The world of the border turns labor law on its head-old, established legal rights are just so much ink on paper, and even the decision of federal judges to enforce the law are simply ignored. NAFTA’s labor and environmental “side- agreements” have provided no help to either labor or the environment.
I. Industria Fronteriza
Tijuana’s oldest maquiladora closed last year.
It didn’t fall victim to the dreaded Chinese competition, confounding a wave of near-hysterical alarms in south-of- the-border newspapers, warning that the days of all Mexico’s factories were numbered. Instead, Industria Fronteriza owed its demise to a more prosaic cause: women stopped wearing nylons.
For almost four decades, seamstresses in this sprawling sweatshop churned out what was once the height of haut couture. Starting in the mid-1960s, the sleek hosiery caressing the slim legs stalking down New York’s fashion runways passed through the rough working hands of hundreds of Mexican women bent over machines on a sweaty, deafening factory floor within a stone’s throw of the U.S.-Mexico border.
Given changing styles, perhaps the company’s end could have been easily predicted. Plans might have been made for easing these veterans of needle and thread into jobs in some other border sweatshop. Or they might have been trained to fill one of the high-value-added positions that policy wonks insist should, and will, replace the old labor-intensive jobs that started the industrial gold rush here 40 years ago.
Traditional Mexican labor law would have helped the dislocation of these seamstresses. Since the 1930s, when radicals wrote the country’s labor legislation (and made it a model throughout Latin America), the Federal Labor Law has called for something U.S. workers would love to have: severance pay. A week’s pay for every year at the machine seemed only just to the reformers of that more egalitarian age.
For today’s seamstresses, a little money to pay for training programs, some severance pay to live on and a government interested in finding new jobs for older workers might have made quite a difference.
Not in the world of the border. This world turns labor law on its head – old post-revolutionary legal rights are just so much ink on paper, and even the decisions of federal judges to enforce the law are simply ignored.
What actually happened at Industria Fronteriza, however, is strange even by Tijuana standards. First, workers got no notice that the company was planning to close. In itself, that’s not unusual in a city and an industry where shops are suddenly emptied of their machines in the dead of night, leaving people to show up for work at the doors of a vacant shell the following morning. Second, Industria Fronteriza employees belonged to a pro-company charro union, whose casual lack of concern for their welfare was the source of many prior industrial battles. That’s not unusual either.
What distinguishes the Industria Fronteriza experience, however, is that in the spring of 2003, the company conspired with the charro union and staged a strike against itself. The sole purpose of the phantom strike was to provide a legal obstacle to the implementation of the severance pay requirement, and leave the workers with nothing. Mexican law says that in the event of a strike, the claims of the striking union must be satisfied before a company can close. Since the official closure of Industria Fronteriza was a precondition to distributing severance pay, the declared strike stopped the compensation process in its tracks. That was pretty extreme, even considering the long-established practice along the border of allowing factory owners to get away with virtually anything.
Throughout Mexico, factory owners sign “protection contracts” with pro-government and pro-company unions, called sindicatos charros. The phrase originally referred to unions led by Luis Morones, a Mexican labor leader from the 1920s. Morones was famous for dressing up like a cowboy, or charro. A notorious conservative in the Mexican labor movement, he signed sweetheart agreements with employers; consequently, workers “celebrate” his memory by referring to company unions as “charro unions.” Protection contracts and charro unions are the primary system of labor control for foreign corporations that have built factories on the border. This system allows them to pay extremely low wages, even by Mexican standards, and to maintain dangerous and even illegal working conditions, with little fear of organized worker resistance.
JesÃºs Campos Linas, the dean of Mexican labor lawyers, says that thousands of such contracts in Mexico are arrangements of mutual convenience among corrupt unions, the government and foreign investors who own the factories. “Companies,” he explains, “make hefty regular payments to union leaders under these contracts and in return get labor peace.”
Over the two years following the closing of Industria Fronteriza, a lawsuit by the workers ground through the courts. Finally, four workers, who had been illegally fired in June 2002, won a decision forcing the Tijuana Labor Board to tell the company to collectively pay the workers $50,000 in severance. Of course, the company didn’t pay, so the workers had to get another order, this one requiring that the board confiscate the sewing machines, industrial steam irons and the other equipment left in the abandoned factory.
On December 7, 2004, the workers stood ready at the gate, having come with a truck, forklifts, a lawyer from Mexico City and supporters to carry the equipment out. They had even reserved a storeroom in the maquiladora workers’ barrio of Maclovio Rojas to house the confiscated machines. But the charro union stood at the door of the plant prepared for a hostile confrontation with about 40 people, including former company supervisors, holding big sticks ready to start a fight with the workers.
They needn’t have bothered. When a Labor Board official noticed a strike flag in the door of the factory, he refused to perform the confiscation because a “strike” was in progress. Workers pointed out that the charro union itself had ended its phantom strike, but the labor board just needed a pretext. In a shouting match back at its downtown offices, Labor Board president RaÃºl Zenil y Orona refused to discuss any further action against the company, and he announced to the workers that the confiscation would never happen.
In some ways, the workers were lucky they didn’t end up in jail. Baja California is the free-trade state, where the advanced guard of Mexican industry and commerce live by a set of rules that the rest of the country is only beginning to adopt. In Baja, challenging the cabal of managers, government officials and compliant unions that set these rules provokes a grim and dangerous hostility. The state’s prisons have been home to many activists from the social movements of “los de abajo,” the people from below.
During the two strikes of Han Young workers in 1998 and 1999, the first legal strike by an independent union in the maquiladoras, strike leaders Enrique HernÃ¡ndez and JosÃ© PeÃ±aflor spent months slipping through the shadows from office to hidden office, seeking to avoid arrest. Julio Sandoval, a leader of indigenous migrant farm workers, spent three years in an Ensenada prison for leading land invasions to secure farm workers a place to live. Hortensia HernÃ¡ndez has been held in Tijuana’s prison almost as long for fighting for land and housing for the city’s maquiladora workers in the Maclovio Rojas barrio.
Laboring in the border’s vital factory heart, Margarita Avalos describes the grinding economic pressure driving these social movements. Avalos worked at Industria Fronteriza for two and a half years, and remembers her time ironing the sleek garments sewn by her friends: “In the factory, the administration was really authoritarian. They screamed orders. They threw on the floor the things we needed to use. They forced us to work extra time, and if we couldn’t do it, they said they wouldn’t pay us for any of the time we worked at all. Sometimes I had to work 24 hours straight, even going without eating, in order to get out the orders they demanded. The chemicals and the heat were hard on my body, and for those of us who were pregnant, it was even worse.”
For that, Avalos was paid $65 a week. If she really churned out the nylons and bras the way the managers wanted, she could make another $30, but that meant ironing a lot more than the standard 2,000 pieces in an eight-hour shift, or one every 15 seconds.
RaÃºl RamÃrez, Baja California’s Human Rights prosecutor, faults the government’s desire to protect investment above all else. “The authorities don’t care about the poverty of these communities, or their social problems like lack of housing or drug addiction. But they are very concerned with the question of the land titles of the large landholders. They want to take care of their investments. So the government uses the law, the police, even the army. They say this provides safety and stability for investors. And they abandon the poor.”
The social cost of this policy, RamÃrez says, can be found in Baja California fields on any given day during the harvest season, when workers pick tomatoes and strawberries for U.S. supermarkets. Whole families work together in these agricultural maquiladoras – children alongside adults. FÃ©lix, a 12-year-old boy picking cilantro in Maneadero in June 2003, said his parents were making about 70 pesos a day (a little over $6), while he was bringing home half that. “We can’t live if we all don’t work,” he said, in the tone of someone explaining the obvious.
At wages a tenth of those paid for the same job in Los Angeles, it might seem fair if maquila workers only had to pay a tenth of L.A. prices for food, rent or any of the basic necessities of life. But that’s not the world of the border either. Two years ago a group of New England nuns, who organized the Center for Reflection, Education and Action (CREA), did an exhaustive survey of border prices. They found that for a kilo of rice, a Tijuana maquiladora worker had to labor for an hour and a half. Even an undocumented worker bussing dishes in Beverly Hills at minimum wage can take the same rice home with only 10 minutes’ pay.
As usual, what appears to be a legal problem – in this case the enforcement of labor laws – is really about money. It’s a recipe for confrontation, and all along the border economic pressure is fueling a wave of industrial unrest.
The National Labor Policy of Mexican President Vicente Fox caters to investors, not minimum-wage maquila workers. In 2001, the World Bank recommended rewriting Mexico’s Constitution and Federal Labor Law, eliminating protections for workers in place since the 1920s [See "Escalating Struggles over Mexico's Labor Law," p. 16]. The new law would drop mandatory severance pay and stipulations that require companies to negotiate over factory closures. No longer would employers have to grant permanent worker status after 90 days, limit part-time work or abide by the 40-hour week. And the law would also eliminate the historical ban on strikebreaking. Mexico’s guarantees of employer-paid job training, health care and housing, would be scrapped as well. Essentially, these recommended changes would institutionalize in the rest of Mexico the kind of labor relations that already exist, on the ground, in the maquiladoras.
Fox embraced the Bank’s report, calling it “very much in line with what we have contemplated.” The recommendations were so extreme that even the head of a leading employers’ association, Claudio X. Gonzalez, called them “over the top,” noting the Bank didn’t dare to make such proposals in developed countries. “Why are they then being recommended for the emerging countries?” he asked.
In Mexico City, JesÃºs Campos Linas, the labor lawyers’ dean, was appointed to head the local labor board by left-wing Mayor AndrÃ©s Manuel LÃ³pez Obrador. Campos Linas rejects Fox’s argument that gutting worker protections will make the economy more competitive, attract greater investment and create more jobs. “Mexico already has one of the lowest wage levels in the world,” he charges, “yet there’s still this cry for more flexibility. The minimum wage in Mexico City is [less than $4] a day – no one can live on this. And [in 2002] we lost 400,000 jobs. Changing the labor law will not solve this problem.”
Tiburcio PÃ©rez Castro, professor of education at the National Pedagogical University, accuses the Baja California government of only enforcing those provisions of the law that protect private property. “There’s a law guaranteeing people the right to health care, but no one has any,” he notes bitterly. “There’s a law which protects the right to food, but thousands of people go hungry every day.”
So in the end, according to PÃ©rez Castro, the rule of law itself is in question in Baja California, “at least insofar as it protects people, especially the poor, in the enforcement of their rights. They pass laws to protect the maquiladoras, so the rule of law exists in that sense,” he admits. “But there is a danger to social stability, because it’s so one-sided.”
Whose priorities will prevail in Mexico, those of workers or those of free-trade investors? “The changes proposed by the Bank would be a gigantic step backwards for workers,” Campos Linas emphasized. “The bankers don’t understand that it took a revolution – a million people died – to get our constitution and labor law. Our problem isn’t that we need a new law; it’s to enforce the one we have.”
In Baja California, the free-trade state, that’s not so easy.
In early September 2002, the coalition for Justice in the Maquiladoras (CJM), a group that brings together unions, churches and community groups in the three NAFTA countries, put out a call to border activists, urging them to act quickly to salvage one of the few remaining complaints filed under the North American Agreement on Labor Cooperation (NAALC): the case of mistreated workers at the Customtrim and Autotrim plants.
What followed that call, and the ultimate fate of the Customtrim/Autotrim complaint, is not only a stark illustration of the failure of the NAALC, but also a grim warning. As the Bush Administration pushes hard for the Central American Free Trade Agreement (CAFTA) and the Free Trade Area of the Americas (FTAA), free trade’s defenders argue that the rights of workers in Central and South America under these agreements can be protected in much the same way that the NAALC protected the rights of workers in Mexico. The bitter experience of the workers at Customtrim/Autotrim and their supporters, however, indicates that exactly the opposite is true. Labor protections embodied in the NAALC not only failed in this one case, but in every other effort made by workers to use the same mechanism to protect their health, their safety and their rights at work. Basing protection for workers in future agreements on this experience condemns them to the same fate.
The labor cooperation agreement is usually referred to as the labor side-agreement to the North American Free Trade Agreement (NAFTA). It set up a process that free-trade supporters argued would protect the health, safety and labor rights of workers in the three NAFTA countries – the United States, Mexico and Canada. Under the side- agreement, workers, unions and community organizations could file complaints if worker protection or health and safety laws were not being enforced. NAFTA also had a second side- agreement, the North American Agreement on Environmental Cooperation. Its process, similar to that of the labor side- agreement, supposedly allowed communities to file complaints over cases of environmental contamination.
Both agreements were crucial to residents of the U.S.- Mexico border, since violations of labor rights, dangers to worker health and safety, and extreme cases of environmental contamination have been commonplace in this region since long before the agreements were proposed. These problems are a result of a longstanding development policy in which both the Mexican and U.S. governments encouraged corporations to relocate production to border factories, or maquiladoras, by creating a border zone within which labor protection, health and safety, and environmental laws were essentially not enforced. By 2001, more than 2,000 such factories were employing more than 1.3 million people, and border cities like Tijuana and JuÃ¡rez had mushroomed into industrial urban centers with over a million residents each.
The CJM’s urgent call of September 2002 was motivated by its learning of a secret discussion between U.S. and Mexican government officials, held in the San Diego Convention Center, supposedly to find ways of protecting the safety and health of maquiladora workers. From the perspective of the activist group, the secret meeting highlighted just how empty the promises of the side- agreements have been. The first problem was that the workers themselves, the very victims of the conditions that the side-agreements were intended to remedy, were excluded from the process.
Workers at the Customtrim and Autotrim plants, owned by the U.S. auto-parts giant Breed Technologies, had filed a complaint that they had been systematically exposed to toxic chemicals at work in violation of Mexican health and safety laws. The sickest ones were referred to by management as “junked workers” and were forced to labor in a special area. When workers began organizing an independent union to protest, the most active participants were fired, a violation of Mexican labor law. Complaints to the authorities went nowhere, and workers filed a case under the labor side- agreement, assisted by the CJM along with U.S. health and safety activists.
The body responsible for resolving the workers’ complaint – the Binational Working Group on Occupational Safety and Health – organized the San Diego meeting, but the discussion inside the convention center was really about dumping the workers’ case, not resolving it. A year before, a report issued by the National Administrative Office of the U.S. Department of Labor concluded that extensive violations of Mexican health and safety laws had taken place in the two Breed Technologies plants in Matamoros and Valle Hermosa.
Workers testified at the hearing that prompted the report, risking their jobs and ensuring that they would be blacklisted for years. Independent health and safety experts from both countries had also submitted massive documentation. Workers and their supporters thought there was yet a chance that, for the first time, monetary penalties might be imposed on Mexico for not enforcing its own laws, since the side- agreement allows for heavy fines in cases of health and safety violations.
In the end, however, the secret and exclusive San Diego meeting proved to be the only actual outcome of the NAFTA process. The meeting was “a charade and a disgrace,” fumed CJM director Martha Ojeda. “Instead of specific, effective action to improve conditions at Autotrim/Customtrim, and throughout the maquiladora industry along the border, the injured workers are promised ‘chats’ between government officials whose refusal to listen and to act was the exact basis of the complaint in the first place,” she railed.
By 2002, the number of new complaints filed under the labor side-agreement had slowed to a trickle and finally to none at all. Under President Clinton, appointees to the National Administrative Office of the Department of Labor, which is responsible for hearing evidence on complaints, often tried to maintain at least the appearance of a commitment to workers’ rights. For some judges, like Irasema Garza, who took testimony from Customtrim/Autotrim workers, that commitment was more than just appearance. With the Bush Administration, however, the United States has ceased to even bother with pretense. Bush’s unmistakable message was that any effort to restrain trade and investment was politically wrong- headed. And for his part, Mexican President Vicente Fox did nothing to change the basic hostility to the appeal process evidenced by his predecessors.
The problem with the side-agreement process, however, isn’t the attitude of the public officials responsible for administering it, although they often make it clear that even an appearance of fairness depends on the political will of the administration in power. Whether liberals or conservatives hold office, in Washington, Mexico City or Ottawa, they are all committed to corporate-defined free trade. Enforcing labor rights and environmental protections runs contrary to the purpose for which NAFTA was negotiated – creating conditions favorable to investment.
The Bush Administration is simply more open in its embrace of this goal and sees nothing wrong with making money from low wages and relaxed controls over pollution. This attitude will also be the hallmark of the agreements designed to extend NAFTA southward – CAFTA and the FTAA. Mindful of the Customtrim/Autotrim case, those considering their positions relative to CAFTA and the FTAA should heed the warning by Connie Garcia of the San Diego-based Environmental Health Coalition as she stood outside the closed San Diego meeting: “NAFTA fails to protect workers or the environment. Its terms should not be reproduced in new agreements.”
The move to hold a secret hearing on the Customtrim/Autotrim situation surprised no one, and most border activists saw it for what it was – a last gasp of the NAFTA side-agreement process sputtering to a halt.
III. Metales y Derivados
Metales y Derivados is an abandoned battery recycling plant sitting on the lip of Otay Mesa adjoining Tijuana. Standing outside the plant walls on the chemical- encrusted ground, it’s possible to look over the mesa’s edge and see people moving about in the working-class barrio of Chilpancingo below. There, six years earlier, the Border Region Workers’ Support Committee (CAFOR) and the Citizens’ Committee for the Restoration of CaÃ±on del Padre had documented the growing number of children born with anencephaly; i.e., without brains. Two of CAFOR’s Mexican organizers, Eduardo Badillo and Aurora Pelayo, along with their U.S. supporters were stopped from making annual counts of the growing number of cases after the issue began to appear in the press. But enough data had been accumulated, they believed, to cite Metales y Derivados as a likely source of the pollution causing the horrific birth defect.
In 1998 the San Diego-based Environmental Health Coalition (EHC) and the Citizens’ Committee in Tijuana filed a case under the environmental side-agreement. They alleged that Mexican authorities hadn’t enforced environmental laws against the plant’s owners, the New Frontier Trading Corporation, based in San Diego. Staff working for the North American Commission for Environmental Cooperation (NACEC) investigated the complaint and reported their findings in February 2002.
Their study documented the illegal storage of 7,000 tons of toxic waste and the presence of lead, arsenic and heavy metals in the soil surrounding the defunct plant. It also mentioned an inconclusive survey of lead contamination among Chilpancingo residents conducted by a team from the University of California at Irvine. Cesar Luna, the lawyer who headed the EHC’s border project at the time the case was filed, documented one case of anencephaly himself and heard reports from residents of at least half a dozen others.
But NACEC staff had no power to investigate the actual health conditions in Chilpancingo, and no official record of contamination existed because Mexican authorities never conducted a health survey in the barrio. They had good reason not to do so. Reports of anencephaly had been increasingly frequent in industrial communities all along the border, but the lax enforcement of environmental laws is an important, albeit unspoken, means for attracting new factories. A scandal about children without brains might discourage any future flow of investment.
So just as in the labor case, that was it. “All we got was a report, and an incomplete one at that,” grumbled EHC policy advocate Connie Garcia. “Nothing changed on the ground. NAFTA provides for no cleanup plan or enforcement mechanism, and the community continues to be poisoned,” she charged.
[David Bacon is a freelance writer and photographer; he writes regularly on labor and immigration issues. His latest book is The Children of NAFTA: Labor Wars on the US/Mexico Border (University of California Press, 2004).]