December 12, 2001 letter to U.S. Labor Secretary Elaine Chao proposing the creation of an "Evaluation Committee of Experts"

December 12, 2001

Ms. Elaine Chao
Secretary, U.S. Department of Labor
200 Constitution Avenue NW
Washington, D.C. 20210

Re: The Case of Autotrim and Customtrim,
NAO Submission 2000-01

Dear Ms. Chao:

We write to ask the U.S. Department of Labor to request the Ministerial Council of the Commission for Labor Cooperation established under article 8 of the North American Accord on Labor Cooperation ("NAALC") to convene an Evaluation Committee of Experts ("ECE") regarding the failure of the Mexican government to resolve the occupational health and safety issues raised by the petitioners in NAO Submission 2000-01, and substantiated by the U.S. NAO.

Today is the one year anniversary of the public hearing on Submission 2000-1. The failure to resolve the occupational health and safety problems documented in the submission and affirmed by the U.S. NAO causes the workers who provided testimony in the case—often at significant personal and profesional risk—to seriously doubt the efficacy of the NAALC, particularly its provisions on Ministerial Consultations.

On April 6, 2001, the U.S. NAO issued a report recommending ministerial consultations on NAO Submission 2000-01, pursuant to NAALC articles 21 and 22. In that report, the NAO concluded that ministerial consultations were needed to address the persistent failure of the Mexican government to enforce its own occupational health and safety laws at two maquiladoras, Autotrim and Customtrim/Breed Mexicana, owned by U.S.-based Breed Technologies. As further explained below, the Mexican government has now also breached its obligation under NAALC articles 20-22 to resolve, through effective ministerial consultations, its lack of enforcement of Mexico’s occupational health and safety laws. The Mexican government similarly has failed to resolve health and safety matters raised by NAO Submissions 9702 (Han Young) and 9703 (ITAPSA). Accordingly, the petitioners believe that the Mexican government demonstrates a "pattern of practice" of failing to enforce its occupational health and safety standards, as defined by NAALC article 49. Thus, convening an ECE is appropriate under NAALC article 23.

Summary of NAO Findings in the Autotrim/Customtrim Case

In its public report on the Autotrim/Customtrim case, the U.S. NAO found that, despite obligations under Mexican law, the Mexican government had failed to: conduct effective inspections; verify whether personal protective equipment and exhaust systems existed or functioned adequately; perform biological testing and personal air monitoring of exposed workers; assess whether ergonomic conditions were appropriate; ascertain whether employers had provided workers meaningful training and information about health and safety risks; impose sanctions on employers for violations of occupational health and safety rules; respond to worker complaints and requests for inspections and remedies; properly report and diagnose work-related injuries and illnesses; and pay the proper rate of workers’ compensation. The NAO took note of the respiratory, dermal, central nervous system, and reproductive problems suffered by many Autotrim and Customtrim workers, and found credible evidence to support petitioners’ claims regarding worker exposure to toxic chemicals. The NAO noted the musculo-skeletal disorders suffered by workers, and the association of these symptoms with ergonomic hazards.

The NAO’s findings were consistent with an assessment written by occupational health experts from the National Institute of Occupational Health and Safety (NIOSH) after on-site visits to the Autotrim and Customtrim plants and interviews with workers and managers. The NIOSH investigators, like the NAO, found that the Mexican government had repeatedly failed to enforce and comply with occupational health and safety laws. NIOSH determined, for example, that "workers have exposures to potentially hazardous solvents and glues by skin contact and inhalation," and that "many of the workers health complaints....such as respiratory and dermal irritation and central nervous system effects, are consistent with overexposure to these substances." NIOSH Report, March 13, 2001, p. 6. NIOSH also stated that: "the types of musculoskeletal injuries recorded on company logs and those expressed by former workers at the public hearing are consistent with the biomechanical risk factors which exist in both plants. The highly repetitive work involving awkward hand/arm positions, which we observed in both plants, has been linked to a variety of musculoskeletal disorders, including tendinitis and carpal tunnel syndrome." Id. at 3.

Based on NAO and NIOSH interviews with workers and managers, plant visits, information and analysis provided by the petitioners, responses from Breed Technologies and the Mexican government, a lengthy public hearing, and a comprehensive review of Mexican occupational health and safety law, the NAO recommended "ministerial consultations pursuant to Article 22 of the NAALC on the occupational safety and health and workers’ compensation issues raised in" Submission 2000-01. NAO Report, p. 6.

Unsuccessful Efforts to Resolve the Issues Raised in the Autotrim/Customtrim Case through Ministerial Consultations

After issuing its report on the Autotrim/Customtrim case, the U.S. NAO asked the petitioners to make concrete recommendations to remedy the violations of the NAALC and Mexican law identified in the case, which would be forwarded to the Mexican NAO for ministerial consultation. The petitioners submitted a first set of recommendations on May 21, 2001, and a more comprehensive set of recommendations with suggestions for priority action on July 6, 2001. We have attached a copy of the July 6th recommendations for your convenience.

The recommendations include the undertaking of basic measures to ensure substantive compliance with Mexican law, foster safer working conditions, better protect the health of Mexican workers, and provide fair compensation for work-related injuries and illnesses. The petitioners outlined a detailed set of recommendations to promote more effective inspection and post-inspection actions by Mexico’s Department of Labor and Social Welfare ("STPS") and Department of Health ("SSA") that would improve worker health and safety. The petitioners also urged the Mexican government to direct the country’s Social Security department ("IMSS") to perform re-evaluations of workers and former workers who were denied workers’ compensation pay or alleged under-valorization for their injuries and illnesses. Petitioners further demanded that these evaluations be conducted by medical personnel who are not connected in any way with the companies that employed the workers, that IMSS establish public, transparent criteria for these evaluations, and that the persons evaluated receive clear, detailed, written reasons for decisions in their cases.

The recommendations we submitted are completely responsive to the violations found in the Autotrim/Customtrim cases. Moreover, the recommendations are consistent with the stated purposes of the NAALC: "to protect, enhance, and enforce basic workers’ rights" including the "prevention of occupational injuries and illnesses;" "effective enforcement" of labor laws; the provision of benefits and compensation to employees who suffer work-related harms; and transparency in the administration of labor law. See, e.g., NAALC Preamble, NAALC Parts I and II, and NAALC Annex I. Our recommended priority actions, in particular, require neither a significant outlay of cash nor especially complicated planning and logistics.

More than eight months have elapsed since the NAO’s Report recommending ministerial consultations in the Autotrim/Customtrim case. December 12th marks the one year anniversary of the public hearing on the submission. Ministerial Consultations have not even been scheduled, much less conducted. Petitioners have received no response regarding the recommendations we were asked to submit, other than the U.S. NAO’s general assurances that our recommendations had been forwarded to the Mexican NAO. As far as the petitioners can tell, not a single deficiency identified by NAO and NIOSH has been corrected, and no timetable has been established to make such corrections.

Ministerial consultations on the health and safety portions of the Han Young and ITAPSA complaints have similarly yielded no substantive improvement in the enforcement of Mexico’s occupational health and safety laws.

The Need to Establish an ECE and, if Necessary, to Pursue Other Remedies under the NAALC

The petitioners believe that if the NAALC cannot provide adequate remedies in the Autotrim/Customtrim case, there is little hope for other petitions. As a result of the lack of concrete action on the case, any credibility the NAALC process ever had is quickly waning.

In the Autotrim/Customtrim case, petitioners and their advocates had the opportunity to meticulously document and analyze numerous violations of Mexican occupational health and safety laws, including the Federal Labor Law ("LFT"), the Social Security Law ("LSS"), the General Health Law ("LGS"), and the regulations and norms promulgated to implement these laws. The petitioners established that at least three federal agencies, the STPS, the IMSS, and the Health Department failed to enforce myriad provisions of these rules. Their failure to enforce also violated Mexican Constitutional guarantees regarding labor and health, and a number of internal treaties, most notably those adopted under the auspices of the International Labor Organization ("ILO"). The petitioners described this persistent failure to enforce Mexican occupational health and safety law in a 108 page complaint to which several hundred pages of addenda were attached, and a 10 hour public hearing. In addition, the petitioners detailed the serious workplace illnesses and injuries they suffered, and explained the connections between unlawful production processes and their symptoms. Both the NAO and NIOSH affirmed the validity of the petitioners’ claims.

The evidence provided by the Petitioners in Submission 2000-01 and substantiated by the U.S. NAO and NIOSH regarding the persistent failure of the Mexican government to enforce its domestic workplace health and safety laws, meets the NAALC’s requirement that an ECE be convened if a "pattern of practice" of such failure is established. See NAALC article 23. NAALC article 49 defines "pattern of practice" as a "course of action or inaction beginning after the date of entry into force of the [NAALC] and does not include a single instance or case." Submission 2000-01 documents years of repeated actions and inactions in contravention of Mexico’s health and safety laws by at least three separate government agencies, resulting in numerous harms to Mexican workers. This course of action and inaction constitutes a "pattern of practice" of failure to enforce occupational health and safety standards.

In addition to the Mexican government’s pattern of practice of disregard for its health and safety laws documented in Submission 2000-01, such a pattern of practice is demonstrated in the Han Young and ITAPSA cases. In both those cases, the U.S. NAO determined that the Mexican government had failed to effectively enforce its own workplace health and safety regulations. Ministerial consultations resulted in a ministerial agreement signed on May 18, 2000.

Given the magnitude of the health and safety violations present in the Han Young and ITAPSA cases, the agreement seemed remarkably limited. It called for holding one government-to-government session on "techniques and policies to promote compliance with safety and health laws and regulations," and disseminating general information on procedures and health and safety inspections. Yet even this modest agreement has not been implemented. Under the terms of the ministerial agreement, the activities to which the parties committed were to have been completed within 15 months of signing (i.e. by August 18, 2001). The health and safety actions prescribed by the agreement have yet to occur. Ministerial consultations on the Han Young and ITAPSA cases have not resulted in any substantial improvements in the implementation of Mexican laws.

The Autotrim/Customtrim, Han Young, and ITAPSA cases all involve companies that produce goods in Mexico for sale abroad and involve labor laws which provide enforceable rights recognized by the parties to the NAALC. Therefore, under NAALC articles 23 and 49, they are trade-related matters, and are "covered by mutually recognized labor laws."

In sum, the Autotrim/Customtrim, Han Young, and ITAPSA cases demonstrate the failure to resolve health and safety problems through ministerial consultations. The evidence in the Autotrim/Customtrim case alone reflects a pattern of practice by the Mexican government of failing to enforce occupational health and safety laws. Such a pattern of practice becomes even more obvious in light of the Han Young and ITAPSA cases. Moreover, the cases involve trade-related matters, and are covered by mutually recognized labor laws. Thus, our request meets the requirements for establishing an ECE set out by article 23 of the NAALC.

In the event that any issues remain unresolved by the ECE, we will ask the Council to convene an arbitral panel pursuant to NAALC article 29 because of the persistent pattern of failure by the Mexican government to effectively enforce its occupational safety and health standards. If the Mexican government continues to fail to enforce such standards , the petitioners intend to request financial sanctions under article 41. Given U.S. NAO findings in Submission 2000-01, its health and safety determinations in cases such as Han Young and ITAPSA, as well as the growing body of evidence regarding the failure of the Mexican government to effectively enforce its own occupational health and safety laws, we believe that continuing non-compliance by the Mexican government would clearly constitute a sustained and recurring pattern of practice of non-enforcement that would support trade sanctions.


Monica Schurtman
Associate Professor of Law
and Supervising Attorney,
University of Idaho Legal Aid Clinic

On behalf of the petitioners in NAO Submission 2000-01

cc. Lewis Karesh, U.S. NAO
Peter Accolla, U.S. NAO
Tina Faulkner, U.S. NAO
Mexican NAO
Canadian NAO
NAALC National Advisory Committee
Senator Edward Kennedy, Chairman, Senate Committee, Health, Education, Labor and Pensions
Representative Ralph Regula, Chairman of the Subcommittee on Labor, Health, Human Services, and Education
Petitioners, NAO Submission 2000-01