Rapid Labor Mechanism Should Be Clarified and Changed, Business Interests Argue in Comments

In contrast, a submission by the president of the United Steelworkers, who said his views represented a broad cross-section of unions, said that officials' considering whether petitioners had sought relief in Mexico or had a matter pending before an international body is “seriously flawed.” The officials do not have to wait for that domestic complaint to be settled before acting, according to the current guidelines, but USW President Thomas Conway thinks even considering it is problematic.

“A review of the statute and legislative history does not impose such a requirement. Indeed, the consideration of the pendency of an action in the Mexican domestic system or before an international body, is legally immaterial to the decision to move forward on a petition and could, potentially, undermine the effective implementation of labor rights in Mexico,” he wrote, given that individual complaints of wrongful dismissal take on average two years to resolve, and disputes of an entire union take a decade or more to resolve.

There was only one comment that represented workers' views, and seven that represented companies.

Even as a half-dozen trade groups agreed that there's a lack of clarity on what “sufficient credible evidence” would be needed to forward a complaint to the Interagency Labor Committee for Monitoring and Enforcement, they had differing emphasis on how public the process should be. All agreed that the owners of the accused workplace should be notified promptly and given the opportunity to rebut the claims.

Several trade groups say the decisions of the ILC should be made public. But the U.S. Chamber of Commerce focused on the danger of publicity, saying that “the process must strive to avoid permitting public guilt by mere allegation, and instead, focus on compliance with the law.” The Chamber argued that publicizing a petition that is just filed is so unfair, because no one has judged the merits, that the committee should refuse to take it up if that happens. And, the Chamber said, even when the Department of Labor's Office of Trade and Labor Affairs forwards it to the committee, that should be kept secret, and if someone released the petition, they should stop evaluating the claims.

The Chamber also focused on the fact that the government said a complaint may include supporting information, not that it must. The Chamber argues that “a mere written statement making an assertion of a denial of rights at a covered facility establishes an unreasonably low threshold for a filing to commence a legal proceeding with such significant potential consequences,” and said that complainants must say they know their claims are true under threat of perjury. “As the proposed guidance is written today, a petition could be based on nothing more than a Tweet, a Facebook post, or an unsubstantiated media report,” the Chamber wrote.

Several groups, including the Chamber, complained that the process is not limited to people with standing -- i.e. a worker or former worker at the plant, as opposed to a non-governmental organization or union not directly involved at the site.

The United States Council for International Business complained that the rule doesn't say if a determination of the committee is by majority vote, and if there is a right to dissent. It also argues there should be “stipulations to avoid double jeopardy and extraterritorial forum shopping by not reviewing petitions for claims on matters that have already been resolved by mediation, arbitration, by consent of the parties or through the legal process.”

Several trade groups said the rules should be explicit that this forum does not apply where a union, employer or worker is dissatisfied with the outcome of the collective bargaining process. The committee should not be “in the business of evaluating the quality or fairness of an established bargaining agreement,” they wrote.