On August 19, the U.S. Fifth Circuit Court of Appeals, based in New Orleans, declared the 1935 National Labor Relations Act (NLRA), a cornerstone of the American working class’s right to free association, unconstitutional. This ruling, stemming from a case involving Elon Musk’s SpaceX, has significant implications for Mexico, particularly within the framework of the United States-Mexico-Canada Agreement (USMCA).
The 5th Circuit’s decision centers on the argument that the structure of the National Labor Relations Board (NLRB) and its administrative law judges is unconstitutional. SpaceX argued that the protection afforded board members and the general counsel (“for cause”) makes them immune from the executive branch, violating the separation of powers. The court agreed with this position, granting SpaceX “injunctive relief” that prohibits the NLRB from performing its functions in the jurisdiction of the 5th Circuit (Texas, Louisiana, and Mississippi).
In this regard, Representatives Juan Rubio Gualito and Pablo Franco Hernández, members of the ILAW Network in Mexico, explained that this ruling creates a dual legal reality in the US, where the 1935 labor law is no longer valid in the jurisdiction of the 5th Circuit, while it still exists in the rest of the country. This situation expedites the case for review by the Supreme Court.
They explained that for Mexico, the main concern lies in Article 23, Sections 2 and 3 of the USMCA, which establishes the obligations of the parties as members of the ILO, particularly in relation to “freedom of association and the effective recognition of the right to collective bargaining.” “With the invalidation of the NLRA across a broad region of US economic activity, that right, for the time being, ceases to exist,” Franco said.
Therefore, they issued some recommendations for the Mexican government, such as requesting immediate bilateral consultations. “The Mexican State has the right and obligation to claim noncompliance with the obligations of the USMCA, as established in Article 31. Therefore, the Mexican government must request bilateral consultations to assert the US’s noncompliance with the obligations contained in Chapter 23,” the legislator said.
In addition, they must “refer the case to an arbitration panel, because if a solution is not found in bilateral consultations, the case must be referred to an arbitration panel under Annex 31 of the USMCA.”
Likewise, we must advocate for the symmetrical implementation of the Rapid Labor Response Mechanism, especially because in the medium term, “in the medium term, within the framework of a possible renegotiation of the USMCA, Mexico must advocate for the symmetrical implementation of this mechanism, recognizing its necessity for the American working class.”
Furthermore, Franco called on unions in both countries to unite to fight for these rights. “The repeal of labor law in the US also represents unfair competition in trade. Failure to address this situation would mean ceding moral authority in defending the working class. Union organizations are urged to speak out on this matter.”
Source: eleconomista
