Labor Lawyer Basics

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THE

LABOR

LAWYER Volume 16 • Number 3Winter/Spring 2001

CONTENTS

EDITORIAL POLICY AND INFORMATION FOR A UTHORS ........................ ii

THE EDITOR’S P AGE ..................................................................... v Dana F. Proyect

NAFTA AND WORKER RIGHTS: A N A NALYSIS OF THE L ABOR SIDE A CCORD AFTER FIVE Y EARS OF OPERATION AND SUGGESTEDIMPROVEMENTS ........................................................................... 319

Barry LaSala

V OLUNTARY CORPORATE CODES OF CONDUCT: WHAT’S MISSING? ... .. . 349Owen E. Herrnstadt

BUILDING AN INTERNAL DEFENSE AGAINST CLASS A CTION L AWSUITS AND DISPARATE IMPACT CLAIMS .................................................... 371

G. Roger King and Jeffrey D. Winchester

IT’S COMMON, BUT IS IT RIGHT? THE COMMON L AW OF TRUSTS INERISA FIDUCIARY LITIGATION ...................................................... 391

Michael J. Collins

JOHN ROCKER AND EMPLOYEE DISCIPLINE FOR SPEECH ................... 439

Lewis Kurlantzick

A PPLYING THE SUPREME COURT’S A FFIRMATIVE DEFENSE TOSUPERVISOR H ARASSMENT ............................................................ 449

Cara Yates Crotty

2000 STUDENT WRITING COMPETITION WINNER: RETALIATORY H ARASSMENT AGAINST EMPLOYEES BY EMPLOYEES: SHOULD THEEMPLOYER BE LIABLE? ................................................................. 465

Kari Jahnke

INDEX TO V OLUME 16 ................................................................... 503

Section of Labor and Employment Law

American Bar Association

Copyright 2001 American Bar Association http://www.bna.com/bnabooks/ababna/laborlawyer/16.3.pdf


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EDITORIAL STATEMENT: The Labor Lawyer is a journal of ideas and developments inthe field of labor and employment law. Its objectives are to provide practitioners, judges,administrators, and the interested public with balanced discussions of developments in

all areas of labor and employment law. The Labor Lawyer is geared to the practical needsof those who work in this area and seek to share their insights and viewpoints. The Editorencourages discussion of the broader policy issues that underlie these developments. The

Labor Lawyer may be cited as follows, by volume and page: 16 L AB. L AW. (2001).

EDITORIAL GUIDELINES FOR A UTHORS: The Labor Lawyer welcomes contributionsfrom all interested persons. Articles should be submitted to Professor Robert J. Rabin,Editor, The Labor Lawyer, Syracuse University College of Law, E.I. White Hall,Syracuse, NY 13244-1030; phone: 315/443-3681; fax: 315/443-4141. In general, articlesshould be informal and direct. Endnotes should be confined to useful documentation.Only one copy, double-spaced, should be submitted. Endnotes must be double-spaced andplaced at the end of the article. In preparing both text and endnotes, authors should referto the following works for style: The Bluebook: A Uniform System of Citation (16th ed.)

(Harvard Law Review Association, Cambridge, Mass.), and for matters of literary stylenot covered by this manual, The Chicago Manual of Style (14th ed.) (The University of Chicago Press, Chicago, Ill.), or The Elements of Style by William Strunk, Jr., and E.B.White (3rd ed.). Absent appropriate disclosure in connection with the article submission,The Labor Lawyer will rely on the author’s belief that the article’s subject matter has notbeen preempted.

PERMISSIONS: Request to reproduce portions of this publication should be addressedto Director, Copyrights and Contracts, American Bar Association, 750 N. LakeShore Drive, Chicago, IL 60611; phone: 312/988-6101; fax: 312/988-6030; e-mail:[email protected].

DISCLAIMER: The material contained herein represents the opinions of the authorsand does not express the views or the positions of the American Bar Association or theSection of Labor and Employment Law, unless adopted pursuant to the bylaws of the

Association and the Section are so indicated.

2001 American Bar Association. All rights reserved. Printed in the United Statesof America. Produced by ABA Publishing.

SUBSCRIPTION PRICES: Any member of the American Bar Association may join theSection upon payment of its annual dues of $40.00, $10.00 of which is for a subscriptionto The Labor Lawyer. Law Student Division members of the American Bar Associationmay join the Section for $8.00 annual dues. Institutions and individuals not eligible for

Association membership may subscribe to The Labor Lawyer for $45.00 ($51.00 for Alaska,Hawaii, U.S. possessions, and foreign countries). Membership dues in the American Bar

Association are not deductible as charitable contributions for federal income tax purposes.

However, such dues may be deductible as a business expense.ORDER INFORMATION: Current issues of The Labor Lawyer may be obtained for $16.95

per copy, plus $3.95 for handling from the ABA Service Center, American Bar Association,541 N. Fairbanks Ct., Chicago, IL 60611, phone: 1/800-285-2221, fax: 312/988-5528,e-mail:[email protected]. Back issues published two years ago and earlier may be purchasedfrom William S. Hein & Co., Inc., 1285 Main Street, Buffalo, NY 14209, phone: 800/828-7571.

FREQUENCY , POSTAGE: The Labor Lawyer (ISSN: 8756-2995) is published three timesper year by the American Bar Association, Section of Labor and Employment Law. Third-class postage is paid at Chicago, Illinois, and additional mailing offices.

A DDRESS CHANGES: Send all address changes to The Labor Lawyer, ABA ServiceCenter, American Bar Association, 541 N. Fairbanks Ct., Chicago, IL 60611; phone:312/988-5522; fax: 312/988-5528, e-mail: [email protected].

INTERNET A CCESS: Visit The Labor Lawyer homepage at Syracuse University:www.law.syr.edu/labor_law; and our ABA Web site: www.abanet.org.

on acid-free paper.



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The Labor Lawyer A Journal of Ideas and Developments inLabor and Employment Law

EDITOR

Professor Robert J. RabinSyracuse University College of Law

Syracuse, New York 13244-1030

EDITORIAL BOARD

William L. Keller, Chair

Laurence E. Baccini Howard Lesnick

Michael H. Beck David M. Silberman

Allan L. Bioff Evan J. Spelfogel

Robert M. Dohrmann Marley S. Weiss

STUDENT EDITORIAL BOARD

2000–2001

Syracuse University College of Law

EDITOR-IN-CHIEF

Dana F. Proyect

ARTICLES EDITORS

Shelly Mui

Kathleen M. O’Brien

SENIOR ASSOCIATE EDITORS

Luke T. Cooper Courtland D. Rae

James C. De Francisco James A. Tacci

ASSOCIATE EDITORS

Nicolle M. Allen Mirlen A. Martinez Ruchi Thaker

Elizabeth Kazarinoff Marissa Ross Kevin Whittaker

Benjamin A. Scales



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v

The Editor’s Page

As the outgoing Student Editor-in-Chief, it is my pleasure to writethe editor’s page for this issue. The time I have spent working on The Labor Lawyer has been tremendously rewarding. First, there are sev-eral people I would like to thank for their help and support throughoutthis year. I thank Professor Rabin for giving me the opportunity to workwith him on this journal. His passion for labor and employment legalissues has inspired me to continue in this field. I thank my staff, es-pecially the Co-Articles Editors, Kathleen O’Brien and Shelly Mui, fortheir relentless editing and for enabling me to meet the publication

deadlines. I also thank my family for answering all of my grammaticalquestions.This 2001 Winter/Spring issue has a variety of articles ranging

from international labor relations to the background of ERISA, as wellas the winning article of the 2000 Student Writing Competition. I hopeyou enjoy reading these articles as much as I have.

The issue begins with an article by Barry LaSala discussing NAFTA’s side accord known as the North American Agreement on La-bor Cooperation (NAALC). This timely article criticizes the lack of en-

forcement of Mexico’s labor laws by the NAALC. The author suggestsan arbitration system to resolve these labor disputes.Owen E. Herrnstadt, Director of International Affairs at the In-

ternational Association of Machinists and Aerospace Workers, focuseson the problems of voluntary corporate codes of conduct. Although codesexist in many industries, critics believe that many codes are not in theworkers’ best interests because of fatal flaws within the codes. Mr.Herrnstadt illustrates such flaws and encourages corporations to adoptstronger codes to increase protection of their workers.

G. Roger King and Jeffrey D. Winchester’s article is an informativetool for employers on how to avoid class action lawsuits and disparateimpact claims. The article also discusses specific federal statutoryclaims that often give rise to class actions against employers.

The article by Michael J. Collins is an “all you need to know” pieceabout ERISA. The author provides a background on ERISA, its originfrom the common law of trusts, and how the common law of trustscontinues to impact the interpretation of ERISA.

Lewis Kurlantzick’s article focuses on Atlanta Braves’ pitcher John

Rocker’s inflammatory comments about New Yorkers in SPORTS ILLUS-TRATED. Professor Kurlantzick discusses whether Rocker was disci-plined for “just cause.” In addition, the article addresses the relevancyof federal civil rights laws as well as state statutes to such a situation.

Cara Yates Crotty writes about the effects of two Supreme Courtcases, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca



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Raton, which hold that employers may be liable for a hostile environ-ment created by an employee’s supervisor. The author discusses theemployer’s affirmative defense that it exercised reasonable care to pre-

vent and correct the harassment and that the employee failed to availherself of any preventive or corrective opportunities provided by theemployer.

Finally, I am happy to announce Kari Jahnke as the 2000 StudentWriting Competition winner. Ms. Jahnke explores the unsettled lawregarding employer liability for retaliatory harassment against em-ployees. She draws the conclusion that Title VII should protect victimsof discrimination as well as the subsequent retaliation that the victimsmay face as a result of filing a complaint.

I hope you enjoy this edition.

Dana F. Proyect,Editor-in-Chief

Editor’s Note: In our previous issue, Fall 2000, Vol. 16, Number 2,Merritt J. Green’s name was incorrectly stated on the cover and in theTable of Contents. We apologize for this error.



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NAFTA and Worker Rights: An Analysis of the Labor Side Accordafter Five Years of Operation andSuggested Improvements

Barry LaSala*

I. Introduction

In a campaign speech discussing his position on the North Amer-ican Free Trade Agreement (NAFTA)1 and his general philosophy ontrade, then-Arkansas governor and presidential candidate Bill Clintoncommitted the nation to the improvement of labor rights in Mexico.2

Mr. Clinton envisioned a trade policy for the twenty-first century thatwould maintain U.S. competitiveness3 and preserve the interests of workers, who inevitably and often times are adversely affected by freetrade.4

Following his election in 1992, President Clinton pursued his vi-sion by negotiating a side accord to NAFTA called the North American

Agreement on Labor Cooperation (NAALC).5 The NAALC is designedto address a myriad of worker rights issues among the NAFTA signa-tory nations. Two stated objectives of the NAALC are to “improve work-ing conditions and living standards in each Party’s territory”6 and to“promote compliance with, and effective enforcement by each Party of,its labor law.”7 To facilitate these objectives, the NAALC broadly defines

* J.D. Candidate, 2001, Georgetown University Law Center; M.A., International

Affairs, 1999, American University, School of International Service; B.S., Cum Laude,1994, Frostburg State University. This article is dedicated in loving memory of DorothyLaSala.

1. North American Free Trade Agreement Implementation Act, 19 U.S.C. § 3301 et seq. (1999).

2. William J. Clinton, Expanding Trade and Creating American Jobs: Remarksby Governor Bill Clinton at the North Carolina State University, Raleigh, NC, at 14 (Oct.4, 1992) (transcript available from the Democratic National Campaign Headquarters)(noting that a side accord to NAFTA should provide extensive powers to improve workerrights and offer dispute resolution).

3. Id. at 9 (noting that developing new markets for U.S. products will be criticalto the nation’s overall economic performance).

4. Id. at 15 (stating his concern about NAFTA’s impact on U.S. and Mexicanworkers).

5. Canada-Mexico-United States: North American Agreement on Labor Cooper-ation, Pub. L. No. 103-182, 107 Stat. 2057, 32 Int’l Legal Materials 1499 (1993) [herein-after NAALC].

6. 32 Int’l Legal Materials 1499, at art. 1(a).7. Id. at art. 1(f).



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labor law issues that fall within its scope8 and has instituted a complexadministrative structure to resolve disputes.9 This discussion is timelyin light of President Bush’s announced desire to expand NAFTA and

the ideological shift that his administration brings with regard to laborissues being negotiated in the context of a trade accord.Many commentators argue that the side accord has been successful

in addressing labor rights violations in Mexico, albeit to varying de-grees.10 This article argues that although Mexico has adequate laborstandards in place, it lacks appropriate mechanisms to enforce its laws,and the NAALC has failed to facilitate such enforcement. Conse-quently, substantive improvements in Mexican working conditionshave proven elusive. Since its commencement, the procedural operation

of the NAALC has continually denied adequate recourse for demon-strated labor abuses in Mexico. As a result, a new direction is needed.Section II of the article discusses the general structure and tech-

nical procedures established in the NAALC, which are designed to re-solve alleged labor law violations. Section III assesses the NAALC’sresponse to various complaints alleging labor law violations in Mex-ico.11 For selected submissions,12 the article will describe the parties

8. Id. at art. 49(1). “Labor law” is defined as:

laws and regulations, or provisions thereof, that are directly related to: (a) free-dom of association and protection of the right to organize; (b) the right to bargaincollectively; (c) the right to strike; (d) prohibition of forced labor; (e) labor pro-tections for children and young persons; (f) minimum employment standards,such as minimum wages and overtime pay, covering wage earners, including those not covered by collective agreements; (g) elimination of employment dis-crimination on the basis of grounds such as race, religion, age, sex, or othergrounds as determined by each Party’s domestic laws; (h) equal pay for menand women; (i) prevention of occupational injuries and illnesses; (j) compen-sation in cases of occupational injuries and illnesses; (k) protection of migrantworkers.

9. Id. at art. 21-42 (detailing dispute resolution procedures established in theNAALC including complaint filing, information gathering, consultation, and arbitration).

10. See generally Leonard Bierman & Rafael Gely, The North American Agreementon Labor Cooperation: A New Frontier in North American Labor Relations, 10 CONN. J.INT’L L. 533, 561-62 (1995) (citing Ian Robinson, The NAFTA Labour Accord in Canada:

Experience, Prospects and Alternatives, 10 CONN. J. INT’L L. 475, 489 (1995) (noting theNAALC’s significance as a trade-related document and its benefit of providing labor groupswith a mechanism to chastise their own governments for failure to reverse the erosion of the living standards of our trading partners)); Ronald W. Kleinman & Joel M. Shapiro,

NAFTA’s Proposed Tri-Lateral Commission on the Environment and Labor, 2 U.S.-MEX .L.J. 25, 34 (1994) (noting that the NAALC marks several departures from U.S. trade prac-tices in the past and that alone is a success); Juli Stensland, Note, Internationalizing the

North American Agreement on Labor Cooperation, 4 MINN. J. GLOBAL TRADE 141, 163(1995) (stating that the NAALC’s primary advantage is that it concentrates on the enforce-ment of existing labor standards rather than a unilateral imposition of standards).

11. At time of publication, eleven U.S. submissions alleging labor law violationshave been filed. One was withdrawn and three are still pending. (Information on file atthe Bureau of International Labor Affairs, U.S. Dep’t of Labor.)

12. U.S. Nat’l Admin. Office, U.S. Dep’t. of Labor, Pub. Report of Review of NAOSubmissions selected for analysis include: Submission No. 940001 (Oct. 12, 1994), Sub-



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NAFTA and Worker Rights 321

involved, the allegations made, the findings of the NAALC, its recom-mendations in response, and final resolution. Particular emphasis isplaced on determining if the allegations of the complainants were heard

in a timely and efficient manner and whether the final resolution re-sulted in the advancement of worker rights, which the NAALC purportsto address.

Section IV analyzes the overall effectiveness of the NAALC. Ithighlights Mexico’s inability to enforce its labor laws and illustratesthe NAALC’s inability to address this concern. In this regard, the ar-ticle specifically and categorically critiques each stage of the NAALCprocess. Section V proposes an arbitration system based on a commer-cial approach as an alternative to the dispute resolution system pre-

scribed by the NAALC. Arbitration will encourage fair, efficient, andtimely resolution of labor disputes in this and future trade pacts. Fur-thermore, arbitration is an appropriate way to account for cultural,legal, and historical differences between nations when dealing in thesensitive area of labor relations.13

II. Structure and Procedures of the NAALC

The NAALC consists of a Commission for Labor Cooperation,14

which is comprised of a Ministerial Council,15 Secretariat,16 and a Na-

tional Administrative Office (NAO) in each country.

17

The MinisterialCouncil, composed of cabinet level officials from the United States,

mission No. 940002 (Oct. 12, 1994), Submission No. 940003 (April 11, 1995), SubmissionNo. 9601 (Jan. 12, 1997), Submission No. 9701 (Jan. 12, 1998), and Submission No. 9702(Apr. 28, 1998). Submission No. 940004 was removed from consideration before finalresolution and will not be included in the analysis. Submission No. 9602, involving al-legations of violations of U.S. labor laws by a subsidiary of the Sprint Corporation op-erating in San Francisco, is beyond the scope of this article, which is focusing on the lackof enforcement of labor rights in Mexico. Submission No. 9703 resulted in an Agreementsigned by Secretary Herman of the United States and Secretary Palacios of Mexico re-garding issues on freedom of association and occupational safety and health. SubmissionNo. 9901 involves issues concerning freedom of association, minimum employment stan-dards, and occupational safety and health at Executive Air Transport, Inc. and is pending in the Public Report stage. Submission No. 2000-01 is the latest submission involving Custom Trim/Auto Trim and is pending in the preliminary stages of the NAALC process.(Available for review in the Public Reading Room, Bureau of International Labor Affairs,U.S. Dep’t of Labor.)

13. B ARRY E. C ARTER & PHILLIP R. TRIMBLE, INTERNATIONAL L AW 849 (Aspen, 2ded. 1995) (noting the longstanding principle of international law that a nation-state hasexclusive authority over its nationals).

14. NAALC, supra note 5, at art. 8(1). The Commission for Labor Cooperation isthe official title of the formal structure created under the NAALC.

15. Id. at art. 8(2). The Ministerial council consists of the highest ranking laborofficial, or their designee, in each participating country and meets once a year in regularsession. Id. at art. 9(1), 3(a).

16. Id. at art. 8(2). The Secretariat is headed by an Executive Director selected fora 3-year term and is comprised of a staff of 15 professionals. Id. at art. 12(1), (3).

17. Id. at art. 8(2) (describing the National Administrative Office structure);NAALC, supra note 5, at art. 15.



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Mexico, and Canada, oversees and directs all activities under theNAALC.18 The primary function of the Secretariat is to assist the Min-isterial Council in the execution of its functions and provide support

not specifically delineated that the Council might require.19

The NAO is the entity with which outside parties20 file complaintsalleging labor law abuses, thereby commencing the first stage of thedispute resolution process.21 After a complaint is filed, the NAO hasdiscretion to determine, within sixty days of receipt, if review is war-ranted.22 Generally, the NAO Secretary is directed to accept submis-sions for review when it appears the side accord has been violated.23

However, the Secretary may decline acceptance of submissions underseveral specific circumstances.24 If a submission is accepted for review,

the NAO may conduct additional examinations or investigations to de-

18. Id. at art. 10. One of the many functions of the Council is to:

(b) direct the work and activities of the Secretariat and of any committees orworking groups convened by the Council; . . . (d) approve the annual plan of activities and budget of the Commission; (e) approve for publication, subjectto such terms or conditions as it may impose, reports and studies prepared bythe Secretariat, independent experts or working groups; (f) facilitate Party-to-Party consultations, including through the exchange of information; (g) ad-dress questions and differences that may arise between the Parties regarding the interpretation or application of this Agreement; and (h) promote the col-lection and publication of comparable data on enforcement, labor standardsand labor market indicators.19. Id. at art. 13(1) (stating that the Secretariat has various other responsibilities

including the submission of a budget for the Commission’s activities, art. 13(2); and thepreparation of reports on various matters, art. 14(1)(a)-(d)).

20. See infra notes 56-104 and accompanying text (commonly, complaints are filedby U.S. based and international human rights organizations, labor organizations, andlawyer associations).

21. NAALC, supra note 5, at art. 16(3) (stating that “[e]ach NAO shall provide forthe submission and receipt, and periodically publish a list, of public communications onlabor law matters arising in the territory of another Party. Each NAO shall review suchmatters, as appropriate, in accordance with domestic procedures.” The NAOs also serveas a contact point for participating governments and as a disseminator of information.

Id. at art. 16(1),(2)).22. See Bureau of International Affairs; North American Agreement on Labor Co-

operation; Revised Notice of Establishment of U.S. National Administrative Office andProcedural Guidelines, 59 Fed. Reg. 16660, 16661 (Apr. 7, 1994) [hereinafter NAO Pro-cedural Guidelines] (explaining the standards and qualifications for the submission of acomplaint and the resolution process).

23. Id. at 16661 (stating that “[i]n general, the Secretary shall accept a submissionfor review if it raises issues relevant to labor law matters in the territory of another Partyand if a review would further the objectives of the Agreement”).

24. Id. at 16661-62 (stating that the complaint must be signed, dated, clearly statewho is filing the submission, and “sufficiently specific” so that the NAO knows what relief is being requested). Factual claims must allege a Party’s failure to enforce its domesticlabor laws and other responsibilities set out in Article II of the NAALC. Additionally, thecomplaint must “demonstrate” that relief has not been sought domestically for the par-ticular alleged activity. Lastly, the allegations in the submission can not be “substantiallysimilar” to allegations set forth in another submission unless “new” and “significant”information is available.



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velop a factual record.25 Typically, the NAO will conduct a public hear-ing to receive sworn testimony on the matter.26

Within four months27 of acceptance of the submission, the NAO

Secretary is required to issue a public report.28

If no violation is found,the decision stands as final. Following such a determination, furtherinquiry into the matter is limited to an independently initiated requestby one of the participating nations.29 If the NAO finds a violation andconcludes that the matter has not been adequately resolved since thecommencement of the proceedings, the NAO Secretary may requestMinisterial Consultations.30

Recourse beyond the level of Ministerial Consultations depends, inlarge part, on the nature of the violation and the NAO findings. 31 If the

violation deals with general labor rights issues,32

no further recourse

25. Id. at 16662 § H (noting that the purpose of the additional examination is toassist the NAO in ascertaining and understanding the issues raised).

26. Id. at 16662 §§ H(3)-H(6) (noting that in the examination process, unless in-appropriate, the NAO will conduct a public hearing on the submission; § H(4) directsthat notice of the hearing will be published thirty days in advance; § H(5) indicates thatany hearing conducted in connection with the examination shall be conducted in publicand in English; § H(6) states that the actual submission will become part of the hearing record). The NAO conducting the investigation may also request and receive informationfrom another nation’s NAO. See also NAALC, supra note 5, at art. 21 (stating that con-sultations may include discussions of the other Party’s labor laws, the administration of those laws, and relevant information regarding labor market conditions in the countrythat is the subject of the inquiry. Article 21(2)(a)-(c) of the NAALC indicate the types of information that may be exchanged in this process to include descriptions of laws, reg-ulations, procedures, proposed or pending changes to such laws or practices, and relatedexplanations or clarifications of the law).

27. Id. at 16662 § H(8) (allowing for an additional sixty days if circumstancesrequire it).

28. NAO Procedural Guidelines, 59 Fed. Reg., at 16662 § H(8) (determining that the report should include “a summary of the proceedings and any findings andrecommendations”).

29. See Laura O. Pomeroy, Note, The Labor Side Agreement Under NAFTA: Anal- ysis of its Failure to Include Strong Enforcement Provisions and Recommendations for Future Labor Agreements Negotiated with Developing Countries, 29 GEO. W ASH. J. INT’L& ECON. 769, 781-82 (1996) (citing Elizabeth C. Crandall, Comment, Will NAFTA’s North

American Agreement on Labor Cooperation Improve Enforcement of Mexico’s Labor Laws?, 7 TRANSNAT’L L AW. 165, 185 n.170 (1994) (explaining that at this and subsequentstages of the review process, only a participating government may request consultationsthat would continue the inquiry)).

30. NAO Procedural Guidelines, 59 Fed. Reg., at 16662 § I(1) (indicating that pro-cedurally, the NAO Secretary recommends that the U.S. Secretary of Labor request con-sultations at the Ministerial level as directed under Article 22 of the side accord. Article22(3) indicates that the ministers will exchange all public information that has beengathered on the matter and conduct a full examination in attempting to reach resolution.

A specific time frame for these activities is not established).31. See NAALC, supra note 5, at art. 23(2) (noting that the next phase of the pro-

cess, the establishment of an Evaluation Committee of Experts, shall be initiated toreview “patterns of practice by each Party in the enforcement of its occupational safetyand health or other technical labor standards”).

32. Id. at art. 49 (indicating that issues involving the freedom to associate, theright to collectively bargain, and the right to strike are not protected beyond ministerialconsultations).



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is available beyond Ministerial Consultations.33 If the violation per-tains to “occupational safety and health or other technical labor stan-dards,”34 and the matter remains unresolved following Ministerial

Consultations, an Evaluation Committee of Experts (ECE) may beestablished at the request of an involved party.35

Once convened, the ECE conducts its own review of the initial find-ings, and a draft report on the matter must be presented to the Councilwithin four months,36 with a final report issued within another sixtydays.37 If a nation remains unconvinced that the matter is adequatelyresolved, it may request additional consultations.38 If the consulting parties fail to resolve the dispute, a special session of the Council maybe convened.39 This phase is designed to apply pressure on the involved

parties to settle the dispute. If the dispute remains unresolved, theCouncil may convene an arbitration panel to facilitate final resolutionof the dispute.40 However, several factors significantly restrict the useof arbitration.41

33. Id.34. Id. at art. 23(2) (defining technical labor standards as “laws and regulations,

or specific provisions thereof, that are directly related to subparagraphs (d) through (k)of the definition of labor law”). Id. at art. 49. Sections (d) through (k) of the definition of labor law are found supra, note 8.

35. Id. (noting that the Council will establish an ECE if the issues at hand dealwith those described supra note 34 and if the matter to be reviewed is indeed trade relatedand is covered by a mutually recognized labor law). See also NAALC, supra note 5, atart. 27(1) (noting that at this point, only matters that deal with “enforcement of a Party’soccupational safety and health, child labor or minimum wage technical labor standards”may continue in the process).

36. Id. at art. 25 §§ 1(a)-1(c) (discussing the elements of the draft report, whichcontain “a comparative assessment of the matter,” conclusions that are drawn, and anyrecommendations to assist the parties in the final resolution of the dispute). The purposeof the draft report is to provide the countries with an opportunity to respond to findingsbefore a final report is made public.

37. Id. at art. 26 §§ 1-4 (directing that within thirty days of its submission to the

Council, the final report should be published, and within another ninety days, the partiesshould provide written responses to the recommendations made in the report, which willserve as a topic of discussion at the following regular Council meeting).

38. Id. at art. 27 (1) (indicating that parties are permitted to request additionalconsultations regarding persistent failure of one party to enforce its laws relating tooccupational safety and health, child labor or minimum wage technical labor standards).

39. Id. at art. 28(1)-(4)(b) (ordering, upon request, that the Council convene withintwenty days and make use of any dispute resolution procedures that may be appropriate).

40. Id. at art. 29(1)(a)-(b).41. NAALC, supra note 5, at art. 29(1) (establishing that the arbitration procedures

may be convened after a written request by one of the parties and a two-thirds vote of approval from the Council). As illustrated in other segments of the procedures, the ar-

bitration panel is designed exclusively to address a persistent failure to adequately en-force labor laws related to “occupational safety and health, child labor or minimum wagetechnical labor standards” and for issues that are trade-related and covered exclusivelyby mutually recognized labor laws. Additionally, a matter may only be subject to arbitra-tion if the violation of labor law is “(a) trade related; and (b) covered by mutually recog-nized labor laws.” Id. at art. 29(1).



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Theoretically, the arbitration panel is comprised of five members.Each disputing party selects two panelists, who are nationals of theopposing party.42 The panel is required to follow model rules estab-

lished by the Council which, inter alia, provide for at least one hearing before the panel.43 Unless the disputing parties agree otherwise, thepanel will present an initial report detailing its findings44 within sixmonths of its creation.45 A final report is issued directly to the dis-puting parties within sixty days of the initial report.46 Within fifteendays, the disputing parties are required to transmit the final reportto the Council.47 If a violation covered under the NAALC is found, theparties may agree upon and implement an action plan to resolve thedispute.48 If the disputing parties are unable to reach agreement on

an appropriate action plan, or there are questions as to whether theaction plan is being carried out, a party may call for the arbitrationpanel to reconvene.49 Once the arbitration panel has reconvened, itmay approve the agreed upon action plan, impose a new plan, or issuea monetary fine no greater than twenty million dollars.50 The agree-ment provides for additional recourse if the fine is not paid, whichincludes suspension of NAFTA benefits for a monetary amount not to

42. Id. at art. 32(1)-2(d) (ordering that the disputing parties shall attempt to agreeupon a chair of the panel. If the parties are unable to agree upon a chair, a party chosenby lot will select the chair. Additionally, if there are more than two parties involved, theselection process is modified by allowing the complained against party to select two pan-elists, one from each complaining party, and the complaining parties shall select twopanelists who are citizens of the party being complained against).

43. Id. at art. 33(1)(a)-(d) (noting that the an opportunity is also provided for thedisputing parties to make initial and rebuttal written submissions); see also id. at art.35 (stating that the panel may seek technical or expert advice from any source to assistin the deliberations if the disputing parties agree and will be subject to any limits orconditions with which the parties agree).

44. Id. at art. 36(5) (implying that the purpose of the initial report is to provide the

parties with time to evaluate and respond to the findings of the panel before their finaldeterminations are made).

45. NAALC, supra note 5, at art. 36(2)(a)-(d) (stating that the report should con-tain factual findings and a determination as to whether there has been a persistentpattern of failure by the complained against party to enforce its labor laws. If a positivedetermination is made, recommendations for the resolution of the dispute should alsobe included).

46. See id. at art. 37.47. Id. at art. 37(2).48. Id. at art. 38 (noting that any agreed upon action plan should be “mutually

satisfactory” and shall conform with previous determinations and recommendations of the panel).

49. Id. at art. 39 (declaring that a request for the arbitration panel to reconvenebecause of failure to reach agreement may only occur sixty days after the date of the finalreport. Additionally, a request for the panel to reconvene because a party is not certainthat the complained against party is fully implementing the action plan may not occuruntil 180 days after the action plan was adopted).

50. Id. at art. 39(4)(b).



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exceed the original assessment.51 At its most efficient level of opera-tion, this dispute resolution system can take well over two years be-fore final resolution.

III. Discussion of NAALC Submissions

It is not the concern of this article to elaborate on an entire fieldof scholarship discussing the specific circumstances surrounding com-plaints filed before the various NAOs.52 Rather, the objective is to sum-marize the pertinent claims in various complaints, describe the find-ings, and discuss the final resolution of each matter. This articleincludes analysis of a representative six submissions out of a total of eleven that have been filed to date. These submissions have been se-

lected as a representative group based on the diversity of issues raisedin the complaints and as a broad sampling of the various ways theNAALC operates in practice. The purpose of this sampling 53 is to de-termine if, after five years in practice, the NAALC has been effectivein redressing the non-enforcement of the labor standards it was de-signed to protect.54

51. NAALC, supra note 5, at art. 41.52. It should be noted that not a single complaint has advanced past the level of

Ministerial Consultations to establishment of an Evaluation Committee of Experts. Thisalso means that not a single complaint has been subjected to arbitration.

53. To date, there have been eleven U.S. Nat’l Admin. Office, U.S. Dep’t of Labor,submissions accepted for review alleging labor law violations in Mexico and one submis-sion accepted for review alleging labor law violations arising in the United States. Thesubmissions include: Submission No. 940001 (dealing with allegations related to freedomof association and the right to organize a union against the Mexican subsidiary of U.S.based Honeywell Corporation); Submission No. 940002 (alleging misconduct in the areasof freedom of association and the right to organize a union against the Mexicansubsidiaryof U.S. based General Electric Corporation); Submission No. 940003 (dealing with allegedviolations of freedom of association rights, the right to organize an independent union,and violation of minimum employment standards by the Mexican subsidiary of Sony

Corporation); Submission No. 9501 (dealing with alleged violations of freedom of asso-ciation and wrongful discharge by a subsidiary of Sprint Corporation); Submission No.9601 (dealing with issues of freedom of association and guarantees in the NAALC re-garding the maintenance of impartial labor tribunals against the actions of various agen-cies within the Mexican government); Submission No. 9602 (dealing with allegations thatMexico failed to protect workers from “brutal anti-union” tactics by Maxi-Switch Inc.);Submission No. 9701 (addressing allegations of illegal gender discrimination by variousemployers in Mexico’s Maquiladora exporting industry); Submission No. 9702 (address-ing allegations of violation of guarantees in Mexican law permitting freedom of associa-tion and violation of health and safety laws by Han Young de Mexico, S.A. de C.V. factory,which assembles truck parts for Hyundai Precision America, a subsidiary of the HyundaiCorporation of Korea); Submission No. 9703 (dealing with issues of freedom of association

and health and safety at ITAPSA, a subsidiary of Echlin Inc., a Connecticut based cor-poration which produces and distributes automobile replacement parts).

54. Because the focus of this article centers on Mexico’s inability to enforce its laborlaws and the NAALC’s inability to extricate the situation, the NAO complaint filedagainst a subsidiary of the Sprint Corporation operating near San Francisco, California,is beyond the scope of this article and will thus not be considered.



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On February 14, 1994, Submission No. 940001 was filed againstHoneywell Manufacturas de Chihuahua,55 and Submission No.94000256 was filed against a subsidiary of General Electric Corpora-

tion.57

The submission against the Honeywell subsidiary alleged thatworkers’ wages were significantly depressed, company representativesmade illegal threats of dismissal against workers involved in unionorganizing, and the company dismissed approximately twenty workersfor union activities.58 Submission No. 940002 alleged that the GeneralElectric subsidiary curtailed union organizing by thwarting informa-tion dissemination,59 unlawfully dismissing twenty workers for unionorganizing activities,60 and violating several health and safety regu-lations at the plant.61 The U.S. NAO accepted the submissions for re-

view on April 15, 1994, roughly sixty days after the initial filing.62

On October 12, 1994, a full eight months after the filing, the NAOissued a public report and made no findings regarding the substantiveallegations in either complaint.63 The NAO did suggest, with regard tothe Honeywell subsidiary case (No. 940001), that the timing of workerdismissals at the plant coincided with union organizing efforts.64 As aresult of this “coincidence” and the suspicion that the workers’ com-

55. See Submission No. 940001 & No. 940002 (noting that Honeywell Manufac-

turas operated an electronics manufacturing plant in the State of Chihuahua, Mexico)[Honeywell].

56. See id. at 2 (stating that the submission was filed by the United Electrical,Radio and Machine Workers of America) [UE].

57. Id. at 5. Specifically, the complaint was filed against Compania Armadora, S.A.operating in Ciudad Juarez, State of Chihuahua, Mexico.

58. Id. at 3. The complaint further alleged that the institutions in Mexico designedto provide adjudication of these matters, known as Conciliation and Arbitration Boards(CABs), have a reputation for not adequately protecting the interest of workers, andspecifically, for failing to reinstate workers who have been incorrectly terminated forsupporting independent unions.

59. Id. at 5. The complaint specifically alleges that the company’s activities in-

cluded, “altering the established practice of plant entry to prevent employee organizersfrom distributing campaign literature, [and] taking campaign literature from employees.”

60. Id. at 5-6. The complaint also alleges that the company pressured dismissedworkers into accepting severance benefits so that the workers could not challenge thedismissal in the future.

61. Submission No. 940001 & No. 940002 (stating that these allegations includefailure “to give light work to pregnant women” and “failing to provide adequate ventila-tion in work areas and suitable protective equipment, and failing to test properly em-ployees for exposure to chemicals”).

62. See id. at 7.63. See id. at 32 (concluding that the information available to the NAO did not

establish that the Government of Mexico had shown a failure to promote compliance with

its labor laws).64. Id. at 30-31. Additionally, “[t]he NAO acknowledges and understands” that

workers’ perceived or actual lack of access to legal remedies, accompanied by economiccircumstances which forced them into accepting severance pay-offs instead of challenging the actions of their supervisors, are impediments to the Mexican workers’ right to legalrecourse when their rights have been violated.



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plaints might be substantiated, the NAO recommended public infor-mation exchange and other cooperative programs between the signa-tory nations to discuss the matters raised in the report and to foster a

better understanding of each nation’s labor laws.65

However, the NAOdid not recommend additional recourse for the dismissed and threat-ened workers.66

On August 16, 1994, Submission No. 940003 was filed againstMagneticos de Mexico (MDM), a subsidiary of Sony Corporation.67 Thecomplaint alleged violations of Mexican labor laws regarding workhours and freedom of association, including an allegation that the com-pany fired workers due to their union activities.68 The U.S. NAO ac-cepted the submission for review on October 13, 1994, and issued a

public report of its findings on April 11, 1995, a full six months aftersubmission.69 The NAO, employing the same analysis as in its first twosubmissions, focused its inquiry on whether Mexico adequately en-forced its labor laws, rather than evaluating whether a particular com-pany violated those laws.70 However, the NAO made strong statements

65. See id. at 31.66. Id. The decision not to recommend Ministerial Consultations was based in part

on the fact that the submissions did not establish that the Government of Mexico wasfailing to adequately enforce its labor laws. Submission No. 940001 & No. 940002, at 30.See also Jason S. Bazar, Comment, Is the North American Agreement on Labor Cooper-ation Working for Workers’ Rights?, 25 C AL. W. INT’L L.J. 425, 444 (1995) (citing Submis-sion No. 940001 & No. 940002) (noting that the focus of the investigation of the NAO wascentered on whether Mexico was enforcing its labor laws, not the potential unlawfulconduct of the companies, and that the NAO was by no means a substitute for Mexico’sdomestic system for resolution of these disputes)).

67. Submission No. 940003, at 3 (noting that the Sony subsidiary was operating inNuevo Laredo, Tamaulipas, Mexico); see id. at 2-3 (indicating that the submitters in-cluded the International Labor Rights Education and Research Fund (ILRERF), the As-sociación Nacional de Abogados Democráticos (National Association of Democratic Law-yers), the Coalition for Justice in the Maquiladoras, and the American Friends ServiceCommittee (AFSC)).

68. See id. at 3-6 (stating that in the area of freedom of association and the right toorganize, submitters alleged that Magneticos and the government supported union at theplant interfered with the general affairs of the independent union and with the union’sdelegate election. It also alleged that: a worker critical of the current union was suspended;intimidation of the workers attempting to create the independent union including demo-tions, threats of firing for union activities, and firing workers without cause was common;and, the delegate election of the independent union was conducted unfairly and underconditions of harassment. In this regard, it is alleged that workers were misled, intimi-dated, threatened, fired, forced into resignation, and coerced prior to, during, and after theelection. It is also alleged that Magneticos was directly involved with the police in a violentsuppression of a demonstration following the vote. Finally, the complaint alleged that theMexican government intentionally attempted to thwart the organizing effort through itsadministrative agencies that have jurisdiction over labor-management issues).

69. Id. at 7.70. See id. at 25. The NAO stated:

[T]he NAO review has not been aimed at determining whether or not thecompany named in the submission may have acted in violation of Mexicanlabor law. Rather, the purpose of the NAO review process, including the public



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regarding several of the allegations.71 With regard to allegations thatworkers were improperly dismissed, the NAO found,

Considering the duration of employment of the dismissed workers

with MDM (ranging from four to fifteen years), their documented as-sociation with the opposition union movement, and the circumstancesof their separation, it appears plausible that the workers’ dischargesoccurred for the causes alleged, namely for participation in union or-ganizing activities. The timing of these dismissals coincides with . . .an organizing drive by an independent union at the MDM plants, andthe economic realities facing these Mexican workers make it verydifficult to seek redress from the proper Mexican authorities for vio-lations of Mexican labor law.72

In the area of union elections, the NAO found “considerable testi-

monial evidence” confirming allegations of irregularities in the unionelection.73 The NAO labeled allegations of violence against workers“disturbing”74 and discovered serious deficiencies in the union registra-tion system.75 As a result of these findings, the NAO recommendedMinisterial Consultations.76 The Ministerial Consultations resulted inan “Agreement on Implementation” signed by the Labor Ministers onJune 26, 1995.77 On May 10, 1996, twenty-one months after the initialfiling, the Mexican and U.S. NAOs announced that the agreement re-

hearing, was to gather as much information as possible to allow the NAO tobetter understand and publicly report on the government of Mexico’s fulfill-ment of its obligations as set out in Article 3 of the NAALC.71. See id. at 24-32.72. See Submission No 940003, at 27.73. See id. at 28 (stating that allegations that the union election was called on

“short notice, that many workers were not notified [of the vote], and that the electionwas conducted” in an open ballot format against the wishes of the workers was supportedby testimonial evidence).

74. See id. at 29.

75. See id. at 31-32 (“It is not insignificant that the time consumed by the denials[of union registration] on these grounds [minor administrative deficiencies in the appli-cations] has arguably caused the interested workers an irreparable harm.” The reportalso notes that “the registration process appears to have been thwarted by technicalities,”and evidence of the government supported union opposing the registration of independentunions “tends to support the allegations of the submitters” that the government sup-ported union was illegally interfering with the union registration campaign).

76. See id. at 32 (recommending Ministerial Consultations based on the fact that“serious questions are raised herein concerning the workers’ ability to obtain recognitionof an independent union through the registration process”).

77. See Report on Ministerial Consultations on NAO Submission No. 940003 underthe North American Agreement on Labor Cooperation, at 3-4 (Jun. 4, 1996) (stating that

the implementation agreement included three types of activities to evaluate the law re-garding union registration and its enforceability. It called for “a joint work program tobe completed within one year”; a study to be conducted by experts in Mexican labor lawto be completed within 180 days; and lastly, it called for meetings between Mexican gov-ernment officials and parties involved in the submission, to be completed within 120days).



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quirements had been fulfilled.78 In a follow-up report,79 the NAO statedthat the consultations made progress80 but noted that the workers firedfrom the Sony subsidiary remained unemployed.81

Submission No. 9601 was filed on June 13, 1996,82

against the Fed-eral Conciliation and Arbitration Tribunal (FCAT), one of the Mexicangovernmental agencies charged with arbitrating employment relationsissues.83 The allegations responded to an action by the government of Mexico, which, in the process of consolidating some of its federal bu-reaucracy, eliminated the independent majority union at one of its gov-ernmental agencies.84 The complaint alleged that the FCAT violatedMexican labor laws by failing to recognize the independent union.85 Italso alleged that Mexico failed to maintain its FCATs in an impartial

manner.86

The complaint went on to criticize a Mexican public laborlaw, which prohibits more than one union from being recognized in apublic work place.87 The U.S. NAO accepted the submission for reviewon July 29, 1996. Six months later, on January 27, 1997, the NAO is-

78. See id. at 4 (stating that the three NAOs developed and carried out a joint-work program, which consisted of three seminars and announced the completion of astudy of Mexico’s labor laws dealing with union registration and its implementation).

79. See Follow-Up Report, NAO Submission No. 940003 (Dec. 4, 1996).80. Id. at 6-9. The report viewed two Mexican Supreme Court decisions, which

found state statutes prohibiting employees from forming more than one union per work-place to be unconstitutional, as signaling a departure from past restrictions on the rightto organize. The report also indicated that the public disclosure of sensitive information,the cooperative spirit that prevailed, and the beginning of a more open evaluation of eachcountry’s labor laws and systems of enforcement all showed steps in the positive direction.

Also, the report noted that “[p]erhaps the greatest achievement of these ministerial con-sultations was that the public was afforded the opportunity to observe and participatein this dialogue, and to question their own governments about the ways in which theymight improve enforcement of their own labor laws.”

81. See id. at 4 (noting that the NAO received information indicating that all theworkers dismissed in the events associated with this case remain unemployed and thatmany of the workers believed they had been “blacklisted” and therefore were unable tosecure employment “anywhere in Nuevo Laredo”).

82. Submission No. 9601, at 2 (announcing that the submission was filed by HumanRights Watch (HRW), the International Labor Rights Fund (ILRF), and the AsociaciónNacional de Abogados Democráticos (National Association of Democratic Lawyers)).

83. See id. at 3. Allegations raised against the Federal Conciliation and ArbitrationTribunal (Tribunal Federal de Conciliación y Arbitraje) [hereinafter FCAT] assert thatworkers lost their union identity when the Fishing Ministry was consolidated by thegovernment with two other government agencies in the creation of a single agency tocreate the Ministry of Environment, Natural Resources, and Fishing.

84. See id.85. See id. at 6. Specifically, the complaint alleged that the FCAT violated Mexican

labor law by “de-registering [the independent union] and in its refusal to reinstate fullrecognition of [the independent union]” questioning the legality of both arbitrarily de-registering the union and refusal to reinstate it under Mexican law.

86. See id. at 7 (alleging that the structure of the FCAT’s membership, with laborrepresentation emanating exclusively from the government supported union, made itpartial and inherently biased).

87. See id. at 6-7 (complaining of “Mexico’s failure to revise its law of federal em-ployees (LFTSE) limiting the number of unions in the federal sector to reflect its obli-gations under several international treaties to which it is a signatory”).



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sued a public report finding that the governmental mechanisms inplace provided adequate recourse for workers,88 but the composition of the FCATs “create[d] the appearance of lack of impartiality.”89

Ministerial Consultations were recommended and commenced topromote an understanding of rights related to freedom of associationin Mexico and to further study Mexico’s ability to enforce those rightswithin its existing administrative framework.90 The Ministerial Con-sultations are still pending, and this nearly three-year-old complainthas not yet been resolved.

Submission No. 9701 was filed on May 16, 1997,91 against variousprivate sector employers in several regions of Mexico.92 The complaintalleged gender discrimination against pregnant women and a failure

of the government to respond.93

Specifically, the complaint alleged thatpre-employment pregnancy tests were utilized to intentionally screen-out pregnant women.94 Allegedly, women who became pregnant on the

job faced dismissal or harassment in employer efforts to avoid mater-nity leave payments.95 The NAO accepted the submission for review onJuly 14, 1997, and released its findings nearly six months later on Jan-

88. See Submission No. 9601, at 32 (stating that members of the independent unionwere able to receive relief from appellate courts in three of four situations showing thatrecourse is indeed available).

89. See id. (stating that since labor representation on the FCAT is reserved exclu-sively for the government-supported union, there may be a problem of impartiality in adispute involving the government supported union and an independent union).

90. See id. at 32-33 (noting that while the composition of a FCAT is explicit in thelaw, the labor member on the panel is regularly reserved for the company dominatedunion representative).

91. Submission No. 9701, at i (indicating that the submission was filed by HumanRights Watch, the International Labor Rights Fund, and the National Association of Democratic Lawyers of Mexico).

92. See id. (noting that the discrimination complaint focused on the actions of ex-port processing employers in the Maquiladora industrial sector). The report indicatesthat by July, 1997, over 908,000 workers were employed in the Maquiladora sector invarious exporting capacities. See id. at 13 (citing Instituto Nacional de Estadı́stica, Geo-grafı́a de Informática (INEGI), Industria Maquiladora de Exportación, at 2 (Sept. 1997)).

93. See id. at 6.94. See id. at 2 (stating that the submitters allege that the “Maquiladora employers

regularly require female job applicants to verify their pregnancy status as a condition of employment”).

95. See id. at 5 (declaring that submitter Human Rights Watch found that whensome workers became pregnant, the companies encouraged them to resign by “reassign-ment to more difficult tasks; alteration of work shifts on a weekly basis; being forced tostand instead of being offered a seat; and being obliged to work overtime hours withoutcompensation as a condition for keeping their employment” as well as other forms of intimidation and harassment). It is also alleged that women were denied adequate re-course in the law. See Submission No. 9701, at 7 (stating that the established institutionsdesigned to address these matters are poorly funded and lack the requisite jurisdictionor direction to address gender discrimination. The Report specifically noted the ineffec-tiveness of the Conciliation and Arbitration Boards, which are the primary administra-tive bodies for the adjudication of labor/management disputes, but are limited in thisarea because of a lack of jurisdiction over pre-employment matters, including pre-employment pregnancy testing).



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uary 12, 1998. The NAO acknowledged that pre-employment preg-nancy screening, which may be a violation of international law96 andis questionable under Mexican law,97 is prevalent in the Maquila-

doras.98

The NAO also discovered that post-hire pregnancy discrimi-nation is prevalent, and many Mexican women are unaware of theiravailable options to combat this form of illegal sex discrimination.99

Because of these findings, the NAO recommended Ministerial Consul-tations to “clarify the law and practice in Mexico on pre-employmentpregnancy screening and post-hire discrimination on the basis of preg-nancy.”100 Action on this matter is still pending at the Ministerial leveltwenty-one months after the original filing.

Submission No. 9702 was filed on October 30, 1997,101 against a

Mexican subsidiary of Han Young Corporation.102

The complaint al-leged that the company attempted to thwart employee efforts to forman independent union through intimidation, coercion, and harass-

96. Arguably, Mexico may be in violation of several international agreements towhich it is a signatory. See International Labor Organization (ILO) Convention 111, Dis-crimination in Respect of Employment and Occupation, adopted June 4, 1958, ratified byMexico in 1961. See also The U.N. Convention on the Elimination of All Forms of Dis-crimination Against Women (CEDAW), adopted by the United Nations General Assemblyin Resolution 34/180 of December 18, 1979 and opened for signature, ratification andaccession in March 1980, ratified by Mexico in 1981. See also International Covenant onCivil and Political Rights (ICCPR) and the American Convention on Human Rights.

97. See id. at 14 (referring to various provisions of the Mexican Constitution andMexican Federal Law to demonstrate that pregnancy discrimination is prohibited. Article123(A) of the Mexican Constitution governs labor standards and paragraph V establishesprotections for pregnant women. Title V of the Federal Labor Law deals with the em-ployment of women and prevents discrimination in Articles 133 and 164; and Article 170provides protection against gender discrimination).

98. See Submission No. 9701, at 34 (noting that the Government of Mexico claimsthat pre-employment pregnancy testing is not widely practiced and where it is practicedit is not inconsistent with Mexican law).

99. Id. at 44. The findings are adequately summarized by this passage in the report:

The review of Submission No. 9701 raises serious matters regarding the treat-ment of women workers who are pregnant in Mexico’s Maquiladora sector andthe protection they are afforded by the Mexican authorities. Women are sub-

jected to pregnancy screening and intrusive questioning. They are denied em-ployment if they are pregnant. There are instances where they are dismissedfrom employment after becoming pregnant or are pressured into resigning forthe same reason. The level of awareness amongst women of their rights is inquestion and they may lack confidence in the procedures and mechanisms bywhich those rights can be protected.

100. See id. at iii.101. Submission No. 9702, at i (stating that the submission was filed by the Support

Committee for Maquiladora Workers, the International Labor Rights Fund, the Asocia-

ción Nacional de Abogados Democráticos de Mexico (National Association of DemocraticLawyers of Mexico), and Sindicato de Trabajadores de la Industria Metálica, Aerco,Hierro, Conexos y Similares de Mexico (the Union of Metal, Steel, Iron, and Allied Work-ers of Mexico).

102. See id. at 3 (noting that Han Young de Mexico, S.A. de C.V. assembles car partsfor Hyundai Precision America, a subsidiary of Hyundai Corporation of Korea).



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ment.103 A supplemental complaint was added to the Han Young case104

on February 9, 1998, to address alleged health and safety violations atthe same plant.105 The complaint alleged violations of health and safety

laws and regulations106

resulting in various injuries and ailments107

and further alleged that the Mexican government failed to enforcehealth and safety laws at the plant.108

The NAO accepted the Han Young subsidiary case for review onNovember 17, 1997 and issued a report of findings on April 28, 1998.In its report, the NAO substantiated many of the allegations, stating,“[t]he workers in question have expressed their union preferencethrough two representation elections, strikes, and fasts, and in the faceof determined opposition from the company, including intimidation,

threats, and dismissals.”109

Serious questions were also raised aboutthe ability or willingness of Mexico’s Conciliation and Arbitration

103. Id. at ii. The report notes that many of the workers claimed to have never seenor have any knowledge that they were operating under a collective bargaining agreementor were represented by a union. When an election to create an independent union was held,the complaint alleges that it transpired with many irregularities such as threats of dis-missal and intimidation. Additionally, the company allegedly interfered with the actualelection when it brought in thirty-five workers sympathetic to the company who were oth-erwise ineligible to vote and prevented the submitters from checking the credentials of these individuals; see also, id. at ii (noting that despite the use of these illegal activities bythe company, the complainants voted for the independent union anyway, only to have itoverturned and nullified by a Mexican Conciliation and Arbitration Board); see id. (stating the CAB based its ruling to overturn the election on the fact that the union was not properlyregistered and failed to prove that it had support from a majority of the workers).

104. See Submission No. 9702-Part II: Safety and Health Addendum (stating thesecond submission was offered by the Maquiladora Health and Safety Support Network,Worksafe! Southern California, the United Steelworkers of America, the United

AutoWorkers, and the Canadian AutoWorkers).105. See id. at 2 (stating that workers at the Tijuana plant were interested in form-

ing a union to address “issues of safety and health . . . and the lack of a company doctorin the plant”).

106. See id. at 2 (noting that the alleged violations claimed that Han Young failedin “installing local exhaust ventilation, conducting periodic hazard identification andcon-trol, exposure monitoring, medical surveillance, health and safety training and otherhazard control measures.” The submission also claimed that Han Young failed to provideadequate protective gear consistent with safety rules that would have avoided injuryincluding safety glasses, face masks, gloves, and shoes).

107. Id. at ii. The complaint states that various violations of health and safety lawshave led to frequent injuries and illnesses such as respiratory problems, loss of vision,broken bones, burns, and hearing loss.

108. See id. at 41 (“At least four inspections took place since June 16, 1997. . . . [F]ourinspections in the space of one year is substantial. Notwithstanding repeat inspections,however, serious unabated violations were allowed to continue over this entire period.”).

109. See Submission No. 9702, at 45-46 (finding:

[t]hat a group of 120 workers at Han Young obtained union representationonly after extensive litigation, intervention by the Mexican Federal labor au-thorities, two representation elections which they won, international publicattention, and extensive media coverage. It is worth noting that until the in-stant case, from the information available to the NAO, not one independentunion had been registered or had obtained collective bargaining representa-



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Boards (CAB) to enforce freedom of association rights to form an in-dependent union.110

On August 11, 1998, the U.S. NAO issued a public report of its

findings regarding the supplemental complaint and again substanti-ated many of the claims identifying details of a hazard filled work-place.111 Specifically, the report found,

The information from expert witnesses, workers and inspection re-ports is consistent and credible in describing a workplace pollutedwith toxic airborne contaminants, strewn with electrical cables run-ning through puddles of water, operating with poorly maintained andunsafe machinery, and with numerous other violations and omissionsof minimum safety and health standards.112

The NAO also found that the health and safety inspections conductedby the Mexican government were ineffective, and despite frequent in-spections, violations continued unabated.113 As a result of these find-ings, the U.S. NAO recommended Ministerial Consultations, which arepending.114

IV. Analysis

A. Mexico’s Inability to Enforce Its Labor Laws

Although substantive Mexican laws contain sufficient protections

of worker rights,

115

it is apparent that Mexico does not adequately en-force its labor laws. Sources of worker protections in Mexico include thePolitical Constitution of the United States of Mexico,116 the Mexican

tion rights in Tijuana and only one other exists in the entire maquiladorasector).

110. See id. at 47 (finding that:

[t]he placement, by the Tijuana CAB, of obstacles to the ability of workers toexercise their right to freedom of association, through the application of in-consistent and imprecise criteria and standards for union registration and fordetermining union representation, is not consistent with Mexico’s obligationto effectively enforce its labor laws on freedom of association in accordancewith Article 3 of the NAALC).

111. See Submission No. 9702-Part II: Safety and Health Addendum, at 40.112. See id. (noting also that “[t]his workplace was severely lacking in adequate

sanitation facilities for workers to relieve themselves and bath[e] in minimally acceptablehygienic conditions or even get a drink of water”).

113. Id. at 42. The findings note that nearly $10,000 in fines were assessed againstHan Young although it has not been shown that the fines were actually collected, or what,if any, additional actions were contemplated by Mexican authorities to seek compliance,thereby throwing into question the deterrent value of the inspections generally.

114. See id. at 43.115. See supra notes 55-114. All of the submissions legally ground their complaints,

not only on the mandates set out in the NAALC, but in the violation of internationaltreaties to which the United States and Mexico are signatories and specific provisions of Mexican constitutional and statutory law which preserve worker rights.

116. 2 A MOS J. PEASLEE, Political Constitution of the United States of Mexico, inCONSTITUTIONS OF N ATIONS: FRANCE TO POLAND 415, 453-56 (1950). Title VI, Article 123of the Mexican Constitution provides the pertinent constitutional basis for worker pro-



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Federal Labor Law,117 and many international agreements to whichMexico is a party.118 Although these laws provide a sufficient legal basisfor enforcement of basic worker rights, the U.S. NAO has found fre-

quent and continual violations of these rights by subsidiaries of U.S.and other multinational corporations operating in Mexico, in additionto a lack of enforcement by the government of Mexico.119

The U.S. NAO has also found that most Mexican workers are un-aware of their rights and that the administrative and legal institutionsin place have thwarted, rather than assisted, workers attempting toutilize such mechanisms.120 This raises the concern that Mexico’s ad-

tections stating, “Congress, with due regard for the following principles, shall enact lawson labor, which shall govern in the case of skilled and unskilled workmen, employees,domestic help, and artisans, and in general every labor contract.” Id. at 453. Specificprovisions following lay out the basic protections that workers are to enjoy. “The mini-mum wage to be received by a workman shall be that considered sufficient, according tothe conditions prevailing in the respective region of the country, to satisfy his normalneeds, his education, and his lawful pleasures, considering him as the head of a family.”

Id. at 454 (quoting CONST. at Title VI, Art. 123 (VI)). “In every agricultural, industrial,mining or other class of work, employers are bound to furnish their workmen comfortableand sanitary dwelling places.” Id. (quoting CONST. at Title VI, Art. 123 (XII)). “Employersshall be liable for labor accidents and occupational diseases contracted by reason of or infulfillment of work.” Id. (quoting CONST. at Title VI, Art. 123 (XIV)).

Employers shall be bound to observe in the installation of their establishments

all the provisions of law governing hygiene and sanitation, and to adopt ade-quate measures to prevent accidents due to the use of machinery, tools, andworking materials, as well as to organize the work in such a manner as toassure the greatest guarantees possible for the health and lives of workmencompatible with the nature of the work, under penalties which the law shalldetermine.

Id. at 455 (quoting CONST. at Title VI, Art. 123 (XV)). “Both workmen and employersshall have the right to unite for the defense of their respective interests, by forming syndicates, unions, professional associations, etc.” Id. at 455 (quoting CONST. at Title VI,

Art. 123 ((XVI)). “The law shall recognize the right of workmen and of employers to strikeand to lock-out.” Id. (quoting CONST. at Title VI, Art. 123 ((XVII)).

117. See Ann Torriente, Study of Mexican Supreme Court Decisions Concerning the Rights of State Employees to Organize in the States of Jalisco and Oaxaca, National LawCenter for Inter-American Free Trade (1997), available at http://www.natlaw.com/pubs/ spmx1b3.htm (describing the Mexican Federal Labor Law, most recently amended in 1988,as the statutory basis for implementation of the general worker rights provisions de-scribed in the text of the Mexican Constitution). [On file at the U.S. Dep’t of Labor, U.S.Bureau of International Labor Affairs, U.S. National Administrative Office, under Sub-mission No. 940003].

118. See id. (noting that Mexico is a member of the International Labor Organizationand ratified ILO Convention 87, which addresses freedom of association, on April 10,1950). Mexico also ratified International Labor Organization conventions 155, 161, and170, which address occupational safety and health. S ee also supra note 96 (noting thatMexico has ratified International Labor Organization Convention 111 which addressesdiscrimination in the workplace); see also supra note 104, at 22 (noting that the prevailing legal view in Mexico is that international treaties are superior to federal law) (citing Torriente, supra note 117 (describing other worker protections present in Mexico includ-ing federal laws for public sector workers, various state laws for workers employed atthe local level, decision law through administrative bodies, and doctrinal opinions)).

119. See supra notes 53-114.120. See supra notes 90 & 100.



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ministrative mechanisms lack the will or ability to address worker rightsviolations.121 Specifically, several of the submissions substantiate testi-mony and evidence indicating that the CABs, the three-member govern-

ment panels empowered to prevent employer misconduct, lack imparti-ality122 and discriminate against workers by overturning union certi-fication votes based on administrative minutia.123

In the Han Young subsidiary case (No. 9702), the U.S. NAO foundsignificant and unimpeded health and safety violations.124 In othercases, the use of threats, fear, and intimidation by employers to quellunion organizing drives is common.125 The charges indicate that de-spite government inspections, workers continued to be employed in ahazard filled workplace and that although fines were assessed against

the company, the NAO was never able to ascertain if Mexican author-ities collected the fines.126 In the Sony subsidiary case (No. 940003),the NAO determined that Mexican workers, who may have beenwrongly dismissed and had their union election tampered with, enjoyedlittle reasonable legal recourse.127

These and other examples illustrate that even with the specter of public attention and mounting pressure, Mexico continues to have apoor record of enforcing its labor laws. The research demonstrates thatwhen Mexico makes an effort to enforce its laws, the institutions

charged with enforcement suffer from administrative indifference andbias. Furthermore, the cases demonstrate that the legal goal of theNAALC in ensuring Mexico’s enforcement of its labor laws has failed.This article will now specifically discuss the NAALC’s inability to assistMexico in the enforcement of its labor laws.

121. See Submission No. 9702-Part II, at 69 (stating that the review of this submis-sion “raises questions about the impartiality of the CAB No. 15 and the fairness, equi-tableness, and transparency of its proceedings and decisions”); but see supra note 82, at

32 (indicating that the composition of arbitration panels “creates the appearance of a lackof impartiality” yet the union wishing to gain certification in this case had three out of four appeals cases decided in its favor by an appellate panel).

122. See Submission No. 9702, at 47.123. See id. (finding that the Tijuana Conciliation and Arbitration Board placed

obstacles in the way of worker’s attempting to exercise their right to associate andorganize a union “through the application of inconsistent and imprecise criteria andstandards for union registration and for determining union representation” and foundthese activities inconsistent with “Mexico’s obligation to effectively enforce its laborlaws”).

124. See Submission No. 9702-Part II: Safety and Health Addendum, at 26 (describ-ing a “workplace posing dangers to the health and safety of workers . . . where they were

exposed to toxic airborne contaminants that threatened their long term health. Theseconditions remained unabated over a period of time, and continue largely unabated, de-spite repeated inspections by the Mexican government.”).

125. See, e.g., Submission No. 940001 & No. 940002.126. See Submission No. 9702-Part II: Safety and Health Addendum, at i-ii.127. See Submission No. 940003, at 26-27.



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B. NAALC’s Failure to Promote Mexican Worker Rights

Architects of the NAALC, recognizing the potential value of Mex-ico’s pre-existing legal basis for progressive advancement of workerrights, designed the regime to assist Mexico in enforcing those lawsalready on the books. Yet the NAALC proved itself incapable of ensur-ing that Mexico’s labor laws are enforced and as a result, while it hasgenerated greater disclosure, it has had little or no effect in correcting specific violations of individual worker rights.128

The significant shortcomings of the NAALC fall into three sub-fields. First, the NAALC is structurally flawed in that it exempts manyalleged abuses from condemnation under the NAALC system. Second,the Ministerial Consultation process has not provided for adequate res-olution of disputes. This is evidenced by the discovery that the workersbringing complaints rarely see any improvement in their specific situ-ations. Third, administration of the NAALC process utilizes an unrea-sonable amount of time and resources without providing any real op-portunity for arbitration, which is a more cost-effective approach todispute resolution.

1. A Hierarchy of Rights

The side accords’ primary deficiency is that matters of great sig-

nificance, including those related to freedom of association, the right tostrike, the right to organize, and other industrial labor issues, are givenlower priority.129 Thus, if raised in a complaint, these issues are notpermitted to move beyond the Ministerial Consultation phase of theNAALC process.130 In regard to disputes covering these issues, theNAALC solely sets forth a system fostering cooperation and consulta-tion as opposed to punitive disciplinary action or alternative disputeresolution.131 In the areas of child labor, occupational health and safety,

128. It should be noted that the initial steps of the NAALC process, including NAOfact gathering, have allowed for the significant disclosure of sensitive information of thelabor practices of NAFTA countries and happens to be one of the more useful provisionsof the side accord. See Juli Stensland, Note, Internationalizing the North American Agree-ment on Labor Cooperation, 4 MINN. J. GLOBAL TRADE 141, 162 (1994) (stating that theNAALC provides access to greater amounts of information making it easier for interestedparties to identify labor abuses).

129. See supra note 9 (defining the wide scope of issues to be included within thepurview of the NAALC generally); see NAALC, supra note 5, at art. 23 (stating that theEvaluation Committee of Experts phase of the NAALC, which follows unsuccessful Min-isterial Consultations, is reserved for issues involving the “enforcement of . . . occupa-tional safety and health or other technical labor standards”).

130. See The Failed Experiment: NAFTA at Three Years: NAFTA and Labor Rights(Int’l Lab. Rights Fund), at 17-18 (Jun. 26, 1997) (noting that issues related to technicallabor standards can never lead to trade sanctions).

131. See also Crandall, supra note 29, at 192 (stating that the “protracted” submis-sion process and inability to sanction industrial labor violations make the side accordappear “toothless”).



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and other concerns, the NAALC expands the alternatives by permitting the creation of a panel of experts, followed by an additional series of consultations and eventually an arbitration system that may admin-

ister sanctions.132

The consequence is that many significant workerrights issues go un-addressed by some of the more powerful mecha-nisms of the NAALC. Many of the issues excluded from protection, suchas freedom of association and the right to strike, are foundationalrights, which permit workers to advance their cause collectively.

It can be argued that these fundamental rights deserve a height-ened level of protection because they create a platform of democracyand equal treatment under the laws that are of integral importance tothe advancement of worker rights in so many other areas. Stronger

protection of the right to organize and bargain collectively would go along way in addressing health and safety violations that continue topermeate much of Mexico’s industrial culture. The NAALC fails to at-tach the appropriate level of significance to these considerations bydischarging these fundamental matters to a secondary status.

2. Ministerial Consultations Do Not Facilitate Justice

The meetings of Labor Ministers, when they have been conducted,have not resulted in meaningful resolution of the identified workerrights violations. For example, in the Sony subsidiary case (No.

940003), the Ministerial Consultations called for an examination of thelaws applicable to union registration and certification. They also calledfor a review of the efficacy of each government in implementing andenforcing those laws.133 While information exchange can be a valuableattribute134 by leading to a broader understanding of each nation’s la-bor laws, it does not directly address the injustices experienced by theworkers who filed the submission twenty-one months prior, nor does itresult in their re-employment. The particular workers harmed did notwitness any positive change as a result of the consultations, but instead

experienced reprisals for filing a complaint in the first place.135

Similarly, in the submission alleging pregnancy discriminationagainst several employers in the Maquiladora region of Mexico (No.9701), the NAO discovered that this form of discrimination is prevalentin Mexican society and that the Mexican government is aware of the

132. See NAALC , supra note 5, at art. 23.133. See id. at 3.134. Study on the Operation and Effects of the North American Free Trade Agree-

ment, Office of the United States Trade Representative, at 104 (July 1997) (stating that“Ministerial Consultations have been an effective forum for providing transparency andfocusing international attention on important labor law enforcement issues”).

135. See Submission No. 940003, at 4 (acknowledging that the workers who filedthe original submission have not been reinstated after their dismissal and believe theyhave been “blacklisted” and as a result are precluded from obtaining gainful employ-ment elsewhere).



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problem.136 In response to the findings, NAO recommended that Min-isterial Consultations “clarify the law and practice in Mexico on pre-employment pregnancy screening and post-hire discrimination on the

basis

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