March 20, 2002 letter to U.S. Labor Secretary Elaine Chao protesting her refusal to convoke an "Evaluation Committee of Experts"

March 20, 2002

Ms. Elaine Chao, Secretary
Mr. Thomas B. Moorhead, Deputy Under Secretary for International Affairs
200 Constitution Avenue NW
Washington, D.C. 20210

Dear Secretary Chao and Mr. Moorhead:

Thank you for responding to our letter of December 12, 2002 asking Secretary Chao to request an Evaluation Committee of Experts (ECE) to review the failure of the Mexican government to resolve occupational health and safety issues raised in NAO submissions 9702 (Han Young), 9703 (ITAPSA) and 2000-01 (Autotrim/Customtrim). We are disappointed, however, that the Secretary has declined to request the appointment of an ECE .

We were surprised to learn from you that ministerial consultations with Mexican officials are currently underway on the Autotrim/Customtrim case, given that we, the submitters of that petition, had not even been notified that an agreement to proceed with ministerial consultations had been reached. We would appreciate a clarification from your office as to whether any meetings-other than those leading to the agreement to consult-have been held.

If ministerial consultations have actually begun, we are concerned that the Department failed to notify the submitters that the process had commenced, and to update us on its progress. The Department’s failure to communicate this information to the submitters would be contrary to the NAALC’s commitment to openness and transparency in the administration of labor law. Such a failure would be particularly troubling in light of the fact that the submitters, at the request of the U.S. NAO, filed detailed recommendations for action on the Autotrim/Customtrim case on May 21 and July 6, 2001. In connection with those recommendations, we asked to be kept apprised of the status of ministerial consultations, and pressed for inclusion of the submitters in the consultations. If no ministerial action beyond an agreement to consult have occurred, we would like to know when substantive consultations will begin, and again ask that the Department include the submitters in the process and keep us apprised of any developments.

The Department’s failure to communicate to the submitters the status of consultations is particularly disheartening to the workers and former workers who participated in the NAO process. After all, they are the ones who forged ahead despite the considerable time involved and their fear of retaliation, and who remain directly affected by the persistent failure of the Mexican government to enforce occupational health and safety laws.

Like you, we hope that ministerial consultations prove fruitful. Efforts at a consultative process, however, do not preclude convocation of an ECE. As you know, NAALC article 22 establishes the obligations of states party to resolve, through ministerial consultations, the failure of a NAFTA country to enforce its labor laws, including occupational health and safety laws. To give meaning to the NAALC, such consultations must be effective. Almost one year ago, on April 6, 2001, the U.S. NAO found that Mexico had persistently failed to enforce such laws at Autotrim and Customtrim. See NAO Report on Submission 2000-01, April 6, 2001. Any ministerial consultations that may have been held with regard to this determination have failed to yield improvements in occupational health and safety conditions at Autotrim and Customtrim. While we understand that significant improvements in the enforcement of workplace health and safety laws may take time, the submitters outlined for the NAO in letters dated May 21 and July 6, 2001 as well as in testimony at the public hearing on the submission on December 12, 2000, a number of ameliorative measures that could and should be undertaken immediately. Among others, such measures included: fair and transparent re-evaluations of worker compensation claims according to procedures already mandated by Mexican law; and fair and transparent re-inspection and monitoring of conditions at Autotrim and Customtrim/Breed Mexicana according to standards prescribed by Mexican law and as recommended made by the NAO and NIOSH. Yet neither these steps nor any others have been implemented to help advance worker health and safety. As far as the petitioners in the Autotrim and Customtrim case are concerned, consultations have not been effective. Workers have seen no amelioration whatsoever of the conditions they described in the hearing on December 12, 2000.

The NAALC contemplates the establishment of an ECE where a NAFTA country demonstrates a "pattern of practice" of failing to enforce health and safety standards. See, e.g., NAALC articles 23-26 and 49. As we explained in our December 12th letter, we believe that an ECE should be established not just because of the lack of action on the Autotrim/Customtrim case, but also because ministerial consultations have failed to resolve health and safety matters raised by the Han Young and ITAPSA submissions. In those cases, the parties completed ministerial consultations, and entered into a ministerial agreement on May 18, 2000-almost two years ago. Even the limited measures prescribed by the agreement have not been implemented, despite the 15-month deadline for completion which expired in August 2001. The Autotrim/Customtrim, Han Young, and ITAPSA cases demonstrate the inability to resolve through ministerial consultations a pattern of practice by the Mexican government of failing to enforce occupational health and safety laws.

Accordingly, we again urge the Secretary to request the convocation of an ECE to address the failure of the Mexican government to enforce Mexico’s occupational health and safety laws. We also ask again that the Department keep us informed of the substance and the progress of ministerial consultations in the Autotrim/Customtrim case, and to allow the submitters to participate in a meaningful fashion. Additionally, we would like to know whether the recommendations we submitted last year will be implemented. If the recommendations are going to be carried out, we would like to know the timetable for implementation. If the recommendations are not going to be carried out, we would like to know why.

Thank you for your attention to these very important matters.


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

Martha Ojeda
Executive Director, Coalition for Justice in the Maquiladoras

Garrett Brown
Coordinator, Maquiladora Health and Safety Support Network

Linda Delp,
UCLA Labor Occupational Safety and Health Program

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