Newsletter of U.S. Labor Education in the Americas Project, an ILRF Program

Winter 2014

Fighting for worker justice in the global economy

ALMOST THERE! Gift from Landau Foundation brings the Stephen Coats Memorial Fellowship closer to reality.

Dear Friends,

Over the past year, we have been amazed by the level of commitment that USLEAP supporters like you have shown to continuing USLEAP’s mission of supporting across the Americas. We’re excited to inform you that we are closer to securing funding to initiate a Stephen Coats Memorial Fellowship, which will support a full-time position for a recent law school graduate to directly with USLEAP’s partners in Latin America to support trade union rights and decent working conditions. We’ve just received a $12,500 grant from the Landau Family Foundation, which is a big vote of confidence for our vision of a legal fellow to work directly with trade unions and labor rights advocates across the Americas to utilize trade policy tools, including labor chapters in existing free trade agreements, and mount strategic campaigns to advance labor rights in the region. The fellow will be supported by ILRF’s legal, policy, and campaign team to maximize the effect of their work. Please help us get the Fellowship fully funded so we can leverage U.S. trade policy and push for legal remedies for our partners. All donors who give $75 or more will receive ILRF’s limited release 2015 wall calendar “Presente: She Is Here With Us,” honoring women garment workers from Latin America and around the world who make our clothing.

In solidarity,

Judy Gearhart Eric Gottwald Executive Director USLEAP Program Coordinator

Viewpoint From Honduras: CAFTA, Forced Immigration, Deportation Connections

In his latest Huffington Post blog, Larry Cohen, President of the Communications Workers of America and a longtime supporter of both ILRF and USLEAP, describes the economic devastation accelerated by CAFTA, where Honduran farmers, displaced by the growing palm oil industry, are forced to migrate to the US. More than 100 of them are shackled and deported each day, returning to a country known for its high murder rate and characterized by high unemploy- ment, poverty wages, and constant violations of organizing rights. Visit http://tinyurl.com/ncol343 to read the article. Peru: USLEAP meets with textile and garment unions to discuss possible FTA complaint

In October, USLEAP coordinator der the pretext of not renewing their ers on short-term contracts (some as Eric Gottwald travelled to Peru to short-term contracts for “economic short as 15 days) on an indefinite basis. meet with Peruvian textile and gar- circumstances.” Union leaders em- The meeting resulted in an agreement ment union leaders in Lima during phasized how the textile and garment that ILRF@USLEAP will review the their annual strategic planning event. companies, many of whom produce special labor law and concrete cases During the visit, Eric heard first-hand for popular U.S. and European brands of employer abuse as the basis for a accounts of how Peruvian textile and like New Balance and Under Armour, potential complaint under the labor garment companies routinely fire operate under a special labor law chapter of the U.S.-Peru Trade Promo- trade union leaders and activists un- which allows employers to hire work- tion Agreement.

Guatemalan unions open dialogue with government on unresolved murders of trade unionists

Under intense international pres- be investigated and prosecuted. Organization into its failure to enforce sure, the Guatemalan government has The agreement was announced Convention 87 on Freedom of Asso- allowed the UN Commission Against weeks after a coordinated campaign by ciation, which has specifically focused Impunity in Guatemala (CICIG) to USLEAP, BananaLink, and the Brit- on the state’s failure to investigate review a handful of unsolved cases of ish Trade Unions Congress, generated and prosecute cases of murder against murdered trade unionists. over 6,000 emails demanding that the trade unionists. The result of meetings between government of Guatemala take con- SITRABI is also engaged in a SITRABI, the country’s largest union crete steps to investigate and prosecute productive dialogue with the Public of banana workers, and CICIG, the cases of violence and murder against Ministry about a possible agreement agreement provides a ray of hope that trade unionists. with the trade union movement on at least some of the 68 cases of mur- Guatemala also faces an open in- concrete measures to protect the right dered trade unionists since 2007 may vestigation by the International Labour to .

U.S. LABOR EDUCATION in the AMERICAS PROJECT @ ILRF Winter 2014 Sindicalista bajo amenaza: Jorge Iván Vélez Calvo

Since the 1990s, the Colombian received a package that included an government has pursued an economic invitation to his own funeral and a policy of market liberalization and bullet with his name on it. privatization of public utilities. In the The U.S. Congress approved the southern Colombian city of Cali, labor FTA only after the administrations of and community organizations, such President Barack Obama and Colom- as the Sindicato de las Empresas Mu- bian President Juan Manuel Santos de- nicipales de Cali – SINTRAEMCALI veloped a Labor Action Plan to address (Municipal Workers Union of Cali), concerns about Colombia’s poor labor have been fighting to retain public rights record. Among other reforms, control over their utilities. When the action plan promised to expand many other Colombian municipalities Colombia’s protection program for privatized their utilities, including gas, labor activists under threat of violence water, and energy, large numbers of and increase the institutional capacity workers were fired and utility prices of the Attorney General’s office to activists even though violence against soared. reduce impunity and accelerate action SINTRAEMCALI had increased and Due in part to its success in leading on anti- cases. the union was demanding greater pro- the resistance to the privatization of Additionally, in April of this year, tective measures from the government. Cali’s public utilities, SINTRAEM- a Colombian court ordered President Jorge wants all of SINTRAEMCA- CALI’s leaders and members have Santos and Vice President Angelino LI’s leadership and its Claims Com- been under attack for over a decade. Garzón to publicly apologize to SIN- mission protected by the government Many union members have received TRAEMCALI for the previous admin- because they all face the same risks. death threats (fifteen have been forced istration’s attacks and slander against After the union office was firebombed, to flee Cali), some were blacklisted the union under Operation Dragon. Jorge and two other leaders received from , and eight have been Despite the Colombian government’s bodyguards and bulletproof vests. assassinated. rhetoric and reforms, however, SIN- Yet the government did not provide In 2004, under President Álvaro TRAEMCALI and other unions sufficient funds to hire a protective Uribe, members of SINTRAEMCALI, continue to be the targets of violence. vehicle, a necessity for union leaders labor rights activists, and Since the court order, threats directed who are particularly vulnerable to defenders were targeted in a detailed at SINTRAEMCALI’s leaders have armed attacks while travelling by car. assassination plot and defamation increased. Since the attack on José’s , the campaign known as “Operation Drag- Five days after the court order, and government has assigned him similar on.” The plot was developed by retired around the three year anniversary of protective measures and promises to members of the military, private con- the Labor Action Plan, SINTRAEM- deliver an armored vehicle shortly. tractors, and hired assassins to sup- CALI’s office in Cali was firebombed. While the current administration press the union’s advocacy for labor The attack was recorded by a security of President Santos has taken steps rights and stance against privatization. camera, but the Attorney General’s towards fulfilling the Labor Action In addition to planning assassinations, investigation has yet to produce any Plan, threats and violence continue to the plotters falsely associated the results. Jorge is frustrated that even be common tools of union repression. union with guerilla groups to publicly with video evidence no suspect has Over the last decade, SINTRAEM- discredit the union’s leaders and make been detained and the authorities seem CALI has lost over forty percent of its them military targets. to be inattentive to the case. membership, but Jorge and its leaders Jorge Iván Vélez Calvo, President On May 21, José Ernesto Reyes, remain committed to fighting priva- of SINTRAEMCALI, has been threat- Vice President of SINTRAEMCALI, tization and violations of workers’ ened with death numerous times for and his family were roused from bed rights: “The people of Cali support our defending the rights of Colombian by noises outside their home. They work because they know we’re fight- workers and working with interna- found their car set ablaze. When José ing not only for the union, but also for tional human rights organizations. attempted to put out the fire, a flame the right of the community to control In 2012, less than one month before caught his body and burned his legs. its own public resources.” the U.S.-Colombia Free Trade Agree- José was not protected under Colom- ment (FTA) entered into effect, Jorge bia’s program for threatened labor

Winter 2014 U.S. LABOR EDUCATION in the AMERICAS PROJECT @ ILRF USLEAP takes on Equitable Origins certification of notorious union-buster Pacific Rubiales as a “sustainable” producer of oil and gas in Colombia

On September 9, Equitable Origins, (USO), which presented a collective In coordination with the USO and a new organization that purports to bargaining proposal to the company. AFL-CIO, USLEAP has sent a formal certify “sustainable” producers of oil Pacific Rubiales responded by creat- letter of protest to Equitable Origins, de- and natural gas, announced that it was ing its own company-controlled union, manding an explanation of how Pacific bestowing its first certifications on two UTEN, and forcing USO members Rubiales was certified under Equitable Colombian sites owned and operated by to resign their membership and join Origins EO 100 standard, which requires Pacific Rubiales. the UTEN or be fired. In the end, the respect for fundamental labor rights, The announcement was met with as- company fired more than 3000 USO including freedom of association and the tonishment by labor and environmental members in a blatant effort to destroy right to . advocates alike, as the company has a the union. We will continue to highlight this long and well-documented history of The company has also reportedly case as yet another example of a social violating Colombian laws, including engaged in strong arm tactics, includ- certification scheme whose commitment workers’ fundamental right to freedom ing colluding with state security forces to fundamental labor rights appears to of association. and pressuring the Colombian govern- exist only on paper. USLEAP was alerted to the certi- ment to muzzle USO leadership by fication by the Unión Sindical Obrera criminally charging them under vague (USO), a Colombian union that has laws that have been used to criminalize faced violent repression for organizing social protest. In late 2013, four USO workers at several of Pacific Rubiales’ leaders—including Héctor Sánchez— oil and gas fields. were charged with criminal conduct for Photo: Protesters in Colombia hold a In July 2011, more than 5,000 work- their roles in the 2011 work stoppage banner denouncing the anti-union ac- ers walked off the job at Pacific Rubiales at Pacific Rubiales. Colombian courts tivities of Pacific Rubiales, a Canadian to demand better working conditions, eventually dismissed the charges against oil company operating in Colombia. pay, and union representation. More than all four, but only after holding them in Photographer: Projet Accompagnement 4,000 joined the Unión Sindical Obrera detention for periods of six to 13 months. Solidarité Colombie (PASC).

U.S. LABOR EDUCATION in the AMERICAS PROJECT @ ILRF Winter 2014 Justice delayed…the long road of the Guatemala CAFTA complaint In September, the United States ment was taking the necessary steps to arbitral panel to dismiss the case on Trade Representative (USTR) an- address the systematic failures. procedural due process grounds. The nounced that it will finally proceed to On July 30, 2010, USTR announced government argued that it did not have arbitration against the Government of that it would proceed with the trade sufficient notice and specification Guatemala, more than six years after enforcement case against Guatemala of the alleged failures of labor law a complaint was filed alleging that by requesting formal consultations enforcement. The claim was prepos- Guatemala was violating the labor under Chapter 16, the first labor case terous, in light of years of intensive standards contained in the Central ever initiated against a trade partner. discussion, “action plans” and “road American Free Trade Agreement Finally, in August 2011, after the maps” laying out the problems and (CAFTA). formal labor consultations failed to what needs to be done about them. The announcement is welcome yield significant improvements, USTR But arbitration is a highly legalis- news for advocates of binding labor announced it was ready to proceed to tic procedure, and arbitrators tend standards in agree- arbitration of the dispute, a process to be conservative about deciding ments and, more importantly, for Gua- that could require Guatemala to pay cases when procedural issues are temalan workers who continue to wait fines of up to $15 million per year unresolved. In sum, advocates might for their government to enforce even into a fund earmarked for projects to have to wait even longer for results in the most basic labor laws. It also marks improve labor rights enforcement. this landmark case. the first time the U.S. government has Yet at that decisive moment, the proceeded to the arbitration phase for U.S. government blinked, agreeing to Violence against trade unionists not a complaint alleging violations of the yet another delay while both govern- covered under CAFTA labor chapter of a free trade agreement. ments negotiated a “labor enforcement Not surprisingly, the CAFTA la- However, a review of the com- plan,” which was not signed until April bor complaint against Guatemala plaint’s history raises troubling ques- 2013. When Guatemala missed the prominently features cases where tions about the ability of FTAs to enforcement plan’s one year imple- violence (including murder) is used deliver justice to workers denied their mentation deadline in February 2014, as a tool to intimidate trade unionists fundamental labor rights. USTR granted an additional four from organizing and asserting their month extension. Only after Guate- rights in the workplace. According The slow road to justice mala could not meet this final deadline to a widely-cited annual survey by the On April 23, 2008, six Guatemalan did USTR announce, once again, that International Trade Union Confedera- trade unions and the AFL-CIO filed it was ready to proceed with the arbi- tion, Guatemala has become the most a complaint alleging that the Gov- tration process. dangerous country in the world for ernment of Guatemala was failing On November 3, 2014, the United trade unionists: at least 64 union lead- to enforce its domestic labor laws, States submitted a seventy-page brief ers have been killed since 2007. highlighting cases of anti-union dis- to the arbitral panel in the Guatemala Two cases cited in the CAFTA com- crimination, unscrupulous employers case. The panel is composed of one plaint involve the brutal murders of refusing to pay minimum wages and member chosen by the United States union leaders and threats of violence provide legally-required benefits, and (an American trade law specialist), one against union organizers. During an a systematic failure to investigate member chosen by Guatemala (a Gua- ongoing labor dispute, the General and prosecute violence against trade temalan constitutional law specialist) Secretary of the Port Quetzal Com- unionists. and a neutral chair chosen jointly (a pany Workers’ Union (STEPQ) was In January 2009, the U.S. Depart- Canadian law professor familiar with shot roughly twenty times in front of ment of Labor issued a report finding international trade and labor rights). his children by a group of assailants systemic failures in the enforcement of The U.S. brief cited dozens of cases -- yet the Guatemalan authorities made Guatemalan labor laws, but declined in which Guatemala failed to effective- virtually no effort to prosecute anyone to invoke formal labor consultations ly enforce its labor laws. Employers for the crime. Likewise, the Special (the first step under CAFTA towards denied inspectors entry to workplaces, Prosecutor’s Unit for Crimes against enforcing a complaint), instead pro- and nothing happened. Employers Unionists and Journalists refused to viding the Guatemalan government refused to pay fines, and nothing hap- investigate the murder of a leader of with an initial six month period to pened. Courts ordered reinstatement the Izabal Banana Workers’ Union address the issues raised in the report. of workers fired for organizing, and (SITRABI), who was killed on com- In a pattern that would repeat itself, nothing happened. Authorities denied pany property amidst numerous cases the U.S. granted multiple extensions registration to newly-formed unions, of attacks against SITRABI members. on this initial deadline, despite little and nothing happened. Shockingly, seven members of SI- evidence that the Guatemalan govern- For its part, Guatemala asked the TRABI have been murdered since the

Winter 2014 U.S. LABOR EDUCATION in the AMERICAS PROJECT @ ILRF union co-signed the CAFTA complaint link global trade to respect for inter- should include express language in 2008. national labor rights. Indeed, labor concerning the obligations of each However, any hope that the com- rights provisions are no longer placed party to investigate and prosecute plaint would squarely address violence in unenforceable “side agreements,” cases of violence against trade and impunity was severely under- but are now fully enforceable on par, unionists. mined by a little known, controversial at least in theory, with commercial • Faster, clearer process: As seen by USTR policy that violence against issues. But as the long journey of the the Guatemala complaint process, trade union leaders is not a violation Guatemala CAFTA complaint shows, governments often fail to meet their of CAFTA’s labor chapter. there is more work to be done to make promised deadlines with no conse- Though never announced publicly, the promise of labor chapters real for quences, creating endless delays and the policy is clear from a review of workers denied their fundamental denying justice to workers. Future USTR’s statements on the Guatemala labor rights. FTAs should establish harder dead- complaint, which conspicuously omit Below are some recommendations lines, limiting the number and dura- violence against trade unionists from for advocates and policymakers inter- tion of extensions before a case must the formal list of issues where the ested in making labor chapters more be resolved or proceed to arbitration. Government of Guatemala is failing effective: • Obligations for companies, not just to meet its obligations under CAFTA. • Targeted fines: Rather than being governments: Future FTAs should This means that, whatever decision paid by the foreign government (of- incorporate the labor provisions is eventually made by an arbitration ten out of scare tax revenues), fines of the OECD Guidelines for Mul- panel, it will not address what is argu- should be targeted at the specific tinational Enterprises and the UN ably the most pressing issue facing the private employers who are repeat- Guiding Principles on Business & Guatemalan labor movement: the sys- edly violating the labor laws and Human Rights to hold multinational tematic use of threats and violence by benefitting economically from the companies, not just governments, Guatemalan employers to intimidate violations. accountable for upholding interna- union organizers and their supporters. • Trade sanctions: CAFTA was nego- tional labor standards. Whatever USTR’s reasons for tiated in 2006, before a 2007 trade- • Create a secretariat: FTAs should adopting this policy, it appears to be labor template made trade sanctions back up a commitment to workers’ at odds with established International (not just fines) available as a remedy rights by establishing a permanent Labour Organization (ILO) jurispru- for labor rights violations. This secretariat or observatory (the dence recognizing an essential link “hard law” remedy must be main- name does not matter) to monitor between fundamental human rights tained in labor chapters of future and report on labor developments and the effective exercise of freedom trade agreements, and if possible in parties to the agreement. Such a of association: renegotiated by CAFTA parties. body could: “...freedom of association can only • A role for civil society: Current 1. review and evaluate multinational be exercised in conditions in which FTAs shunt trade unions, NGOs and companies’ internal systems of fundamental rights, and in particular other civil society actors to the side due diligence, communication and those relating to human life and per- after they file a complaint. Moving management of the firm’s social sonal safety, are fully respected and a complaint through the performance; guaranteed, and the rights of workers’ dispute resolution system, policy 2. conduct an annual Labor Informa- and employers’ organizations can only choices, legal arguments and other tion Audit on the state of labor be exercised in a climate that is free decisions are entirely in govern- rights and labor standards in firms from violence…” ments’ hands. So is appearance and involved in transatlantic trade and It’s also fair to question whether this argument before arbitral panels: investment (noting, for example, interpretation of CAFTA is consistent civil society organizations and even whether firms have been found in with Congress’ intent when it passed the workers victimized by violations violation of national labor laws the trade agreement. Given the amount have no standing to push their com- or international labor standards); of debate dedicated to examining the plaint forward, appear and argue be- 3. conduct investigations and issue poor labor rights records of several fore relevant consultation bodies or findings and recommendations on CAFTA countries, it is simply difficult arbitral panels, submit briefs, appeal alleged violations of international to believe that Congress intended to decisions or otherwise play a role labor standards; and create such a fundamental loophole in the process. FTA labor chapters 4. undertake research to produce an in CAFTA’s labor rights provisions. should open up the process to full annual report on the effects of the participation by relevant actors at agreement on working people, and Lessons learned all stages of the dispute resolution whether it is positive or negative, Over the past few decades, much process. in each country that is party to the has been achieved in the struggle to • Address labor violence: Lawmakers agreement.

U.S. LABOR EDUCATION in the AMERICAS PROJECT @ ILRF Winter 2014