An
Apple a Day, Keeps the Unions Away
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I. Identification This case serves to illustrate one of the concerns
that people have had with NAFTA from the beginning . . . the treatment
of workers. The NAALC was added to NAFTA as a way of calming the fears
of those who thought that NAFTA would merely lead to a ‘race to the bottom’
with workers suffering. While the NAALC is a step in the right direction
in acknowledging the need to protect workers’ rights, its flaw is
that it lacks the power to coerce governments into enforcing labor standards.
While the NAALC is better than nothing, changes need to be made if workers’
rights are to be truly protected.
The
Workers
Illegal immigrants are America's invisible workforce.
They form an “underground economy that we as a nation have refused to confront”
states Victor Narro, an attorney at the Coalition for Humane Immigrants
Rights. The U.S. economy is strong, but few of us stop to think that
much of the economy is built on the backs of exploited workers.(2)
Since they are not tracked, it is difficult to know the size of the
illegal workforce in the United States, but it has been estimated at about
five million. There are an estimated 42,000 illegal workers in Washington
State, working primarily in agriculture.(3) While
theoretically labor standards and minimum working standards apply
to all people in the U.S. regardless of their immigration status, in reality
this is just not the case. Their illegal status makes the immigrants
vulnerable to abuse because they are unfamiliar with the law and
too scared to speak out in fear that they will be deported. The workers
are also well aware of the fact that there are many other workers who are
willing to take the abuse. These factors all combine and explain while
the workers generally don't complain about working conditions. Exploitation
of illegal immigrants is a large problem in this country, and it is a problem
that most ignore.(4)
A contradiction has been formed because of the inadequacy
of U.S. immigration law. This contradiction is illustrated by Gregory
Schnell, an attorney in Florida. Schnell represents exploited immigrants
harvesting sugar cane and the legal workers they're replacing. Illegal
immigrants hurt U.S. laborers buy creating a surplus which allows
employers to cut wages. As long as labor laws go unenforced, industries
will exploit workers.(5) It was this “race to
the bottom” that promoted the creation of NAALC.
What
is the NAALC?
What
are the principles?
How
is the NAALC Organized?
What
are countries’ obligations under the NAALC?
How
are complaints treated?
The NAALC is the side agreement
to NAFTA intended to advance workers’ rights and living standards by promoting
labor law enforcement. The agreement took effect with NAFTA on January
1, 1994. The NAALC was created in response to U.S. congressional interest
in incorporating labor laws into NAFTA.(6)
1. Freedom of association and protection of the right to organize
2. The right to bargain collectively
3. The right to strike
4. Prohibition of forced labor
5. Labor protections for children and young persons
6. Minimum employment standards
7. Elimination of employment discrimination
8. Equal pay for women and men
9. Prevention of occupational injuries
10. Compensation in cases of occupational injuries and illnesses
11. Protection of migrant workers (7)
| The Commission: | The Commission for Labor Cooperation, which consists of the Ministerial Council and a Secretariat, is the international organization that was created under the NAALC.(8) |
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The Council: |
The Council consists of the Secretaries of Labor from all three NAFTA countries. The Council acts as a single entity and oversees the implementation of the NAALC and supervises the activities of the Secretariate.(9) |
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The Secretariate: |
The Secretariate is based in Dallas, Texas and includes economists, lawyers and other professionals with experience in labor law. These professionals are drawn from all three NAFTA countries.(10) The Secretariate has two functions, one of which is making information available to the public as well as undertaking research and analysis. Secondly, the Secretariate serves as the administrative arm of the Commission. The Secretariate provides support to the Evaluation Committees of Experts (ECE) and Arbitral Panels by the Council. The ECE from the three NAALC countries conducts reviews with recommendations on labor law enforcement. Arbitral Panels resolve disputes among the governments. The Secretariate also prepares and publishes reports on the outcomes of the ECE. Furthermore, it reports on the consultations between the National Administrative Offices and Ministerial Consultations.(11) |
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National Administrative Office (NAO): |
The NAALC requires that each country maintain an office with the Department of Labor. The NAOs serve as points of contact and information among themselves, other government agencies, the Secretariate and the public. The NAO also receives and responds to complaints.(12) |
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What are countries’ obligations under the NAALC?
It is important to know that each country retains full right to establish its own domestic labor standards and to adopt or modify accordingly its labor standard. But there are obligations that all countries must follow.
1. Effective Enforcement
2. Access, Transparency, and Due Process of Law
3. Public Information and Awareness of Laws and Regulation
4. Cooperative Activities: the Council shall promote cooperative
activities between the
countries
5. NAO Reviews: Countries shall allow for review of labor laws
issued by each others
NAOs (13)
A complaint must be logged with the NAO of another
country. The NAO reviews and reports on the case and may recommend ministerial
consultation if the complaint is found to have merit. In trade related
matters, an ECE may be formed with one member from each country to evaluate
the effectiveness of a country's labor law enforcement. ECE members are
outside experts and not government officials. Eight of the eleven labor
principles are subject to evaluation under the ECE. These exclude union
organizing, collective bargaining, and the right to strike. The last step
is arbitration. A five person panel of experts from the three NAALC countries
may take up disputes that are not resolved by the ECE. The panel may issue
an action plan. If the plan is ignored, fines may be levied against the
offending government, or the companies involved may lose the NAFTA tariff
preferences. It is important to note that minimum wage, child labor, and
occupational health and safety are the only labor principles subject to
arbitration. If the issue is not related to trade matters as defined by
the NAALC (that is, it deals with freedom of association, collective
bargaining, or the right to strike) the NAO can only recommend that
the Ministers of Labor hold a consultation to the subject.(14)
On
May 27, 1998, a coalition of trade union and farmworker organizations filed
a complaint under NAALC citing lack of legal protection for union organizing
and bargaining rights, discrimination against migrant workers, health and
safety violations, and employers’ use of threats and intimidation in recentunion
representation. The coalition of Mexican unions had support from the Teamsters,
the International Labor Rights Fund
and other organizations. These complaints were filed against
two major apple packing and shipping plants in Washington State: Stemlit
Growers and Washington Fruit.(15) The complaint went
to hearing in Mexico on December 2, 1998.(16)
The report and recommendations from the Mexican NAO are pending.
The complaint is one of twenty that have been filed
under the NAALC but it is the first to go to hearing in Mexico. This complaint
is also important as it is the “broadest” complaint filed under the NAALC
to date. The complaint shows that Mexico is not the only country in North
America where workers’ rights are violated. Pharis Harvey, director
of the International Labor Rights Fund states that, “ . . . the United
States has to be just as willing as Mexico to have its labor law system
examined in light of the NAALC labor principles. This case adds more balance
to the NAALC process.”(17) Teamster spokesman John
August said, “This is a tremendous forum for exposing the reality that
workers face, which in the long run could be more important the single
case."(18)
If the case is successful, some labor law experts
predict that unions and other labor groups will increase their use of the
NAALC to challenge U.S. labor practices. The apple worker campaign has
already resulted in greater collaboration among unions in the U.S., Mexico
and Canada. This is shown by the fact that labor unions from all three
countries signed the petition. But not everyone agrees that the complaint
is a positive thing.(19)
Chris Schlect, president of the Northwest Horticultural Council, a fruit
industry group, states that unions are abusing the NAFTA process in an
effort to expand their power. He warned that if the effort is successful,
it would open doors to a host of frivolous and costly complaints against
U.S. employers. He said, “what NAFTA’s labor side agreements are is just
and open invitation for specific disputes to be raised into an international
question. And the idea that U.S. labor law are somehow below world standards,
below Mexican standards, is not something that most Americans would agree
with.”(20)
The labor unions and organizations
that filed the complaint are obviously very hopeful that changes will come
from the complaint. The NAALC was written and adapted just for cases like
these . . . to help protect workers no matter where they are. However,
it may take years for the complaint to make it way through the entire process.
Once the complaint does wind its way through the bureaucracy, it is doubtful
that anything significant will happen because his is the conclusion one
comes to when examining the other complaints filed under the NAALC.
The problems with the NAALC process can be seen in the NAO summary of NAALC
Submission 940001 and 940002, a case against Honeywell and General Electric.
The report itself says:
“Moreover, the NAO is not an appellate body, nor is it a substitute
for pursuing domestic
remedies. Rather, the purpose of the NAO review process, including the
public hearing, is to
gather as much information as possible to allow the NAO to better understand
and publicly
report on the Government of Mexico's promotion of compliance with, and
effective enforcement
of, its labor law through appropriate government action, as set out
in Article 3 of the
NAALC.”(21)
The problem is that the NAALC is not as forceful
as it should be and does not use the power that it has to protect workers’
rights. We have seen that workers’ rights to organize are not protected
enough under the NAALC. The NAO can only recommend that the MinisterialCouncil
study the issue. The only hope that the apple pickers have is that their
complaint was very broad and focused on more that the rights for workers
to organize. However, we see even more problems with the process when we
learn that if an ECE is formed and they find persistent violations in minimum
wage laws, child labor or health and safety violations, a fine or trade
sanction may be levied in an amount of $20 million maximum. The problem
is that the fine is collected from the country complained against, and
then turned over to that same country to remedy the problem.(22)
The effectiveness of the
NAALC is open to debate. While everyone would agree that it is better than
nothing, the agreements are severely lacking in protecting workers’ rights
to organize. The first problem is that all the NAALC can do when dealing
with workers’ rights to organize is recommend an investigation. But
even if NAO’s recommendations on these matters are not the equivalent of
rulings and do not lead to sanctions or fines, greater exposure of such
violations could lead to a stronger stance against these violations.(23)
Another problem is that most of the complaints filed with the NAO
deal with workers rights to organize and these are not adequately
protected. A third problem is that if a case where to make it all the way
through the process and to arbitration, the fines levied against the country
would be so little that it would offer no coercive effect.(24)
There are some good
points to the NAALC. It recognizes the linkage between conditions of labor
and trade. It opens dialogue between party states and has provided an open
forum for discussing laws regarding labor rights. The biggest problem with
the NAALC is the lack of protection for workers’ rights to organize. The
Han Young case filed with the NAO cited both health and safety violation
and violations in the workers rights to organized. The NAO recommended
only that the health and safety issues be investigated.(25)
In the afore quoted Honeywell and GE case, the NAO found no violation or
workers’ rights to organize and NAO
found no need to investigate further.(26)
However, the NAO did request that Ministerial consultations take place
for NAO submission 9601 which dealt with freedom of association for Mexican
public sector employees.(27) Ministerial consultations
were also recommended for NAO Submission 940003 which dealt with union
organizing in a Sony factory. However, we see from the follow up
report that many of the employees dismissed from Sony are still unemployed
and
believe that they are blackballed. Also, after the ministerial
consultation there was legislation introduced in Mexico, but to quote the
report, “The extent of the developments discussed above, however, remains
to be seen.”(28)
What is the importance of the apple
picker case? The case is important as it is the first time that a complaint
has been filed with the Mexican NAO against labor conditions in the United
States. The case serves as a wake up call because even through worker exploitation
is a huge problem in this country, especially with migrant workers, it
is often ignored. A spokesman for the National Workers Union, a Mexican
labor federation, said, “what’s going on is a
veritable ‘social dumping’ of apples exported to Mexico, with companies
tripling their profits by violating workers’ rights." The case is also
important because of its broadness . . . it “could provide the most
comprehensive test of the effectiveness of NAFTA’s labor side agreement."
(29) What will happen to the complaint remains to be
seen. Hopefully the workers’ right to organize will be recognized, but
because of the ways that NAALC is set up, there is little that they can
do.
However, the NAALC does have power over other complaints, and we can
only hope that the discrimination against migrant workers and the health
and safety violations will be rectified.
II. Legal Clusters III. Geographic Clustersb. Geographic Site: North Pacific Region
c. Geographic Impact: United States
IV. Trade Clustersb. Indirectly Related to Product:Yes
The dispute is indirectly related to the product (apples) as it involves those picking them.
c. Not Related to Product: No
d. Related to Process: Yes
The issue is related to process as the workers pick
the apples (process).
| Year | 1990 | 1991 | 1992 | 1993 | 1994 | 1995 | 1996 |
| export value | 6,852 | 12,125 | 34,508 | 56,715 | 87,492 | 39,798 | 41,518 |
| export volume | 12,027 | 21,625 | 74,220 | 108,381 | 153,003 | 74,367 | 81,215 |
• Value of the apple crop
in 1997/1998: $1.6 billion
• Washington state is the
major exporting state, selling a third of its crop to international
markets
• Mexico accounts for 15% of Washington state's foreign sales (31)
• The apple industry receives a $20 million subsidy to promote overseas sales
• An estimated 42,000 illegal immigrants
work in Washington state, mostly in agriculture(32)
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see chart in economic data for exact figure
V. Environment ClustersType: N/A
Diversity: N/A
VI. Other Factors2. ABCNews. The Underground Economy [Online]. Available: http://more.abcnews.go/com/sections/us/fieldofafactory 801/index.html [1999, March 30].
3. ABCNews. America’s Invisible Workforce [Online]. Available: http://more.abcnews.go.com/sections/us/immigration main801/index.html [1999, March 30].
4. ABCNews. No Name, No Rights at Work [Online]. Available: http://more.abcnews.go.com/sections/us/industries 801/index.html [1999, March 30].
5. ABCNews. The Laws: Failure and Reform[Online].Available: http://more.abcnews.go.com/sections/us/laws801 /index.html [1999, March 30].
6. NAALC. The Commission [Online]. Available:
http://www.naalc.org/english/infocentre /whatis/whatis2.htm
[1999,March 29]
7. NAALC. The Labor Principles of the NAALC [Online]. Avaliable: http://www.naalc.org/english/infocentre/whatis/ whatis1.htm [1999, March 29].
8. NAALC. The Commission [Online]. Available: http://www.naalc.org/english/infocentre/whatis/whatis2.htm [1999,March 29].
9. NAALC. The Council [Online]. Available: http://www.naalc.org/english/infocentre/whatis/whatis3.htm [1999,March 29].
10. NAALC. The Secretariat [Online]. Available: http://www.naalc.org/english/infocentre/whatis/whatis4.htm [1999,March 29].
11. NAALC. Secretariat Functions [Online]. Available: http://www.naalc.org/english/infocentre/whatis/whatis5.htm [1999,March 29].
12. NAALC. The NAOs [Online]. Available: http://www.naalc.org/english/infocentre/whatis/whatis6.htm [1999,March 29].
13. NAALC. Signatory Countries’ Obligation Under the NAALC [Online]. Available: http://www.naalc.org/english/infocentre/whatis/whatis7.htm [1999,March 29].
14. NAALC. Levels of Treatment Under the NAALC [Online]. Available: http://www.naalc.org/english/infocentre/whatis/ whatis8.htm [1999,March 29].
15. International Labor Rights Fund. Press Release, May 27, 1998. Washington: International Labor Rights Fund, 1998. Available: http://www.laborrights.org/e-pressrel/prapples.html [1999, March 20].
16. Moore, Molly. “Mexican Farmhands Accuse U.S. Firms; Panel Hears Washington Apple Pickers”. The Washington Post, 3 Dec. 1999, A36.
17. International Labor Rights Fund. Press Release, May 27, 1998. Washington: International Labor Rights Fund, 1998. Available: http://www.laborrights.org/e-pressrel/prapples.html [1999, March 20].
18. Iritani, Evelyn. “Mexico Charges Upset Apple Chart in U.S.”. Los Angeles Times, 20, August 1999, D2.
21. Department of Labor. Public Report of Review of NAO Submission No. 940001 and NAO Submission No. 940002 [Online]. Available: www.dol.gov/dol/ilab/public/programs/nao/pubrep94001.htm [1999, March 30].
22. Harvey, Pharis. The North American Agreement on Labor Cooperation: A Non-Governmental View [Online]. Washington: International Labor Rights Fund, 1996. Available: http://www.labborrights.org/h-library/bockler.html [1999, April 4]
23. Lustig, Nora Claudia. NAFTA: Setting the Record Straight [Online]. Washington: Brookings Institution, October 1998. Available: http://www.brook.edu/pa/policybriefs/pb020/pb20.htm
24. Harvey, Pharis. The North American Agreement on Labor Cooperation: A Non-Governmental View [Online]. Washington: International Labor Rights Fund, 1996. Available: http://www.labborrights.org/h-library/bockler.html[1999, April 4]
25. Department of Labor. Public Report of Review of NAO Submission No. 9702 Part II: Safety and Health Addendum [Online]. Available: http://www.dol.gov/ilab/public/media/reports/nao/9702partII.htm [1999, March 30].
26. Department of Labor. Public Report of Review of NAO Submission No. 940001 and NAO Submission No. 940002 [Online]. Available:http:www.dol.gov/dol/ilab/public/programs/nao/pubrep94001.htm [1999, March 30].
27. Department of Labor. Public Report of Review of NAO Submission No. 9601 [Online]. Available: http://www.dol.gov/ ilab/public/media/reports/nao/96001.htm [1999, April 4].
28. Department of Labor. Follow-Up Report to NAO Submission # 940003 [Online] Available: http://www.dol.gov/ilab/public /media/reports/nao /940003.htm [1999, March 30].
29. International Labor Rights Fund. Press Release, May 27, 1998. Washington: International Labor Rights Fund, 1998. Available: http://www.laborrights.org/e-pressrel/prapples.html [1999, March 20].
30. United States Department of Agriculture. NAFTA
Agriculture Fact Sheet: Apples and Other Fruits [Online]. Available:
http://fas.usda.gov.itp/policy/nafta/apples.htm
[1999, April 2]
31.United States Department of Agriculture. Northern Hemisphere Apple Situation [Online}. Available: http://fas.usda.gov/htp/cicular/1997/97%/2D11/applefea.htm
32. ABCNews. America’s Invisible Workforce [Online].
Available: http://more.abcnews.go.com/sections/us/immigration
main801/index.html [1999, March 30].
