Tequila J. Brooks, Labor Law Advisor, Commission for Labor Cooperation Secretariat

National Hispanic Forum on a Safe and Healthy Environment

Orlando, Florida, October, 2000

The North American Agreement on Labor Cooperation, more widely known as the NAFTA Labor Side Agreement, turned 6 this year. Old enough to graduate kindergarten and enter the first grade. The NAALC obligates Canada, Mexico and the United States to effectively enforce their labor laws.

Not everyone would agree that the NAALC, as it is known among those of us who work with it on a daily basis, was "penned with the greatest technical skill" or "passed with the fullest and most mature deliberation". The NAALC was born amidst turmoil and was shaped by a battle of Titans, buffeted by competing interests of Big Labor, Big Business, the United States, Mexico and Canada. The NAALC, like the US Constitution’s Bill of Rights or the Mexican Constitution’s Article 123 positing basic labor rights as constitutional rights, is a new law – "more or less obscure and equivocal" until its meaning is "liquidated and ascertained" by discussion and adjudication.

The usefulness and impact of the NAALC will come clear with time. Thomas Jefferson declared in 1776 that "all men are created equal" but it took over 200 years, a civil war, enactment of the 13^th, 14^th and 15^th constitutional amendments, passage of the Section 1983 Civil Rights Act, witnessing the race and creed based atrocities of World War II, and the courage of civil and human rights activists like Martin Luther King, Jr., Cesar Chavez and Dolores Huerta in the 1960’s and 1970’s to get us where we are today.

Yet even with the passage of Title VII, the creation of the EEOC, the overturn of Jim Crow laws in the southern states, the establishment of fair employment practices agencies in 46 of the US states and the District of Columbia – the Daily Labor Report reported last week that 10,000 more claims of discrimination were filed annually during the 1990’s than were filed in the 1980’s, and that inadequate funding levels hamper the EEOC’s capability to deal with its growing workload. In Mexico, granting constitutional status to workers’ rights to freedom of association, collective bargaining, minimum standards, freedom from discrimination, equal pay for women and men, occupational safety and health and workers’ compensation did not guarantee that all Mexican workers would enjoy these rights 83 years after the Mexican Revolution.

And it has to be mentioned that the imperfection of Jefferson’s language still causes women to wonder whether we, too, are included in his definition of "men." Some of our employers wonder, too. In the United States, despite the passage of the Equal Pay Act in 1963, women still earn 72-83 centers for every dollar a man makes. Most Canadian jurisdictions have adopted laws applying the principle of equal pay for work of "equal value" or of "equal or comparable value," yet just last summer 47,500 nurses went on strike in Quebec because of the low salaries they received in comparison to men in similar fields. Despite constitutional protections, many women in Mexico must submit urine or blood samples to prove they are not pregnant before they will be considered for jobs in factories along the border. Just last year the San Francisco District Office of the EEOC obtained a $1.855 million class action settlement for latina immigrant women farmworkers who were sexually harassed by their supervisors while working for a major vegetable grower in California.

James Madison wrote that human beings, being imperfect creatures, create imperfect institutions. We write words and call upon ideas that we are sometimes unable to fully fathom or posit into reality – like Thomas Jefferson, a slave-owner, ironically announcing that all men are created equal.

"Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties," wrote Madison, "the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspecuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctively and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas."

Sometimes the words we use will have deeper and fuller meanings to those who come after us. "All men are created equal," meant one thing to Thomas Jefferson and possibly another to Martin Luther King, Jr. , another to Cesar Chavez, and another to Norbert Schlei, an assistant Attorney General assigned by President John Kennedy to head the committee that prepared the first draft of the 1963 Civil Rights Act which contains Title VII, the main federal act prohibiting discrimination in employment based on race, gender, color, religion and national origin.

So the language of the NAALC, which means one thing to those of us who read it today, will mean something different to those who read it 50 years from now.

The NAALC establishes an international body called the Commission for Labor Cooperation and three bodies housed in the countries’ Departments of Labor called "National Administrative Offices." The Commission has two parts: a Council and a Secretariat. The Council is composed of the Secretaries of Labor of Canada, Mexico and the United States. The Secretariat, where I work, is an international office that does comparative legal and economic research in support of the Council.

The Secretariat produced the only study (to my knowledge) that sets forth in one place the laws impacting migrant agricultural workers in Canada, Mexico and the United States, including a description of the pesticide laws that exist in the three countries. I hope you will look at this study, because the topic of pesticides and agricultural workers is one in which all of the issues important to everyone in this room intersect: the environment, workers, public health, human rights and free trade.

When you read the Secretariat’s study, you will notice some striking differences in the way that each of the countries organize enforcement of pesticide laws. The laws of all three countries require that employers provide workers with clean water and soap if they suffer from pesticide poisoning. The countries organize the laws differently institutionally, however. For instance, in the United States, the Environmental Protection Agency alone enforces pesticide laws, and the Occupational Safety and Health Agency is prevented from doing so by law. In contrast, the Mexican government established a multi-agency committee that sets pesticide standards. This multi-agency committee includes officials from the Departments of Agriculture, Environment, the Agricultural Day Worker Program, and Labor, as well as representatives from both worker and employer organizations. One thing the work we do at the Secretariat has taught me is that the countries have so much to learn from each other. Seeing how another country organizes its laws provides a good vantage point for reconsidering one’s own laws.

I urge you to drop by the Secretariat’s information table and talk to my colleague María Dolores Cox to learn more about the NAALC. The NAALC establishes a procedure for filing public communications alleging that a NAALC nation has not effectively enforced its labor and employment laws – something many of us have no doubt encountered. I just want to make clear that the Commission for Labor Cooperation Secretariat itself does not take public communications. It differs from the Inter-American Commission on Human Rights and the Commission on Environmental Cooperation that way. The National Administrative Offices in each of the countries are responsible for reviewing these public communications. If a violation occurs in Mexico, the communication is filed in Canada or the United States. If it occurs in the United States, the communication is filed in Mexico or Canada. Amazingly enough, Canada, Mexico and the United States agreed to allow their colleagues in the other nations to review and interpret the way they enforce their own labor laws.

Public communications have been filed relating to women and men organizing unions in factories in Mexico, McDonald’s workers organizing unions in Canada, and Mexican and other Latino workers picking apples in the state of Washington and packing eggs in the state of Maine.

No law that sets forth a new set of ideas or challenges set notions about the social compact has an easy time coming into existence. Many of the laws and rights we take for granted today were forged in the same kind of hostile conditions that forged the NAALC. In the United States, laws regulating minimum wage, maximum hour and other basic labor standards were passed by state legislatures in the early decades of the 20^th century and were declared unconstitutional and in violation of the freedom to enter into contracts. Early statutes governing child labor were struck down as unconstitutional. It wasn’t until 1938 that a federal Fair Labor Standards Act was passed that managed to survive scrutiny by the United States Supreme Court. Even that law was not perfect, and has been amended numerous times since its passage. Nor has it been an easy task to enforce the Fair Labor Standards Act. Willis Nordlund’s book, The Quest for a Living Wage, documents the US Department of Labor’s struggle to enforce the Fair Labor Standards Act from the very birth of the Law.

The birth of the federal Occupational Safety and Health law was even rockier – that law did not come into existence until 1970, over 50 years after Mexico established occupational safety and health as a constitutional right.

I do not know how the NAALC will be viewed in history’s eyes – whether it will be like the Articles of Confederation, overturned in favor of a more enlightened document, or will be viewed to be as enlightened as the Constitution itself. I do know that the NAALC can be a tool for workers’ rights even with all of its flaws. All of you and I can and must read theNAALC with the inspiration of now deceased Supreme Court Justice Thurgood Marshall – interpreting the language through the eyes of an unseen future where governments are better able to protect their citizens and where the spirit of the laws are a reality, not just ideas on paper.