29 Case W. Res. J. Int'l L. 321, *

Copyright (c) 1997 by the Case Western Reserve University School of Law
Case Western Reserve Journal of International Law

Spring, 1997

29 Case W. Res. J. Int'l L. 321

LENGTH: 32881 words

NOTE: WITHERED GIANTS: MEXICAN AND U.S. ORGANIZED LABOR AND THE NORTH AMERICAN AGREEMENT ON LABOR COOPERATION

Fredrick Englehart *



* The Author would like to thank Professor Hiram E. Chodosh and Professor Robert N. Strassfeld for their helpful comments and guidance, and my loving spouse, Elizabeth, for her encouragement and perseverance.

SUMMARY:
  ... The North American Agreement on Labor Cooperation (NAALC), the supplemental labor standards agreement to the North American Free Trade Agreement (NAFTA), links the promotion of fundamental labor rights with the privilege of trade. ... Accordingly, this section will trace the ascent of labor in each country and postulate reasons for the decline of each national organized labor movement, thereby providing a basis for evaluating the criticism each directs at NAALC. ... In the Sony case, the submission charged that the local CAB colluded with Sony's maquiladora and a CTM union to block the registration of a non-CTM union at the Sony plant. ... Central to the U.S. NAO review is Mexico's NAALC obligation to provide private redress and access to fair process in all aspects of labor law enforcement, including allegations of union abuse of power. ...  

TEXT:
 [*321]   [*322]   [*323] 

A society which evades its responsibility by thrusting upon the courts the nurture of the spirit in the end will perish.

--Learned Hand 1



I. Introduction

The North American Agreement on Labor Cooperation 2 (NAALC), the supplemental labor standards agreement to the North American Free Trade Agreement 3 (NAFTA), links the promotion of fundamental labor rights with the privilege of trade. 4 While it is not the first agreement negotiated by the United States that addresses social issues, the NAALC is unprecedented 5 in that it is the first trade agreement that contains a  [*324]  mechanism by which the labor practices of the United States and its trading partners may be examined on demand. 6

To initiate the review of a labor law matter arising in the territory of another country, an interested party files a public submission with the National Administrative Office (NAO), a NAALC administrative agency. 7 Progressively, the matter may be pursued through consultations among NAOs, cabinet-level or ministerial consultations, evaluations by a committee of experts, and finally through arbitration, which may result in monetary sanctions. 8 However, labor relations matters involving freedom of association and collective rights may not be carried beyond ministerial consultations. 9

NAFTA arrives at a time when the organized labor movements of the United States and Mexico are in transition. From its peak during World War II, U.S. union membership has steadily declined. Today only about one out of seven workers belongs to a labor union. 10 This Note argues that the principal causes for the decline of U.S. organized labor are its (1) overuse of the work stoppage, (2) tolerance for criminal  [*325]  infiltration, (3) philosophical decisions, and (4) tolerance for the entrenchment of internal power. 11 This conduct has caused debilitating reactive legislation and loss of public and political support.

Organized labor, as embodied by the U.S. umbrella confederation, the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) has a plethora of problems. But most observers agree that its most urgent task consists of reversing its loss of membership and thus reestablishing a significant presence in the workplace. 12 Supporters fear that if union membership and its corollary, political influence, continue their precipitous decline, organized labor soon will be irrelevant. 13 The confederation opposes the NAALC arguing that because the NAALC does not penalize violations of collective rights with monetary sanctions, these most fundamental rights are unprotected. 14

Mexican organized labor is also at a crossroads, but for entirely different reasons. For over sixty years, the Partido Revolucionario Institucional (Institutionalized Revolutionary Party, or PRI) has ruled Mexico. 15 The ruling party controls the presidency, the congress, and most state and local governments. 16 The party's labor bloc, the strongest of the three political factions that comprise the PRI, 17 historically has dominated the party, and Mexico's powerful labor confederation, Confederacion de Trabajadores de Mexico (the Confederation of Mexican  [*326]  Workers, or CTM) dominates the labor bloc and thus the PRI. 18 This proximity to the ruling party has produced an organized labor movement without an ideology of its own. 19 The PRI labor confederations have perpetuated their own political power by supporting Mexico's president whether or not administrative policy benefits workers. Indeed, many observers assert that the function of the PRI labor machine is to maintain its power; any salutary effect on wage earners is coincidental. 20 In recent years, however, this hegemony has weakened. The PRI labor bloc is losing power to other factions within the party, and recent electoral losses suggest that the PRI monopoly over political power is waning. 21

The PRI unions vigorously support NAFTA, envisioning Mexico as the beneficiary of U.S. job losses. 22 However, they oppose NAALC, arguing that Mexican workers' fundamental rights are protected adequately by Mexican labor law and presumably by the PRI unions themselves. 23 Thus far, two NAO submissions, each questioning one country's enforcement of fundamental labor rights, have resulted in ministerial consultations. 24 Those submissions provide a foundation for judging the legitimacy of labor's criticisms of the NAALC.

To provide a basis for evaluating the validity of these criticisms, Part II of this Note sketches the history of each nation's labor movement and discusses the laws that guarantee collective labor rights in each nation. Part III outlines the provisions of the Agreement that govern the NAO submission process. Part IV evaluates the two submissions that resulted in ministerial consultations. Part IV then argues that organized labor's historical view prevents it from recognizing that the NAO review process has produced positive results, and that the NAALC presents to U.S. and Mexican organized labor an opportunity to better understand and respond  [*327]  to the increasing globalization of capital. Part V suggests an amendment to NAALC that will allow complaints of persistent violations of fundamental collective labor rights to be pursued beyond ministerial consultations to the expert committee evaluation stage. This Note concludes that the NAALC presents an opportunity to each labor movement to regain a measure of lost political power; however, to exploit that possibility each organization must alter its respective historical response pattern.

II. Organized Labor and Labor Law

The modern rise to power for organized labor in the United States and Mexico began in the 1930s, 25 but over the past two decades each nation has lost a substantial measure of its once formidable political strength. 26 Unless the organizations implement material changes further degeneration is likely. Each country's labor history provides the insight and perspective essential to this Note's theme: that given each labor organization's current reserve of political power, its criticisms of NAALC are unrealistic, and neither will discover nor exploit NAALC's virtues unless it changes its historical conduct. While substantially different for each country, the historical forces that fueled organized labor's ascent, and contribute to its continuing decline, portray the contemporary character of each national labor movement. Accordingly, this section will trace the ascent of labor in each country and postulate reasons for the decline of each national organized labor movement, thereby providing a basis for evaluating the criticism each directs at NAALC.

Part A of this section demonstrates that U.S. organized labor gained legitimacy and solidified a formidable power base in approximately one decade, but notes that its power base began to deteriorate soon after its advent. The ability to strike is a necessary weapon for organized labor and the unions annealed their power by its swift and instinctive use. But during and after World War II, labor leaders called too many strikes, injuring labor's public image and prompting congressional retaliation that struck at the heart of union power. 27 Labor leaders ignored the criminal infiltration of some of the largest unions. They expelled the malefactors only after congressional investigation, leading to more debilitating legislation and further erosion of public support. 28 By philosophical predilection, U.S. organized labor directs resources at the union member instead of at the working class. 29 This singularity of focus provided a cornucopia  [*328]  of benefits for members, but detractors seized upon its adversarial elements, characterizing big labor as a villain protecting a privileged few at the expense of the many. 30 While membership and public support declined steadily over half a century, changes in the legal landscape diminished the effect of the old methods, namely the strike, sit-in, and boycott. 31 Union leadership, itself comfortably ensconced, 32 appears unable to reverse the losses. Although a first-ever, contested election for AFLCIO president reportedly invigorated U.S. labor, it is questionable whether the new regime's agenda seriously addresses the future. 33 Today, union density is less than one-half of its World War II era high and continues to fall. Membership and density figures for most industrial nations have been receding, but only France's has plunged as deeply as that of the United States. 34 Foremost among the many factors that combined to weaken labor's house are its shortsightedness and reflexive response to adversity. Little has changed. The AFL-CIO threatened politicians who supported NAFTA 35 and reviled NAALC before its first test. 36 The unions and organizations involved in the first few NAALC cases condemned the agreement after two predictable losses, and summarily repudiated it as useless, 37 betraying a continuing reflexive shortsightedness.

Part B of this section demonstrates that as Mexican organized labor's ascendancy was tied to the PRI, so is its decline. Labor achieved its political status by supporting the constitutional forces during Mexico's revolution and maintained power through its unqualified support of the party, its president, and the policies of the current administration. 38 However, Mexico's omnipresent charges of official corruption and scandal, continuing economic doldrums, and PRI electoral losses are combining to threaten PRI hegemony. If the party suffers substantial or irreparable harm, the labor unions closely aligned with it will also be harmed. 39 The  [*329]  unions' power base within the party has already been weakened already. 40 As long as they remain firmly a part of Mexico's ruling structure, the unions may boast that because they protect the interests of Mexican workers, the NAALC is an unnecessary adjunct, regardless of the truth of the assertion. But organized labor's place within Mexico's political hierarchy is changing, and labor leaders must realistically reassess its strength and determine its future direction. As the historical relationship unravels, so should the rhetoric and conduct based upon that relationship.

A. The United States

1. Organized Labor's Ascent

The 1935 National Labor Relations Act 41 (NLRA), enacted after decades of labor strife, 42 gives workers the right to form, join, or assist labor organizations; the right to bargain collectively; 43 and the right to strike. 44 Six years after passage of the NLRA, World War II provided the crucible from which the labor leaders of the day fashioned a strong national organized labor movement. 45

After the attack on Pearl Harbor, President Roosevelt's order of January 12, 1942 established the National War Labor Board (WLB) and gave it jurisdiction over industrial relations to facilitate war production. 46 The WLB, a product of President Roosevelt's labor-friendly New Deal, 47 commanded recalcitrant employers to sign collective bargaining agreements, 48 allowed a version of the closed shop; 49 and due to restraints on  [*330]  wage increases, 50 expedited the inclusion into labor agreements of manifold fringe benefits, 51 all of which contributed to labor's ascendancy. 52 Union membership had reached its zenith, increasing from 13.2% in 1935 to 35.5% in 1945. 53 But labor's tenure at the top was to be short-lived.

2. Organized Labor's Decline

a. The Strike

Shortly after the United States officially entered World War II, President Roosevelt received from labor a no-strike pledge. President Roosevelt also received a no-lockout pledge from management concerning labor disputes that might erupt in industries vital to the war effort. 54 During the early war years, labor generally honored its pledge by minimizing strikes and slowdowns, consenting to longer working hours, relaxing work rules, and striving to increase production. 55 But in 1943, strike and lockout activity increased, 56 and a particularly acrimonious  [*331]  work stoppage in the bituminous coal industry undertaken in defiance of the President and the WLB prompted Congress to enact the War Labor Disputes Act 57 over President Roosevelt's veto. 58 The legislation provided for imprisonment of up to one year and or a fine of up to $ 5,000 59 for a strike or lockout undertaken in an industry the president seized or operated pursuant to his war powers. 60 Public sentiment had turned against organized labor over the wartime strikes. 61 Immediately after the war a crippling wave of strikes swept the country. 62 Labor's no-strike pledge had expired, and it was time to offset the austerity of the war years. 63 Additionally, the production cutbacks occasioned by the  [*332]  war's end meant less take-home pay, and the unions demanded wage increases to recoup the lost income. 64 The strikes tended to affect key industries with enormous numbers of employees, and often directly affected the public. 65 There were major strikes in public utilities causing brownouts, and in public transportation paralyzing cities. Another coal strike led to a sympathy railroad walkout. Steel, oil, automobile, rubber, lumber, textile, glass, packing house, shipyard, and longshoremen's unions all struck. 66 The national feeling produced by these strikes was that labor had become too strong; that its power needed equalization; and that the unions had not assumed responsibility to their members, the public, or to industry that accompanied the rights guaranteed by the NLRA. 67

The 1946 congressional elections produced unfriendly Republican majorities in both houses of Congress, 68 and President Truman called for labor law reform in his State of the Union Message. 69 The direct statutory result of the wave of work stoppages 70 was the Taft-Hartley Act of  [*333]  1947, 71 which sharply curtailed the rights labor had enjoyed since the passage of the NLRA only twelve years earlier. Taft-Hartley's more significant provisions excluded supervisors from the definition of employee, 72 gave workers the right to refrain from participating in union activity, 73 outlawed the closed shop, 74 instituted a complex process for representation elections, 75 and created an abundance of unfair labor practices by labor organizations. 76 But the substantial restrictions Taft-Hartley placed on it were not organized labor's only problem: one year earlier Congress had passed a racketeering statute aiming to curtail extortion in trucking.

b. Criminal Infiltration

A few years after a U.S. Supreme Court decision involving extortion by a New York Teamsters Local, 77 Congress amended an anti-racketeering statute to include the growing problem of labor racketeering. 78 The result was the 1946 Hobbs Act. 79 Five years later, U.S. Senator Estes Kefauver headed a committee 80 investigating organized crime in interstate commerce, but spent little time on the labor link. 81 Then in 1957, to probe the misuse of union funds and other corrupt practices of  [*334]  labor and management, the U.S. Senate appointed the Select Committee on Improper Activities in the Labor or Management Field, better known as the McClellan Committee after its chairman, John L. McClellan. 82 The McClellan Committee focused on the Teamsters Union and two of its presidents, Dave Beck and James R. Hoffa. 83 The well-covered confrontations between McClellan's chief counsel, Robert F. Kennedy, and the pugnacious Hoffa 84 captured the nation's attention. 85 The McClellan Committee's work led directly to the enactment in 1959 of the LandrumGriffin Act, 86 which regulated the internal and financial affairs of unions. 87 Also called the union members' bill of rights, Landrum-Griffin established internal union election procedures, provided union members with access to the internal processes of their union, and required both labor and management to comply with financial reporting provisions. 88

Thirty years later, a presidential commission investigating labor and management racketeering reported that in the area of labor racketeering, nothing much changed for organized crime except the extent of its domination and the end of its influence; 89 a clear and historical partnership between organized crime and organized labor goes back thirty years; 90 and the infiltration of labor unions by organized crime is visible to the world. 91 Although labor racketeering by most accounts is confined to a small proportion of organized labor, 92 its colorful characters and sensational  [*335]  public revelations have undermined the public's confidence in collective bargaining, labor leaders, and organized labor. 93 In addition to this ample mass of self-induced problems, organized labor has suffered an identity crisis almost from the beginning.

c. Philosophical Decisions

Samuel Gompers, the first president of the AFL, aimed the nascent labor movement away from political involvement toward twin doctrines that became known as "volunteerism" and "pure-and-simplism." 94 Volunteerism held that political action, such as the sponsorship of legislation and the endorsement of political candidates or parties should occupy a minor place in labor's strategy because the well-being of workers is best guarded and advanced by union activity. 95 Pure-and-simplism echoed Gompers' political sentiment that the goal of a labor organization is the pure and simple issue of better wages and working conditions. 96 This early philosophy, although textured and amended by the vagaries of time and opportunity, produced an American labor movement slow to adapt to changes such as the increase of racial minorities and women in the workforce and the national economy's shift from manufacturing to services and technology. 97  [*336] 

Another effect of Gompers' doctrine was American organized labor's rejection of the Marxist concept of class struggle. 98 Although segments of the labor movement often flirted with labor militancy, and the history of the CIO cannot be told accurately without reference to its early socialist and communist influences, the movement at large ultimately rejected class-conscious political radicalism. 99

Just after World War II, when the labor movement was at its peak, 100 an influential and forward-looking young labor leader made a decision, albeit not altogether of his own choosing, that profoundly affected organized labor's future direction. The industrial unions of the CIO wanted to extend the scope of collective bargaining into areas that management considered its exclusive sphere. In 1945, young Walter Reuther, spearheading the United Automobile Workers' Union (UAW) collective bargaining negotiations with General Motors Corporation (GM), proposed a thirty percent wage increase that was not to be offset by a corresponding increase in the price of GM automobiles. When GM declared the two proposals incompatible, Reuther demanded that GM open its books to substantiate the claim. 101

Reuther's price control proposal had two objectives. First, he hoped to enlist the support of consumers and the general public through this anti-inflationary measure. Second, he strove to expand labor's sphere by this incursion into management's territory. 102 GM's resistance was fierce,  [*337]  and Reuther called a strike that idled 175,000 workers in ninety-five plants.

The Truman administration, struggling with postwar industrial reconversion and a crippling wave of strikes, 103 appointed a fact-finding board; however, GM refused to participate on the ground that its ability to pay was neither UAW nor government business. 104 GM won the issue after a 113-day strike. Reuther, undercut by powerful factions within organized labor who did not understand his long-term view, 105 abandoned the price control proposal. American labor has not attempted seriously to broaden its sphere since. 106

d. Entrenched Power

Since its founding in 1886, the AFL 107 has had only six presidents. 108 Over that time, two of the Western world's most enduring  [*338]  institutions, the British Empire and the Roman Catholic Church respectively, have had six and nine leaders. This fact illustrates the depth of entrenched power extant in organized labor, and provides a useful background against which to assess the AFL-CIO's susceptibility to change. Indeed, some reformers within the U.S. labor movement accuse the current leadership of resisting change, referring to them as dinosaurs who only care about perpetuating their own power. 109

3. Summary

While no empirical data show that strikes have lost their effectiveness, 110 organized labor's reliance upon work stoppage has decreased dramatically over the last fifty years. 111 In February 1996, the U.S. Department of Justice announced that it had signed a consent decree guaranteed open elections with the over 400,000 member Laborers International Union of North America. 112 The laborers union was one of four major unions singled out as corrupt by a Presidential commission in 1985. 113 The other three are the Hotel Employees and Restaurant Employees International, the International Longshoremen's Association, and the International Brotherhood of Teamsters. 114 The Justice Department began supervision of the hotel and restaurant union in September 1995, and the Teamsters have been under a Federal court-imposed decree since  [*339]  1989. 115 To date, the government has not directed court action at the Longshoremen's Union International, but a number of union officials have been prosecuted individually, and the government filed civil racketeering actions against six longshoremen's locals in New York and New Jersey in February 1990. 116 The long-term effectiveness of these measures remains to be seen, but observers regard the Teamsters clean-up as a success. 117

In the waning months of 1995, the AFL-CIO conducted its first contested presidential election since the AFL and CIO merged forty years earlier. 118 New president John Sweeney's immediate priority 119 is to reverse a half-century decline in union membership that has seen union density 120 drop from over one-third of the workforce during the World War II era 121 to a low of 16% in 1994. 122 President Sweeney unveiled a blueprint for rebuilding the labor movement that focuses on organizing and directs increased emphasis on political action such as strategic campaigns, public affairs, education, and training. 123 Skeptical observers remain unpersuaded that the new philosophical push will have any effect given the magnitude of the problem. 124

The corrosive effects of the reflexive use of the strike, the tolerance of criminal infiltration, philosophical decisions adopted by leaders like Gompers and Reuther, and the conversion of high office into personal sinecure, could have been mitigated by responsible, forward-looking leadership. As organized labor's numbers swelled, so did its concomitant store of power and political influence. Its reflexive, shortsighted use of that power furnishes the theme for its decline. Now, perhaps fatally weakened by declining membership, union leadership can no longer afford to act reflexively, but must reassess its responses and tactics with a view  [*340]  to the long term that includes a searching evaluation of the tools at hand. NAALC is one tool that should be used more.

B. Mexico

1. Organized Labor's Ascent

The primary source of Mexican labor law is Title VI, Article 123 of the Mexican Constitution of 1917. 125 Ley Federal Del Trabajo 126 (the Federal Labor Law, or FLL), is the secondary source of Mexican labor law. 127 The FLL covers individual 128 and collective 129 rights, employment rights and obligations of both workers and employers, 130 working conditions and standards, 131 strikes, 132 and procedure. Because it is grounded in the constitution, the application of the FLL is national in scope. Interpretive variation may exist from state to state through the operation of the various adjudicatory fora, primarily the nation's labor tribunals called the Conciliation and Arbitration Boards 133 (CABs). Treaties entered into by the government on constitutional authority provide the third major source of Mexican labor law. 134 Foremost among such treaties are the seventy-six International Labor Organization (ILO) Conventions that Mexico has ratified since it was admitted as an ILO member in 1931. 135

Like the constitution, the influence of labor in contemporary Mexican politics also can be traced to the 1910-1920 Mexican Revolution. 136  [*341]  During the power struggle between the Villa-Zapata forces and the constitutionalists after the dictator Porfirio Diaz was overthrown, the labor organizations confederated as the Casa del Obrero Mundial (House of the World Worker, or Casa). They supported the eventually victorious constitutionalists under future president Carranza and the men who would succeed him: Obregon and Calles. 137 Casa did not survive the continuing turmoil of the ongoing revolution. The confederation called a general strike which so angered Carranza that he crushed and disbanded this organization and solicited the establishment of another more pliable labor coalition, the Confederacion Regional Obrera Mexicana (Regional Confederation of Mexican Workers, or CROM). 138

For eight years CROM was the trusted labor ally to Presidents Obregon and Calles, proving its loyalty by breaking the strikes of opposition labor organizations. 139 CROM's influence eventually receded but one of its former leaders, Vicente Toledano, forged another labor alliance that eventually became the CTM. 140 To unify the myriad revolutionary interests during the 1930s, 141 President Cardenas organized the PRI and divided the party into three blocs: the labor bloc, consisting of the official trade unions and confederations; the agricultural bloc, consisting of the farmers; and the popular bloc, consisting largely of government employees and their organizations. 142

At present, the PRI's labor bloc is organized under the Congreso de Trabajo (Congress of Labor, or CT), whose most influential members are the CTM, CROM, and the Confederacion Regional de Obreros Mexicanos (Regional Confederation of Mexican Workers, or CROC). 143 The CT primarily functions as a coordinating body and wields little if any power, requiring of affiliates not much more than their participation in CT councils. 144 The forum supplied by the CT acts as a safety value for union leaders who wish to publicly proclaim their outrage against government  [*342]  austerity policies that they actually support. 145 Since Cardenas, the CTM has sustained a dominating influence within the CT and the labor bloc and thus within the party. 146 Because of this proximity, the CTM has developed a philosophy that may be described as the defense and promotion of party and government policy 147 as construed by the president in power. 148 The CTM alternately has supported the labor-friendly policies of the leftists and the centrists as well as the policies of rightist presidents closely aligned with business interests and capital. 149

2. Organized Labor's Decline

a. Corruption

Corruption is threatening the PRI as Mexico attempts to enter mainstream twentieth century commerce as a modern nation. President Ernesto Zedillo (1994-present), inherited a party that is on the brink of a severe institutional crisis. 150 According to testimony before the U.S. Senate Foreign Relations Committee, corruption has so infected the government bureaucracy over the last twenty-five years that today the entire system is infiltrated with organized crime. 151 Perhaps the most flagrant example is Raul Salinas, the previous president's brother, whose foreign bank accounts total approximately $ 100 million, and who is under arrest, accused of murdering the PRI Secretary-General and perhaps a congressman. 152  [*343] 

President Zedillo promised to replace corruption and graft with the rule of law. 153 He symbolically chose his Attorney General from the opposition party, 154 the Partido de Accion Nacional (the National Action Party, or PAN). However, many doubt Zedillo's resolve. Some observers insist that the new president conducts business as usual, citing as an example, the deal he made not to investigate his predecessor, Carlos Salinas. 155 A watchdog group monitoring Zedillo was refused an accounting of the $ 90 million that is budgeted to his office and under his control despite the president's promise of governmental openness. Furthermore, with Zedillo's support, the PRI reneged on promised electoral reform. President Zedillo's clean-up efforts also have been characterized as lethargic. He is accused of delaying a demand that two PRI state governors step aside. One governor is accused of outrageous campaign spending law violations; the other is tainted by acts of officials in his administration who were implicated in covering up a police massacre of seventeen peasants. 156

Corruption also infects the CABs, the federal and local boards charged with hearing labor disputes. The CABs are staffed by representatives from labor and management sitting in equal numbers with one government representative, 157 but most of the labor seats on the CAB are gifts of political patronage from the CTM. 158 The CTM's stature as the PRI-backed confederation of official unions and its influence over CAB personnel cannot be denied. 159 Most independent non-CTM unions are apolitical and thus tolerated, but others are leftist and considered a destabilizing force. 160 Repression is not unknown. 161 Due to the dominance  [*344]  of CTM appointees on the boards, CAB decisions resolving conflicts between a radical independent union and an apolitical independent union or between a radical independent union and a CTM affiliate, will disfavor the radical if possible, prompting legitimate charges of bias and corruption. 162 The U.S. Embassy reports that while charges of corruption, strong-arm tactics, sweetheart deals, and the active frustration of true union organizing efforts have some validity, they are not the predominant pattern. 163 The Embassy also reports that the government and the major labor confederations neither encourage nor sanction such acts, but instead work to eliminate them. 164 A less systemic CAB problem is bribery, 165 where the incentive is not political but pecuniary, and which may be instigated by either management or union at the expense of the aggrieved worker. 166

Another corrupting influence stemming from Mexico's one-party system is the corruption of the judiciary, 167 including the judiciary's composition. The pool of candidates from which judicial appointees are chosen consists of those people the PRI endorses or considers reliable. While overt decisional manipulation is rare, the political reality cannot be ignored. 168 More abstractly, judicial decisions that are not compatible with official PRI positions lack an independent power base and are not sustainable. 169 The PRI has survived amid charges of official corruption for decades, 170 but a new element is surfacing to further complicate the picture: the PRI seems to be losing a measure of power to another political party.

b. Electoral Losses

Recent electoral losses threaten the PRI from the outside. In the allegedly tainted 1988 presidential election, Carlos Salinas was elected president of Mexico by the narrowest margin in PRI history. 171 Although  [*345]  another PRI president was elected in 1994, the conservative PAN party continues to gain influence. 172 In the 1995 state of Baja California gubernatorial election, the PAN defeated the PRI in consecutive elections for the first time by successfully defending the governorship it captured in 1989. 173 Also in 1995, the PAN defeated the PRI in three of four elections, and the one PRI victory in Yucatan was tainted with allegations of electoral fraud. 174 In 1996, parties opposing the PRI won mayoral races in five of the seven largest municipalities in the country's most populous state of Mexico, but the PRI retained control of the state legislature and Ecatepec, the state's biggest city. The PAN presently controls four governorships, about 175 municipalities, over twenty percent of the seats in the General Congress, and hopes to elect a PAN president in the year 2000. 175

c. Economic Hardship

While Mexican organized labor has been a ubiquitous political power for over sixty years, that power has not always benefitted Mexican wage earners. 176 Mexican wages, which were approximately one-quarter of the wages earned in the United States in 1975, slipped to one-tenth by 1985, 177 and at present are even lower. 178 Inflation for 1995 was around 50%, 179 further eroding the purchasing power of stagnant wages. The unemployment rate, which hit a record high in August 1995 has been  [*346]  dropping, but experts say that the economy was so badly damaged by the 1994 peso collapse that an upturn is inevitable. 180

Traditionally, May Day is a day of labor celebration, marked by a parade in Mexico City and various ceremonies of revolutionary zeal. The government, however, canceled the 1995 parade, prompting speculation that the CTM leadership was afraid to be so close to so many workers because of economic malaise. 181 The 1996 parade, held as scheduled, more closely resembled an anti-government protest than a celebration of worker solidarity. These events indicate that organized labor's instrumentality has never been weaker, and the historic relationship between labor and the PRI is unraveling. Further indications that the historical interdependence is deteriorating are found within the party itself.

Shortly after taking office in 1988, President Salinas, a free market advocate, began moving against some of the strong, official unions. He challenged the powerful petroleum workers union whose leader was ultimately convicted of financial impropriety, illegal possession of firearms, and involvement in the death of a federal agent. The union leader was ultimately imprisoned for a period of thirty-five years. 182 Salinas transferred the responsibility for education from the federal to the state governments, weakening the school teachers' union. 183 His administration's privatization of many formerly state-owned businesses cost the unions approximately 400,000 jobs. 184 On the eve of NAFTA implementation, President Salinas announced an increase in the national minimum wage and for the first time tied it to productivity, 185 lessening the clout of the official labor unions who traditionally negotiated such increases. Other key structural policies adopted by the Salinas administration weakened the PRI-CTM relationship. These policies include: (1)  [*347]  efficiency measures in the state-run railroad (Ferronales) and oil company (Pemex) that resulted in massive layoffs; (2) adoption of a plant-by-plant collective bargaining negotiation regime in derogation of the former industry-wide method; and (3) enactment of the inflation-fighting Economic Stability and Growth Pact (PECE) which capped wages and prices. 186

The Zedillo administration announced the successor agreement to Salinas' PECE, the Pact for Economic Welfare, Stability, and Growth (PBECE), and the CTM again agreed to participate, 187 but later reneged on the promise. 188 In response to the 1994 peso crisis, President Zedillo began soliciting foreign buyers for Mexico's big banks, and initiated a new cycle of privatization that featured the sell-off of ports, airports, and railways. 189 Additionally, the PRI recently effected an internal realignment that cost the labor bloc a substantial portion of its power within the party. 190 The beneficiary is the popular bloc which is spearheaded by two groups, Movimiento Popular Territorial (the Popular Territorial Movement) and Frente Nacional Ciudadana (the National Citizens Front). 191

3. Summary

The PRI's sixty-year power monopoly may be cracking under the combined strain of a grim economy, systemic corruption and scandal, and election losses. 192 To Mexico's official labor unions what should be more important than whether the PRI's official demise is forthcoming is the effect of the genuine structural economic changes of Presidents Salinas and Zedillo that inevitably will unravel the fabric that has bound organized labor to the seat of political power for most of this century. 193  [*348]  Meanwhile, the PRI's internal reconfiguration further depreciates the political capital of the labor bloc within the party. The CTM's repudiation of the austerity pact and the cancellation of the May Day celebration may be signals that the official unions are positioning themselves for a break with the party. But whether the posturing is genuine or contrived remains a question. In any event, whatever it once was, the CTM is no longer the guardian of workers' rights that its anti-NAALC position asserts.

Mexican organized labor, like the AFL-CIO, is responsible for most of its current problems. From its historical position of power, the Mexican labor movement developed methods of action and response that arguably served it well. Supporting the party rather than the interests of workers and crushing independent unions seemed to guarantee continuing power for the leadership. The splintering of labor's power base, however, coupled with the growing internationalism of capital should demonstrate that the old tactics and posture are no longer useful. Like the AFL-CIO, Mexican organized labor must realistically reassess its position, determine its future direction, and adjust its tactical behavior toward that future. The next section evaluates NAALC and argues that it presents each labor movement with an opportunity to better understand and respond to the evolving order.

III. The NAALC 194

Predicting the wholesale deportation of U.S. jobs to Mexico, the AFL-CIO mounted a massive campaign in opposition to NAFTA. 195 The  [*349]  trenchant opposition caused a rift between the labor confederation and President Clinton, the first Democratic Party president in twelve years. The Clinton administration negotiated the NAALC and appended it to the trade agreement to mollify organized labor, a traditional party ally. 196 The administration promised to deliver an Agreement with "real teeth," but the package left organized labor unsatisfied. 197 The basis for the dissatisfaction lies in NAALC's drawn out procedural steps and in the separate adjudicatory tracks it establishes. 198 Complaints that allege violations of core collective rights, such as freedom of association, union organization, and collective bargaining, are not subject to monetary penalty, while those alleging violations of technical labor standards, such as forced labor, minimum wages, and workplace health and safety, are subject to monetary sanction. 199

The history of NAALC confirms that although all three signatory Parties have an NAO and each may allege violations against any other, NAALC's true purpose was to assuage U.S. concerns about the potential loss of jobs due to much lower Mexican wage rates. 200 Thus, NAALC does not offer U.S. organized labor a method to replenish its membership rolls because NAALC focused on U.S. job loss, not the decrease in union  [*350]  membership. NAALC also does not offer official Mexican labor unions a means to recoup and retain power. Indeed, the NAFTA debate at times focused on the close relationship between the Mexican government and official unions and its resulting effect on labor law enforcement, independent unions, and authentic workers' rights. 201 However, when viewed objectively, NAALC provides the process that promotes the transparency 202 of domestic labor law enforcement. Perhaps more abstractly, NAALC introduces unions to the international process of treaty creation, thereby providing education as to various national legal systems. This expertise will become increasingly necessary as the rapid movement of capital through global trade continues to transform the world economy. 203

A fair reading of U.S. organized labor's criticism of NAALC reveals the interlaced notions that labor is only interested in an instrument that will produce immediate and concrete results, and thus labor finds no value in understanding international processes. This position ignores present reality and perpetuates the conduct that has landed labor in its current predicament. Accordingly, this section of the Note outlines the provisions of NAALC that describe its oversight and dispute resolution procedures as a prelude to the evaluation of the two submissions that have resulted in ministerial consultations.

A. Purpose

The objectives of NAALC include improving working conditions and living standards, promoting increased production and quality, encouraging data sharing and cooperative labor-related activities, and promoting compliance with and effective enforcement of domestic labor laws. 204 NAALC acknowledges the right of each signatory nation to adopt its own labor laws, 205 but commits each to the promotion of the fundamental principles of freedom of association, the right to organize unions, the right to bargain collectively, and the right to strike, subject to its own  [*351]  domestic labor laws. 206 NAALC is more than aspirational. The Parties specifically agree to promote compliance and enforcement of domestic labor laws through appropriate government action, 207 to ensure aggrieved parties have access to labor tribunals, 208 and to ensure that labor tribunals are fair and equitable in their adjudication and transparent in their process. 209 Oversight mechanisms are aimed at enhancing the public's understanding of labor laws and the transparency of enforcement rather than punishment through trade sanctions. 210 Sanctions exist, but are contemplated to be applied only upon the failure of cooperation and consultation, expert evaluation, negotiation, and arbitration. 211

B. Administration

The public face of NAALC resides in the National Administrative Offices which are domestic institutions established by each Party to administer the agreement. 212 The NAO is principally responsible for coordinating tri-national cooperative activities, providing information to the public, and receiving and reviewing public submissions on labor matters arising within the territory of another Party. 213 Each NAO is empowered to establish its own domestic procedures for reviewing public submissions. 214 Faithful to the spirit of cooperation and consultation that permeates NAALC, 215 the U.S. NAO refers to the filings by private parties alleging persistent unenforced violations of labor law as submissions, not as complaints. 216  [*352] 

C. Procedure

1. Level One: Submission Through Ministerial Consultations

The chief officer of the U.S. NAO is the Secretary of the NAO. 217 U.S. NAO procedure allows "any person" to file a public submission regarding "labor law" matters arising in the territory of another Party, 218 and requires that each submission be signed and specify the matters of the alleged complaint. 219 The submission also should state the harm suffered, the action contrary to the Party's obligations under NAALC, whether the submitter 220 has sought relief through domestic proceedings or through another international body, and that the subject matter of the submission appears to demonstrate a pat