GM BLAMES ASOTRECOL FOR THE IMPASSE.
ASOTRECOL BEGS TO DIFFER.
Q – WHY THE IMPASS BETWEEN GENERAL MOTORS AND ASOTRECOL?
A – One of the reasons for the impasse over ASOTRECOL’s grievances is that GM does not want to acknowledge the underlying documentation presented by ASOTRECOL backing up their claims. Both the Bogota office of the AFL-CIO’s Solidarity Center, and the political officer of the U.S. Embassy in Colombia, independently confirm that their documentation of GM’s wrongdoing, especially Jorge Parra’s, is extensive and damning.[i]
GM Colmotores management stands accused of rigging a system for dismissing injured workers without compensating them, then concealing and distorting the facts of their illegal and underhanded activities – with the cooperation of corrupt Colombian government officials. At stake for the company is GM Colmotores’ status as the most profitable GM subsidiary in Latin America. GM is worried, too, that reaching a fair settlement with the eight remaining ASOTRECOL members will set the bar for claims by hundreds more injured and fired workers (if not thousands) who GM fears will also come forward demanding justice.[ii]
If it wasn’t for ASOTRECOL taking the courageous step of blowing the whistle on GM’s practices and its willingness to make great sacrifices, nothing would have changed. Published reports confirm that GM Colmotores expended millions of dollars in ergonomic upgrades only after the workers’ resistance became more public. Similarly, some injured workers have been reassigned to jobs they’re able to do, in compliance with the law. ASOTRECOL has achieved some of its goals that today benefit thousands of workers; no small achievement. What remains unattained is justice for ASOTRECOL.[iii]
WHAT THE DOCUMENTS SHOW
GM Colmotores devised methods to avoid its liability to injured workers
Articles 4-8 of Law 776 of 2002 prohibit companies in Colombia from dismissing workers with occupational injuries, requiring the company to reinstate, relocate, or pension injured workers. Pensions sums are based on the degree of disability, the number of years until the disabled worker reaches retirement age (75 years), and the worker’s base salary. Companies and their occupational insurance providers each contribute 50% of the disability pension. To avoid this liability, GM Colmotores devised methods to prevent workers from 1) acquiring an “occupational” injury status; or 2) acquiring a disability rating above 51%. This was especially important to GM when it came to workers with serious claims such as spinal column injuries, the most prevalent type suffered by ASOTRECOL members.
GM Colmotores engaged in wholesale illegalities regarding workers’ private medical records, all for the sake of fattening the company’s profits, by:
- Intimidating workers from filling out accident reports – by threatening dismissal. This practice artificially bolstered safety-related statistics and thereby significantly lowered insurance costs for GM;
- Secretly accessing workers’ private medical records to determine the severity of workers’ injuries and identify workers for dismissal;
- Failing to provide to the National and Regional Qualifications Board with accurate descriptions of jobs and their ergonomic risks for the evaluation of the severity of workers’ disability as required by Resolution 2346 of 2007;
- Rigging exit medical exams with the purpose of classifying injured workers as “fit” to make it appear that the worker was leaving in the same state of physical health as when he was first hired;
- Concealing its mishandling of workers’ medical records following an investigation carried out by two labor inspectors and a representative of the Procuraduria on 4/15/2011;
- Having its medical center staff omit and/or alter documentation in workers’ medical records;
- Delaying and/or denying workers access to their own medical records, in violation of Resolution 2346 of 2007 – thereby preventing them from gaining or maintaining an “occupational injury” status or accurate disability rating from the Qualifications Boards.
- Colluding with the ARP Colpatria to have “occupational” injuries reclassified as “common” thereby denying workers access to disability pensions.
- ASOTRECOL member Pedro Pablo Rincón received an “occupational” injury status because the plant doctor performing the diagnosis did a thorough and ethical job. She was dismissed, as were other doctors who performed their jobs ethically.
None of the workers were given a physical by the Regional or National Qualifications Board, so their disability rating was based solely on the job descriptions and medical records provided by GM Colmotores. Inevitably, the workers received low disability appraisals, which they contest. Even severely injured workers were rated well below the 51% threshold, which would have required GM to pay them disability pensions.
GM violated Colombian prohibitions against dismissing workers with occupational injuries
Colombian law prohibits companies from dismissing workers with occupational injuries. They are required to reinstate, relocate, or pension injured workers (Articles 4-8 of Law 776 of 2002). GM Colmotores, however, developed an elaborate system of ridding itself of injured workers by:
- Dismissing injured workers under a variety of ruses –
- Fabricating charges against individual injured workers,
- Laying off injured workers as part of production-related layoffs without subsequently recalling them to work,
- Intimidating injured workers into signing “voluntary” layoff agreements, and
- Harassing injured workers by frequently changing their work assignments so they would quit.
These tactics violated the Colombian Constitution, which protects individuals from defamation (Article 15), and requires authorization by the Ministry of Labor when a company is contemplating dismissing injured workers, or mass layoffs. (Article 29).
- Attempting to make these dismissals appear “legal” by procuring falsified authorizations from corrupt labor inspectors, one of whom was subsequently criminally prosecuted, found guilty, and sentenced to prison.
- Committing procedural fraud against Jorge Parra, by submitting altered paperwork to the Labor Ministry. In a feeble effort to conceal its failure to carry out the proper process, GM Colmotores continued to pay Parra his salary over many months after illegally firing him (11/24/2010), to create the appearance that it had acted lawfully.
GM Colmotores denied workers the right to freedom of association
Despite the rights to free association guaranteed by the Colombian Constitution (Article 38), ASOTRECOL members were denied union rights by GM’s imposition of a “collective pact” on new hires, a violation of the “Labor Action Plan,” agreement negotiated by the U.S. and Colombian governments to facilitate passage of the Colombia Free Trade Agreement.
GM Colmotores management:
- Pressured new hires to sign documents promising that they would not affiliate with the union;
- Threatened workers that their contracts would not be renewed if they joined the union;
- Hired moles who served to gather intelligence and report on the union activity of fellow workers;
- Targeted Jorge Parra for dismissal, and subsequently excluded him from the GM Colmotores installation based on his protected activities:
- Speaking out publicly and denouncing GM Colmotores’ abuses;
- Filing formal complaints and legal actions with government agencies;
- Sharing information with his coworkers about defending their rights against GM’s tactics
- Forming ASOTRECOL.
Q – WHY NOT SETTLE IT IN THE COURTS?
A – GM Colmotores evaded their legal responsibilities toward workers injured on the job by altering records, changing injury statuses, ensuring that the severity of workers’ disability ratings were artificially low, and using various subterfuges to sever their employment with the company. The company thus ensured that injured workers have very little recourse through legal channels.
Even where legal channels were pursued, they have proven fruitless. Practically all cases brought by injured workers against GM Colmotores were assigned to a single judge (Labor Judge #16), contrary to the requirement that the judges be randomly selected. In each case, Judge #16 ruled in favor of the company.
GM has since denounced ASOTRECOL because the injured workers are, in GM’s words, “operating outside of legal channels.” GM Colmotores made sure the workers had no other option.
Which brings us to the failed mediation of August, 2012. While GM implicitly acknowledged the legitimacy of ASOTRECOL’s grievances when they agreed to mediation under the auspices of the Federal Mediation and Conciliation Service (FMCS), they assumed (wrongly) that the injured workers would accept offers far below the level of compensation GM would be required to provide if it complied with Colombian law.
ASOTRECOL’S original and first demand was reinstatement to GM employment on jobs they could do. By categorically rejecting this demand, GM is in violation of the law.
Following the mediators’ suggestion that ASOTRECOL pursue a financial settlement instead, ASOTRECOL consulted with lawyers from the AFL-CIO Solidarity Center, who calculated a figure of $5,184,001.34 USD for the 12 members. Five factors were considered:
• 1) Those with over a 50% disability would receive 75% of monthly wages until reaching retirement age (75 years of age), or 24 months of pay for those who are less than 50% disabled, according to Colombian labor law;
• 2) funds to pay for 10 semesters of university studies per worker;
• 3) an education subsidy to help pay for tuition for each child until they reach 25 years of age, as was signed in the workers’ contracts;
• 4) a housing subsidy to cover 75% of a “social interest housing” lot; and
• 5) 24 months of wages.
GM’s counter- and final-offer was a cash payment approximating 18 months’ wages. The August 2012 mediation ended prematurely (after just 3.5 days) with this impasse, when FMCS mediators had to catch flights back to the U.S. Since then, ASOTRECOL has remained open to dialogue and ready to return to negotiations, as recommended by the mediators. For its part, GM feigned interest but ultimately rejected any further talks:
(1) The head of GM Colmotores Labor Relations agreed to a meeting on June 14, 2013 with U.S. embassy officials and a Solidarity Center representative. The aim of the meeting was to establish a path to resolving the dispute. The GM VP cancelled at the last minute, telling the U.S. Labor Attaché that he had to leave for South Africa on an emergency. GM didn’t reschedule the meeting.[iv]
(2) GM Headquarters later accepted an invitation by Bogota, Colombia Human Rights and Police officials to send representatives for the purpose of mediation with ASOTRECOL. They were to arrive in Bogota for an August 22, 2013 meeting, but were a no-show. A GM Colmotores representative showed up to say there would be no mediation.
ASOTRECOL has repeatedly lowered its financial proposals (Spring, 2013, Fall 2013). GM has never responded. ASOTRECOL’s most recent proposal was $3 million USD to be divided among the 8 remaining members of the association. That’s less than the amount calculated by the AFL-CIO Solidarity Center that was owed to these men in disability pensions ($3,194,221.95 USD) (Article 10, Colombian Law 776, 2002). This figure represents the disability pensions that the workers would be entitled to, 50% paid by GM, 50% paid by the occupational insurance provider.
Considering GM’s violations of the injured workers’ rights cited above, and GM’s systematic actions which precluded the workers from receiving compensation from the occupational insurance company, GM should – at minimum – be required to pay an amount equivalent to the full disability pension owed to each member of ASOTRECOL.
Prepared by Paige Shell-Spurling and Frank Hammer in consultation with Jorge Parra, President, ASOTRECOL – 7/1/2014
[i] Doumitt, Aquilla
[iii] El Tiempo, Unecol