Workers Illegally Fired for Union Activity Reinstated at Salvadoran Textile Mill Supplying Cloth for Gear for Sports, Hanes, Under Armour

To:WRC Affiliate Colleges and Universities
From:Scott Nova and Jessica Champagne
Date:August 17, 2011
Re:Workers Illegally Fired for Union Activity Reinstated at Salvadoran Textile Mill Supplying Cloth for Gear for Sports, Hanes, Under Armour

I am pleased to report that four workers who were terminated for exercising their right to free association at the Nemtex textile mill in El Salvador have been reinstated and compensated for the time that they were off the job. A fifth worker who resigned in the face of management intimidation has also been reinstated.

Nemtex produces cloth used by several makers of collegiate apparel, including the licensees Gear for Sports International (GFSI) and Under Armour, and Hanesbrands (HBI), a major producer of blank garments. After being notified of the violations by the WRC, these three companies played a positive role in ensuring that the four terminated workers be reinstated (note: HBI now owns GFSI). 

The WRC was initially contacted by the Salvadoran Sitrasacosi union (Sindicato de Trabajadoras y Trabajadores Sastres, Costureras y Similares) in early September 2010 regarding the illegal dismissals of four workers who were members of the leadership committee of a newly-established union at Nemtex. The union leaders were elected on August 25, 2010 and the Ministry of Labor was notified of their election the following day, thereby making them legally protected from dismissal by their employer, as established in Article 248 of the Salvadoran Labor Code. This article stipulates that elected officials of a union body cannot be fired, transferred or demoted without prior authorization from the relevant government authority.  

However, on August 30 and September 7, 2010, Nemtex fired the four union leaders. Following a Ministry of Labor inspection carried out on September 13, the Ministry communicated to Nemtex that the company was in violation of the Salvadoran Labor Code. The Ministry directed the company to reinstate the four workers and pay them their lost wages from the date of their dismissals to the date of reinstatement. The Ministry of Labor visited Nemtex again on September 20 to determine whether or not the factory had reinstated the workers and learned that it had not and did not have any plans to do so. 

The WRC contacted Nemtex on September 10, 2010, but received no response from the company. The WRC then sent a memorandum concerning Nemtex’s failure to reinstate the illegally fired workers to companies that had purchased apparel made with cloth manufactured by Nemtex, beginning with HBI. One memo sent to brands can be found here.

On April 19, 2011, less than one week after this letter was sent, the fired union leaders reported that they had been contacted by Nemtex management, told again that they would never be reinstated, and offered a lump sum payment to settle their claims against the company. The workers, desperate after months of unemployment and convinced that they would never be reinstated, accepted the company’s financial settlement. A fifth member of the union leadership committee, fearing that he would be targeted in the future, also took the settlement and resigned from the company.  
Following this, HBI reported to the WRC that Nemtex had informed its representatives that the four workers had been given the option of reinstatement or a financial payment, and that they had chosen the latter. However, the workers clearly reported that at no time had they been given the option of returning to work, which had been their request since the first Ministry of Labor inspection almost eight months prior. Reinstatement is the standard remedy under international labor standards for unlawful terminations of employees exercising associational rights. (See, for example, the International Labor Organization’s “Digest of decisions of the Committee on Freedom of Association,” November 1, 2006.)  On May 9, HBI’s representative in El Salvador met with the workers along with a WRC representative and confirmed that they were, in fact, never clearly provided an offer of reinstatement.

In late May 2011, representatives of HBI, GFSI, and Under Armour reported to the WRC that they had been in communication with Nemtex management and that the workers would be reinstated shortly. The WRC began coordinating with these buyer representatives to address the terms and conditions of the workers’ reinstatement. Workers signed reinstatement agreements with Nemtex management on July 27, 2011 and returned to work the next day.

This reinstatement is particularly noteworthy in the Salvadoran context, where employers frequently disregard the law’s prohibition against unauthorized termination of workers registered as union leaders. Often, these violations are never remedied, or workers receive only financial settlements, despite the fact that, as already noted, international labor law calls for reinstatement as the minimum acceptable remedy. Thus, this case sets an important precedent.

This case also demonstrates that an offer of reinstatement for unlawfully terminated workers is both necessary and achievable, even where workers have already accepted a monetary settlement from their employer. Here, this was the case even though one of the workers had resigned “voluntarily” as a result of the climate of intimidation created by the employer’s violations of associational rights. This principle is crucial. Unlawfully fired workers often find themselves in dire economic straits and feel compelled to accept such financial settlements, which are then used by the employer as a basis for denying any further claim to reinstatement.

In the case of these four terminated workers, their request for reinstatement was rebuffed by factory management for seven months, they were unable to support their families financially, and they were told by factory management that the money on offer was the only remedy they were ever going to enjoy. Under these coercive circumstances, treating the decision of these workers to accept money from the factory as constituting a waiver of their rights to reinstatement would have allowed the management to achieve its original illicit goal: eliminating the union’s leadership committee from the plant and ending workers’ exercise of their associational rights. The reinstatement of the workers allows these individuals, and other workers at the plant, to continue to exercise this fundamental right.

The outcome of this case is a victory for the rule of law in El Salvador and for the associational rights of Salvadoran apparel workers. We will continue to monitor the situation at Nemtex now that the five union committee members have been restored to employment.

Scott Nova 
Worker Rights Consortium 
5 Thomas Circle NW 
Washington DC 20005 
ph 202 387 4884 
fax 202 387 3292 
[email protected]