for economic reasons. Such application must generally be made prior to initiating layoffs (these procedures are discussed in more detail in section 4 below). The submitters claim that workers had no notice of any such procedures or their outcome. Even though the

Puebla JLCA supervised the distribution of the last pay cheques to workers on March 24, 2003, the submitters say that the JLCA itself admitted that Matamoros Garment never filed such an application.

Severance Payments on Layoff

Following the closure of the Matamoros Garment plant on March 24, 2003, workers received 50% of their regular salary for the next 6 weeks. This amount is considerably less than what workers are entitled to under Mexican law upon the permanent closure of a plant. The submitters point out that the sewing machines were removed from the factory on the evening of March 25, 2003, and that the plant has never reopened. While the JLCA declared a temporary closure on March 24^th, and again on April 8^th, it has never taken steps to recognize that the plant is permanently closed and to ensure that workers receive the severance pay to which they are entitled upon a permanent plant closure.

3.1.2.b  Tarrant México

The Communication says that the following minimum employment standards breaches took place at Tarrant México:  (1) failure to make timely wage payments, (2) excessive overtime hours, (3) failure to follow legally required layoff procedures, and (4) failure to make the legally required severance payments upon the closure of the plant in February 2004.

Wages and hours of work

In May 2003, Levi Strauss & Company (Levi's), one of Tarrant' clients, audited the plant and identified violations including non payment of proper overtime wages and excessive overtime hours. However, on a follow-up visit in June 2003, Levi's auditors confirmed that workers had received back wages owed to them, an unsatisfactory manager had been replaced, and employees were no longer working excessive overtime.

During their work stoppage of June 10-12, 2003, workers sought, among other things, payment of profit-sharing benefits for 2000 and 2001, payment of proper overtime wages, and a commitment from plant management to abide by an 8-hour work day and to respect legal holidays.

These demands were presented to the JLC of Tehuacán on June 12, 2003 and again on July 8, 2003 when the workers' coalition sought the JLC's assistance in conciliating an agreement with the company. As noted above, workers were not satisfied with the agreement signed on July 8^th and eventually sought to deal with issues of wages, hours of work and overtime by forming a new independent union. They also contacted the President and the Secretary General of the JLCA, the U.S. Embassy's Labor Attaché in Mexico City, the State Governor of Puebla and the Secretary of the STPS to voice their complaints. However no formal complaint regarding hours of work, wage payment or overtime was ever filed.

Layoff procedures

As explained above, companies must obtain an authorization prior to closing, temporarily or permanently, and laying off workers. The Ajalpan plant closed every Monday in July and August 2003, and many times, on Mondays again, from October 2003 to January 2004, due to, according to the company, lack of work. Furthermore, approximately 730 workers were laid off between August and December 2003.

The submitters say that the factory did not follow due process or receive any authorization from the JLCA before suspending employees for economic reasons.

With respect to the permanent closure, the plant announced the closure officially on February 3, 2004, which was publicly confirmed by the president of the JLCA two days later.

Severance payments

Regarding the employees dismissed from August to December 2003, it appears that most of them opted for severance payments rather than demanding reinstatement, even though the submitters allege that workers agreed to settle for a severance that was only 60%-65% of what they were legally entitled to.

As for the plant closure, the submitters say that the President of the JLCA confirmed in a radio interview that, on February 5, 2004, the factory had closed down and stated that workers would receive 75% of their legally-entitled severance pay.

3.1.3  Occupational Health and Safety

3.1.3.a  Matamoros Garment

The Communication describes a series of occupational safety and health (OSH) problems at Matamoros Garment. Complaints include verbal and physical abuse by supervisors of workers, lack of protective equipment and first aid supplies, an unsanitary cafeteria, lack of drinking water, and unsanitary rest rooms. Compulsory overtime also posed a safety issue for female workers having to travel long distances late at night. Finally, as noted above, the Communication contains allegations that workers were at times locked in the factory until production targets were met, though the various statements on this point appear to be at odds with each other.

The Communication provides particulars with respect to some of these matters. Protective gear was unavailable and sewing machines were not well maintained. On March 6, 2003, a sewing machine needle punctured a worker's finger. When this employee sought medical treatment, she discovered that there was no first aid kit and no medical staff to help her.

In August 2002, there was flooding in an adjacent agricultural field causing water to seep into the plant's cafeteria, which created a large, deep and mouldy puddle on the dirt floor. Because of these unsanitary conditions, the cafeteria remained inaccessible to the employees for several weeks. Workers were not happy with the quality of the cafeteria's food which they found unsanitary and rotten at times.

During the work stoppage of January 13, 2003, workers presented a list of their grievances, including occupational safety and health issues, to a representative of the JLCA. However, their list of demands included only the unhealthy cafeteria and the verbal abuse issues. On January 21^st, workers and their employer signed an agreement that stated that the parties could not come to an agreement on the issue of verbal abuse and that the cafeteria issue had been resolved.

Submitters also say that workers could not recall any occupational health and safety inspections by government inspectors having taken place at Matamoros Garment.

No formal complaint was filed with Mexican authorities regarding any of the OSH issues. However, while not an official complaint, SITEMAG made Matamoros municipal authorities aware, in a letter dated March 18, 2003, as noted above, of alleged OSH violations such as no drinking water provided to workers for more than two days, lack of safety and first aid kits, and harassment on the part of managers and the established union.

3.1.3.b  Tarrant México

The work stoppage of June 10-12, 2003, was also about occupational safety and health conditions at the Ajalpan plant. Specifically, the workers demanded better medical services at the plant, an end to verbal and sexual harassment by supervisors, and one hour for lunch. They also complained about excessive work load, which they claimed was the cause of accidents and injuries, and asked for a lowering of the quotas of production expected from workers.

At the Canadian NAO public meeting, witnesses said that the plant was very hot and the ventilation not sufficient, so that workers inhaled fabric fibers and vapors from the chemicals used in the bleaching of denims, and thus put their health at risk. Submitters testified that due to the exposure of workers to the toxic substances used in jeans laundering and the failure on the part of the employer to provide appropriate face masks, many workers suffered respiratory problems and sore throats. One former Tarrant worker said at the public meeting that he now has asthma and other respiratory problems because of his exposure to colorants used in the jeans manufacturing. But the workers could not provide medical evidence that they suffered such problems as a result of exposure to these chemicals.

Witnesses also said that there was not enough drinking water; that there were insufficient bathrooms; that the bathrooms were filthy; that workers did not have proper protective equipment, notably gloves for handling the chemicals used in the dying process of denims, and soap to wash off the chemicals; and that there were no medical staff on site.

On June 12, 2003, and again on July 8, 2003, workers presented these complaints to the JLCA through the coalition seeking to negotiate a resolution to their grievances with the employer. However, workers took no further steps to seek to enforce health and safety protections in the plant, even after it became clear that the July 8, 2003, settlement was not satisfactory to them. They did not notify the enforcement or inspection agencies mandated to ensure safe and healthy working conditions. At the American and Canadian public meetings, workers said that they sought to deal with health and safety issues by registering an independent union that would have allowed workers to collectively file complaints without the risk of retaliation against individuals. As at Matamoros Garment, workers said they could not recall any occupational health and safety inspection by government inspectors having taken place at Tarrant México.

3.1.4  The Reluctance of Workers to Seek the Assistance of Mexican Authorities

One point that struck the NAO during the review is the use by workers of both plants of strikes, work stoppages, protests and lobbying rather than the legal remedies at their disposal.

The submission shows that workers used a range of other means to demand respect for their rights and obtain recognition for their independent union, including making their demands known publicly and lobbying at the local, national and international level. At Matomoros Garment, SITEMAG wrote letters to the Governor of the State of Puebla, PUMA, a client company of the factory, and international solidarity organizations. Workers at Tarrant México staged many protests and held press conferences. They sent letters to international organizations and the Puebla Governor. They pursued a strong lobbying campaign by meeting with the state Governor, the U.S Embassy's Labor Attaché in Mexico, personnel at the Mexican consulate in Los Angeles, U.S., and representatives from the JLCA of Puebla, the STPS, and Levi's, a client company of Tarrant.

However, there are many issues that were mentioned in the submission or at the public meeting with respect to which the workers did not file an official complaint. The NAO asked workers a number of times why they did not file formal complaints with the proper authorities. They consistently answered that they did not trust the labour or other governmental authorities because they believed that the authorities were working in collusion with their employers and the unions established in their workplace. According to the workers, the denial of the registration petitions on technicalities, the lack of cooperation from labour authorities in helping independent unions to obtain legal recognition, and the passive role played by the JLCA when witnessing what submitters allege were violations of their rights, created this perception on their part.

The Mexican constitution and labour legislation seek to counter the unequal balance of power between employers and employees in their employment relationships. Mexican labour law offers a wide range of protection and remedies to workers. However, the effectiveness of such protections will inevitably be compromised if workers, rightly or wrongly, believe that it is pointless to avail themselves of these legal tools, whether it is because of lack of information or lack of trust.

3.1.5  Evidence of a Persistent Pattern

The submitters claim that the labour law violations that occurred at Tarrant México and Matamoros Garment are part of a persistent pattern of non-enforcement on the part of the Mexican government, and are the effects of systemic problems within Mexico's enforcement system.

In order to support this claim, the submitters make reference to a report by the Worker Rights Consortium (WRC) detailing events at another plant in the state of Puebla, Kukdong International México S.A. de C.V., and to issues raised in and review findings from previous public communications.

3.1.5.a  Kukdong International México

Kukdong International, an apparel factory located in Atlixco, Puebla, started operating in November 1999. Workers were only notified in May 2000 that they had been represented since December 1999 by a union affiliated with the Confederación Revolucionario de Obreros y Campesinos (CROC).

Following a boycott in December 2000, five leaders were laid off in January 2001. The workers responded with work stoppages to demand the reinstatement of these leaders. Protests continued for a few days until the police, on January 11, surrounded the facility and charged the protesters under the direction of CROC leaders, injuring many workers.

Following these incidents, many supporters of the fired leaders were themselves laid off and those who were taken back at the factory suffered harassment from the plant management.

On March 18, 2001, workers held an assembly to form their own union, the Sindicato de los Trabajadores de la Empresa Kukdong International México (SITEKIM). Twenty-eight workers signed the registration petition that was filed with the JLCA of Puebla on April 19, 2001.

On May 30, 2001, the company started signing certain SITEKIM petitioners to contracts as confidential employees. In addition, six workers later withdrew their names from the registration petition, on May 28^th, in front of the JLCA. It is alleged that the CROC pressured these workers and offered them money to convince them to desist from the registration petition.

On June 5, 2001, representatives of the JLCA went to the plant in order to verify that signatories of the petition were eligible workers and to ascertain their intention to join an independent union. It as alleged that the JLCA only gave one day's notice and that workers never received such notice. Three of the 28 signatories were absent that day and the JLCA concluded that they could not verify that these workers in fact still supported the establishment of SITEKIM.

On June 8, 2001, the JLCA denied the SITEKIM registration petition based on the evidence that it did not meet the minimum of 20 active workers as required under Article 364 of the LFT. SITEKIM filed an indirect amparo action in June 2001, challenging the decision of the Puebla JLCA to deny the union registration. On September 3^rd, the Sixth district Court dismissed the case because those filing the indirect amparo had abandoned the appeal for constitutional guarantees.

During that period, Kukdong International became Mexmode. The workers of Mexmode organized another independent union, the Sindicato Independiente de Trabajadores de la Empresa Mexmode (SITEMEX), to which union registration was granted by the JLCA of Puebla on September 17, 2001. The Mexican NAO explained that two different applications for union registration at two different companies (different legal entities) were involved. The NAO pointed out that there were two different and separate legal proceeding and thus the JLCA did not reverse its original decision of denying registration to SITEKIM.

The submitters use this case to show that, as they claim happened at Tarrant México and Matamoros Garment, the established union failed to represent the workers and engaged in a pattern of threats and coercion against the workers who did not support it. In addition, they allege that the government did not enforce its law with respect to minimum wages.

The Worker Rights Consortium (WRC) conducted an extensive field investigation of alleged violations of labour rights at Kukdong International following complaints from the workers. It issued an interim report on January 24, 2001, and its final report on June 20, 2001. The panel of seven experts concluded that:

• the CROC-affiliated union did not have the support of a majority of Kukdong workers when the collective contract with the employer was signed;
  
• the incumbent union has not performed the most basic functions expected of a legitimate collective bargaining representative. To the contrary, the CROC has engaged in a pattern of threats and coercion against workers who did not support the established union;
  
• after the work stoppage that ended on January 11, 2001, agents of Kukdong and the CROC coercively required many workers to sign pledges of loyalty to the CROC as a precondition to their reinstatement;
  
• the company and the CROC-affiliated union coercively induced some workers to sign letters of resignation, and have subjected those reinstated to penalties;
  
• Kukdong supervisors and security personnel committed acts of physical violence and verbal abuse against workers;
  
• the wages paid by the company to some garment sewers were below the legal minimum professional wage for that group; and
  
• the company occasionally failed to provide potable drinking water and clean bathroom facilities with running water.

3.1.5.b  Previous Public Communications

The submitters make reference to five previous public communications that were accepted for review and led to Ministerial Consultations. This section outlines the issues and findings from these public communications that are relevant to those raised in CAN 2003-1.

US 94-03
Following its review of Public Communication US 94-03, the US NAO found that workers did not have access to their collective agreement nor to their union by-laws. The established union at the plant in question was a CTM affiliate. Workers sought to challenge the current leadership of their union to obtain more democratic representation and to criticize the collaboration that they saw between management of the company and CTM leaders.

A union delegate election was called and the submitters allege that a campaign of intimidation by the company and the CTM, before and after the election, was directed at workers organizing an alternate dissident slate of delegates, including threats of being fired, demotions and dismissals.

The NAO found plausible the allegations that workers were dismissed for their participation in union organizing activities. Management and the incumbent union pressured and intimidated workers into signing "voluntary resignations" so as not to risk losing their severance and/or to avoid being blacklisted. The NAO concluded that the economic realities facing these workers make it very difficult for them to seek redress from Mexican authorities for violations of their rights.

Following their unsuccessful union delegate election campaign, the dissident workers tried to establish their own independent union and filed a registration petition with the JLCA in Ciudad Victoria, in the state of Tamaulipas. The petition was denied and the NAO concluded that the reasons provided were mostly technicalities. The workers filed an appeal (amparo) to seek a reversal of the JLCA's denial decision, but the Federal District Court upheld the JLCA's decision. The NAO concluded that the submission raised serious questions concerning the workers' ability to obtain recognition of an independent union through the local labour board. It also added that a registration process thwarted by technicalities serves as a disincentive for engaging in union activity.

Finally, of concern to the NAO was the time consumed by these decisions, which had caused the interested workers irreparable harm in that many who signed the registration petition had been laid off and accepted their severance.

US 97-02
This case also raised issues about a lack of representation from the established union, an affiliate of the CROC. Workers complained about occupational health and safety (OSH) issues, profit-sharing and the absence of a company doctor on site at the plant. Many workers professed to be unaware of the existence of a union at the plant and maintained that they never had seen their collective bargaining agreement.

The submitters alleged that the company had initiated reprisals against workers for their organizing efforts, including harassment, threats, shift changes and dismissals. It was alleged that this was done in complicity with the established union at the plant.

Workers filed a demand for a representation vote with the JLCA. Submitters claimed that there were many irregularities in the conduct of the eventual vote. While workers were waiting for the validation of the results of the vote that the established union lost, four supporters of the new union (STIMAHCS) were fired.

In its findings, the US NAO found that serious questions had been raised as to the legal decisions of the JLCA of Tijuana, irregularities in the conduct of the first representation vote, the delay in informing the parties of its decisions and the rationale for not certifying the first representation election. In addition, the NAO found that the JLCA has applied inconsistent and imprecise criteria and standards for union registration and for determining union representation.

With respect to OSH, the review concluded that there had been numerous "violations and omissions of minimum safety and health standards". Even though there had been many inspections and substantial fines had been assessed against the company, the NAO was unable to ascertain that they were collected. A major concern to the US NAO was regarding the effectiveness of the inspection and sanction process. It concluded by stating that the "deterrent effect of inspections and financial penalties is lost if they are not enforced".

US 97-03
This submission raised issues similar to the previous one. Workers tried to organize a union to address problems of workplace health and safety as well as economic issues. According to the submitters, once the union organizing effort began, workers faced retaliation from the employer and the established union such as threats of dismissals, surveillance, increases in the workload of selected employees and other forms of harassment. About 50 supporters of the independent union were laid off. Workers sought a vote to determine the most representative union. The Public Communication raised concerns about the fairness of the vote and the conduct of the ensuing hearing on objections to it raised by the independent union. The review of the Public Communication raised questions about the impartiality of the federal labour board (JFCA) and the fairness of its proceedings and decisions, particularly when viewed in the context of the composition of labour boards and the interest of the CTM in the outcome of the proceedings before the tribunal.

The main issues relating to OSH were exposure to toxic substances and the lack of adequate personal protective equipment. The review concluded that the plant suffered serious health and safety deficiencies, that the fines imposed by inspectors were minimal and that the NAO was unable to verify whether they were collected. The NAO concluded that this submission raised serious questions as to the efficacy of the inspections themselves.

CAN 98-1
The events reported in this public communication related to the same plant as did Public Communication US 97-03. This communication was presented to the Canadian NAO four months later than the American one. The issues reported were essentially the same but CAN 98-1 also raised additional issues of lack of responsiveness on the part of the established union, low wages, abusive supervisors and sexual harassment.

The Canadian NAO found that union by-laws and the collective contract were not disseminated to the workers. It found coercive conduct on the part of the established union and the employer, including intimidation and dismissals.

The NAO also had concerns about the government of Mexico ensuring the impartiality and independence of labour boards in relation to the selection procedures of representatives who serve on these boards. It concluded that it was uncertain that provisions of the LFT could ensure that labour boards are impartial and independent.

The information obtained during the review also raised concerns about the effective application by labour boards of provisions of the LFT designed to ensure procedural protection and timely decisions. It was concluded that unnecessary delays may put one party at a disadvantage, compromising the efficacy of the procedural protection provided for under the NAALC.

The OSH issues raised by the submitters were the lack of adequate protective equipment, exposure to hazardous substances and noise, little or no training of workers and no proper medical examinations. The joint OSH committee was operational but not all workers were aware of it. Of concern to the NAO were the adequacy of dissemination of information to workers and of protective equipment, and the efficacy of inspections when advance notice is given to the employer. It also raised the issue of whether fines are effectively collected.

US 99-01
This public communication was related to the efforts of flight attendants to join a craft union when a company-wide collective contract was already in place. The submitters asserted that workers supporting the craft union were subject to threats and intimidation prior to and during the representation election, by both the employer and the incumbent union. They also claimed that afterwards, some workers were fired for having participated in the union organizing campaign. The US NAO concluded that "the timing of the dismissals, the particular workers dismissed, and the lack of notification of the basis for the dismissals have the appearance of being related to the workers' union representation votes".

The US NAO found that there was credible evidence of the non payment of overtime and the health and safety hazards alleged by the submitters.

The events surrounding a representation election and the proceedings that ensued raised concerns with respect to irregularities in the conduct of the representation election allowed by the labour board, and the hearing on the craft union's objections to the election. The US NAO concluded that there was "substantive evidence to question whether the representation election process conducted […] was in conformity with Mexico's labor law and its obligations under the NAALC".

Of concern was also the issue of how the Mexican government assures that labour boards are impartial and independent and do not have a substantial interest in the outcome of a matter, particularly when labour board members ruling in a case are representatives of competing unions.

The US NAO stated that an issue raised by this submission was whether a craft union had any legal opportunity to seek representation of workers at a firm if there already was an existing company-wide agreement. The NAO added that "this issue is even more significant given the historical practice in Mexico of collective bargaining agreements being signed with employers at the inception of the company and routinely renewed". In this case, the Mexican legal precedent of not permitting the fragmentation of an existing contract limited the craft union's ability to represent potential members, depriving some workers the opportunity to join the union of their choice.

3.2  Information from Other Parties

Information was gathered from the Mexican NAO, Tarrant, clients of Matamoros Garment and Tarrant México, the Worker Rights Consortium, and the Canadian office of the United Steelworkers of America.

3.2.1  Mexican NAO

On July 30, 2004, the Canadian NAO engaged in consultations with its Mexican counterpart pursuant to Article 21 of the NAALC, sending a series of questions in writing on Mexican labour law, enforcement procedures, and their application in the specific cases of Matamoros Garment and Tarrant México. The Mexican NAO responded on October 22, 2004.

The Mexican NAO also forwarded to the Canadian NAO a copy of the answers that it provided to questions posed by the U.S. NAO in its review of Public Communication US 2003-01, which is substantially identical to CAN 2003-1. Those answers are clearly relevant to this review.

The Mexican NAO did not comment on the specific events that took place at either the Matamoros Garment or Tarrant México plants. Instead, it mainly provided information and clarification on Mexican labour law and its enforcement. This information is reflected in section 4, which discusses the relevant aspects of Mexican labour law.

The JLCA of Puebla has informed the Mexican NAO that it has granted 29 union registrations from 1999 to March 16, 2004, of which 35% were to unions independent of the major trade union federations.

On the question of whether there had been an election for union representation at Matamoros Garment and Tarrant México, the Mexican NAO answered that the free election of union representatives is a union right that is implemented internally within unions. The Government of Mexico is respectful of such union's internal affairs and therefore does not know whether elections for union representation were held within unions at the said plants.

The Mexican NAO also provided more specific information on actions taken by Mexican authorities in relation to events at Matamoros Garment and Tarrant México. The following subsections present this information.

3.2.1.a  Matamoros Garment

With respect to the JLCA's decision to deny SITEMAG's application for union registration, the Mexican NAO stated that the JLCA had indicated "that it was not able to grant registration to SITEMAG because the requirements of Article 366 of the LFT were not met".

Regarding the submitters disagreeing with the reasons provided by the labour board for denying SITEMAG's registration, the Mexican NAO said that "a union that disagrees with the registration denial may file an administrative appeal for review". The NAO added that SITEMAG did not file an indirect amparo action, even when this remedy was available to it to challenge the decision made by the authority.

The Mexican NAO informed the Canadian NAO that the Federal Inspection Directorate (DGIFT) conducted a special OSH inspection at Matamoros Garment on February 21, 2003, at which point it put in place technical measures to address various health and safety conditions in the workplace.

3.2.1.b  Tarrant México

The Mexican NAO explained that in June 2003, the JLC of Tehuacán summoned Tarrant México's legal representatives to address different labour problems and scheduled conciliation talks to be held on June 12, 2003. On that day, the workers sent to the company's representative a list of demands stating their disagreement regarding various irregularities that allegedly existed in the workplace.

By mutual agreement, the parties reviewed the list of demands and held conciliation talks on June 18 and 30, 2003. Based on those talks, on July 8^th, the workers and the company reached an agreement before the JLC of Tehuacán on the company's obligations and their compliance with regard to:  profit-sharing; respect for production work; non-aggression toward workers; fair and dignified treatment of female employees; "the right to eat [edible] food"; provision of efficient transportation services; the length of the workday; the manner in which employees work overtime; respect for compulsory days off; improved medical and health services; provision of containers with water; payment of wages at the company's automated banking machine; failure to make allocations for punctuality premiums, attendance and grocery bonuses; and the negotiating committee's non interference in the company's internal affairs.

With the signing of this agreement, the labour conflict was deemed concluded.

With respect to SUITTAR' appeal of the JLCA's decision to deny the union registration petition, the Third District Court in Puebla proceeded to dismiss the action for amparo. In accordance with the Ley de Amparo, dismissal is appropriate when the injured party expressly abandons the action.

Regarding the reinstatement of dismissed workers, the Puebla JLCA received and recorded the request of six workers in August 2003. The interested parties were notified regarding the convening of a conciliation hearing but the hearing was eventually suspended at the request of the parties as mutually agreed for purposes of a settlement. Between October and November 2003, the company and the workers reached agreements "fully satisfying the workers' demands for benefits found in their initial complaint petition", and the filing in the case was abandoned. As a result, the Board ordered that the case be set aside and considered closed as it lacked the legal grounds on which to proceed.

Twenty-five other individual complaints were filed before the Puebla JLCA alleging wrongful dismissal. At the time its response was provided, the NAO said that fifteen cases had been settled or dismissed, while the remaining nine cases were still under consideration.

The DGIFT informed the Mexican NAO that it had conducted five inspections in 2003 at Tarrant México:  three initial inspections to give the company the authorization to start its operations; one special inspection about OSH; and another special inspection about profit-sharing.

3.2.2  Matamoros Garment

The Canadian NAO sent the director of the plant and his business partner an invitation to attend or to present a written submission at the Canadian public meeting, which was held on May 28, 2004. A letter requesting consultations was also sent to both individuals on August 23^rd. The NAO has not received any response in either case.

However, the submitters provided the NAO with an exchange of correspondence between the plant director and a representative of the CAT between March 19 and May 26, 2003. It appears from this correspondence that Matamoros Garment was in serious financial difficulties due to that fact that its major client had declared bankruptcy while owing significant amounts to Matamoros. Workers were not paid on March 20, 2003, as reported by the submitters, because of credit problems at Matamoros Garment. This was not the first time that Matamoros Garment had encountered serious financial problems. In August 2002, the Mexican Social Security Department (IMSS) seized 300 machines from the plant as security for moneys owing in respect of social security contributions. The director also said that eight different government agencies had conducted inspections at Matamoros including three visits from the Immigration Department. He did not mention whether any of these inspections pertained to the application of labour laws.

3.2.3  Sindicato Francisco Villa

The Canadian NAO sent a list of questions to the Secretary General of the SFV, to which he answered in a conference call on August 19, 2004.

The Secretary General did not agree with the version of the facts as presented by the submitters. He said that SFV had done a lot to represent the workers and to improve their working conditions, especially in comparison with the previous union. He claimed that the previous management was very abusive of its workers. SFV fought for the workers' rights and eventually managed to get rid of the previous operators of the plant. The collective contract that SFV negotiated was available to all workers at Matamoros Garment.

According to the Secretary General, the SITEMAG constituting assembly never took place. The signatures on the petition for registration of SITEMAG were obtained by fraud. The sheet that workers signed was in fact a petition to claim unpaid wages. These signatures were then taken by an organizer of the independent union and attached to the registration petition. The majority of workers in fact preferred to keep the incumbent union.

The Secretary General agreed with the JLCA's decision to deny SITEMAG's registration, because there was no constituting assembly. Nonetheless, he admitted that the local government authorities had made mistakes, but did not give any further details.

3.2.4  PUMA AG

Two companies outsourcing to Matamoros Garment as a production facility were mentioned in the submission:  Angelica Corporation and PUMA AG. These companies were invited to attend the Canadian public meeting and to present, in person or in writing, any additional information relevant to the allegations made in the submission. Only PUMA responded, by sending a letter, on May 26, 2004, with attached documents. The submitters also provided the NAO with correspondence between PUMA and Matamoros Garment representatives during the course of events at Matamoros.

PUMA is a global company that markets and distributes sports footwear and apparel to an international market. PUMA is not a producer of these items and relies solely on contract production in approximately 28 countries to fulfill its production needs.

On July 29, 2002, PUMA and World Cat America (WCA), its sourcing agent, engaged in a contractual relationship with Matamoros Garment for the production of PUMA apparel. PUMA was only a minor customer of this factory.

The Matamoros plant was audited on September 11, 2002, to ensure that the factory complied with PUMA's social and environmental policies. The results of the audit, which covered working conditions and employee treatment, found the factory to be satisfactory. Specifically, the audit found that:  health and safety conditions in the plant were in accordance with international and company standards; no child labour was detected; and salary levels were above the required minimum wage.

PUMA notes that delays in wage payments occurred as a result of the factory's financial situation. In September 2002, Matamoros' largest client filed for bankruptcy and defaulted on payments for approximately 500,000 pieces already delivered. These problems resulted in considerable product delays for PUMA. Subsequent discussions with the factory owner and the sourcing agent confirmed that it would no longer be able to finish and deliver the required PUMA goods on time. It was then agreed that PUMA would stop placing new orders with Matamoros Garment because the factory's ongoing financial constraints jeopardized its ability to produce on time.

From the middle of October 2002 to January 2003, PUMA's sourcing agent made payments beyond its contractual obligations to Matamoros Garment to help the company cover its payroll costs. These outlays, which amounted to approximately $15,000 per week, were intended to help cover the labour costs associated with finishing the production of PUMA's products already in progress.

In January 2003, allegations brought forth by CAT, USAS and other international organizations of non-payment of wages, unhealthy working conditions, forced overtime and denial of freedom of association prompted PUMA to conduct an additional investigation of the facility. A PUMA representative visited the plant on January 18, 2003, and requested that all PUMA labels be removed from the plant.

On January 24, 2003, PUMA released a corporate statement reiterating that it had terminated its production contract with Matamoros Garment on October 8, 2002, due to the factory's financial difficulties, not because of the workers' demands or their efforts to form an independent union.

On February 2, 2003, PUMA's Global Head of Environmental and Social Affairs, a representative of WCA and a Mexican technician arrived in Puebla to investigate the situation at Matamoros and meet with workers, management and CAT representatives. Over the next two days, they interviewed 22 randomly selected workers.

On freedom of association, the interviews revealed that workers knew they were members of the SFV and said that they had freedom of association because they were allowed to join the SFV or any other union of their choice. However, PUMA claims that their representatives found out from interviewing the workers that the incumbent union was what is called a "yellow union", which means a management-sponsored organization with a conflict of interest.

On working conditions, workers:  denied that physical or verbal abuse occurred; categorically denied being forced, required or strongly encouraged to work overtime; and said that they were never locked in the factory. Although workers were paid up to one week late, they were paid their full wages and the payments were witnessed by the JLCA. The investigation confirmed that the cafeteria's problems stemmed from the flooding of a surrounding agricultural field, but PUMA's representatives were told that a professional contractor was hired by the company to construct proper flood prevention barriers to solve the problem. Furthermore, a cleaning crew used to sweep out the cafeteria prior to employees' lunch breaks on days where flooding did occur.

On February 12, 2003, PUMA indicated that it would consider re-establishing normal business relationships with Matamoros Garment. In a letter dated February 13, 2003, PUMA stated that "preliminary indications from the workers point to the fact that the current union is the union of choice; said union is supported by an overwhelming percentage of the factory's employees". It also recognized that although "payments were made below the appropriate classification of the respective workers, matters to correct this discrepancy have already been initiated".

One of the submitters, the CAT, disagreed with the conclusions of the fact-finding mission and released a public document, on February 19^th, rebutting most of its findings. They also criticized the conditions under which this investigation was conducted, saying that workers were not able to speak freely to their interviewers because they had been intimidated by company representatives, that workers did not have any assurance that their answers would be treated as confidential, and that in fact those interviews that were taped were handed to the factory management.

On February 25^th, WCA sent an official letter to the factory's owner mentioning that new orders would be placed once all financial and union-related problems were resolved, and on the condition that the factory would agree to independent monitoring. PUMA received a response on February 27^th stating that the plant director was not at that time in a position to become a partner of PUMA. On March 11th, PUMA tried to re-establish contact with Matamoros by offering its assistance and cooperation, but did not receive any response.

3.2.5  Tarrant Apparel Group (TAG)

Tarrant Apparel Group (TAG) was invited to attend the Canadian public meeting and to submit any evidence regarding events taking place at Tarrant México relevant to understanding the issues under review. Its Chief Financial Officer responded by letter dated June 1, 2004, stating that the submission was inaccurate and replete with unsubstantiated accusations regarding Tarrant México.

With respect to freedom of association, neither TAG nor Tarrant México had ever been involved in SUITTAR's proceedings before the JLCA. The factory did not prevent employees from lawfully expressing their association rights and workers were never penalized for their participation in any organization, SUITTAR or otherwise.

On the issue of working conditions and occupational health and safety, plant management always treated its employees fairly and in compliance with Mexican law. Continuous health and safety training was provided to employees as part of the plant's Safety and Health Program. Tarrant México also cooperated in inspections and investigations undertaken by the Mexican government and several U.S. customers and no issues arose from these various on-site inspections. In addition, following the agreement of July 8, 2003, the factory took the responsibility to ensure that the cafeteria was a clean and sanitary environment. Furthermore, labour disputes were fairly negotiated between management and elected employee representatives.

On August 12, 2004, the NAO sent a letter to consult with TAG regarding specific allegations and events mentioned in the submission. Due to a change in personnel, the new Chief Financial Officer was in no position to provide the NAO with additional information but reiterated that his company was not aware of any violations of Mexican labour law at the Tarrant México plant.

3.2.6  Levi Strauss & Company

Levi Strauss & Company (Levi's) was a client of TAG from June to October 2003. Prior to placing production at Tarrant México, Levi's conducted an assessment of the facility, in May 2003. The company identified as part of its review a number of violations of its ethical code of conduct, including non-payment of proper overtime wages and excessive overtime hours. Plant management agreed to address the issues that were identified. In June 2003, Levi's conducted a follow-up visit to the factory and confirmed that employees had received back wages owed to them, an unsatisfactory manager had been replaced, and employees were no longer working excessive overtime.

In July 2003, Tarrant advised that it wanted to terminate its business relationship with Levi's for business reasons. In August 2003, Levi's became aware of allegations regarding factory workers' right to freedom of association. It began to arrange for its own independent investigation and contacted the plant management and TAG to obtain the company's cooperation. Levi's then learned that the management of the factory had changed. On September 8, 2003, TAG informed Levi's that it would not be willing to cooperate in an investigation and confirmed that it would bring the business relationship with Levi's to an end. Tarrant México stopped producing for Levi's on October 12, 2003.

3.2.7  Tommy Hilfiger

Tommy Hilfiger sent a letter to Tarrant on September 9, 2003, informing Tarrant that it would terminate its relationship with TAG. It informed the NAO by letter dated May 26, 2004, that this termination was due to business and production considerations, not due to labour issues.

3.2.8  The Worker Rights Consortium

The Worker Rights Consortium (WRC) is a non-profit labour rights monitoring organization representing 121 colleges and universities in the United States that license their names and logos to apparel companies which then produce and sell clothing with these institutions' names. The WRC assesses conditions in the factories producing such apparel and provides information to the colleges, universities and the public about those conditions.

Following a complaint the WRC received from Tarrant México workers, WRC conducted fact gathering in Puebla from August 20 through 25, 2003. It interviewed 24 employees, some recently fired and some still working at the facility, the Secretary General of the JLCA and the attorney for Tarrant México, and reviewed relevant documentary records. The investigation focused on the allegations concerning illegal firings and related violations of associational rights.

The WRC report was released on September 15, 2003. It concludes that evidence identified to date was more than sufficient to warrant the conclusion that violations had occurred. WRC's report states that eight SUITTAR leaders were fired on July 16, 2003. It finds that the firings violated Mexican law concerning termination of employment and reasons and procedures under which such terminations can occur. The investigation revealed that Tarrant México did not try to justify the dismissals for economic reasons and no written notification or explanation was provided to any of these dismissed workers. The company offered severance payments in exchange for an agreement to resign voluntarily. Three leaders accepted this offer and the other five refused to resign.

Several workers still working at the plant at that time testified to WRC investigators that factory supervisors boasted that the dismissals were deserved punishment for the fired workers' union activities. Tarrant's attorney alleged that workers' misbehaviour was the justification for their dismissal. WRC claims that the justifications that were given would not have constituted grounds for dismissal or were not supported by any evidence.

The WRC came to the same conclusions regarding the firing of roughly 150 additional workers from August 5, 2003, to the time of the investigation. Tarrant México's official justification was an excess of production relative to demand and management's desire to trim the workforce. All workers still employed testified that managers and supervisors made statements to the effect that these dismissals were a punishment for, and were caused by, the workers' decision to form an independent union. These statements were made either to individual workers or in group meetings that workers were required to attend. Workers also testified that threats were made prior to these dismissals, specifically that workers who participated in the union assembly would be fired.

WRC also verified whether the dismissals were carried out in order of seniority. After reviewing employment records, they found out that Tarrant México did not follow this order. With respect to the procedures that a business must follow if it wishes to suspend workers for economic reasons, the JLCA confirmed that Tarrant neither requested nor received such approval.

Another finding was that none of the employees interviewed had ever heard of a union or a collective agreement at Tarrant México "until recent comments made by the FROC-CROC in the midst of the current labour dispute". In addition, workers' pay receipts confirmed that no union dues had ever been deducted.

Finally, the report adds that such dismissals have a severe chilling effect on the entire workforce, sending a clear message that workers who exercise their associational rights are jeopardizing their jobs and the well-being of their families.

3.2.9  The United Steelworkers of America

The United Steelworkers of America (USWA) presented a written submission and oral testimony at the Canadian public hearing of May 28, 2004. USWA was the lead organization among those that submitted Public Communication CAN 98-1 to the Canadian NAO.

The USWA did not seek to provide new evidence on the case under review, except to note that "it has been estimated that 80% of the collective agreements in Mexico are signed without the knowledge or support of the workers covered by that agreement". In support of this figure, the USWA cited an article by Dan La Botz and Robin Alexander entitled Mexico's Labor Law Reform.¹

The main point of the USWA was to emphasize that, in their view, the current Public Communication is proof that there exists in Mexico a persistent pattern of non-enforcement by the Mexican government of core labour rights and non-respect of its obligations under the NAALC. The USWA argued that the same problems that were identified eight years ago persist. They called into question the efficacy of the NAALC as an instrument for addressing labour standards issues in the territory of the Parties. The USWA submission summarizes the issues raised in CAN 98-1 and findings from the Canadian NAO's review. It draws a parallel between this previous public communication and the current one, and provides an overall evaluation of the results of CAN 98-1. Its main conclusion is that "there has been no progress on the issues identified in that public communication".

<< Review Process | Table of Contents | PDF Version | Mexican Labour Law >>

---

1

Alexander, Robert, and Dan La Botz. "Mexico's Labor Law Reform", Mexican Labor News and Analysis, vol. 8, no.4 (April 2003).

return