Specific Instance between Maurice Matadi Kajangu, Romain Bazira Bankulikire, Chrispain Belebele Ntumba, Telesphore Kazunguzibwa Masumbuko, and the Coca-Cola Company Regarding Events in the Democratic Republic of the Congo

Overview of the NCP and Its Role

The OECD Guidelines for Multinational Enterprises (the Guidelines)[1] are voluntary, non-binding recommendations for responsible business conduct in a global context. In the Guidelines, adhering governments, of which there are currently fifty, provide guidance to multinational enterprises operating in or from their territories. Adhering governments have committed to a) encouraging their multinational enterprises to follow the Guidelines in their global operations, and b) appointing a National Contact Point (NCP) to assist parties in seeking a consensual resolution to issues that may arise under the Guidelines.

As a part of its function, the U.S. NCP can help to resolve issues related to implementation of the Guidelines, arising from the business conduct of a multinational enterprise in specific instances. Generally, such issues are dealt with by the NCP of the country in which the issues have arisen. The U.S. NCP handles such issues in accordance with procedures described in the U.S. NCP Guide.[2] Further background on the Specific Instance process and the procedures and policies of the U.S. NCP can be found at the website of the U.S. NCP.[3]

Executive Summary

This Final Statement concludes the Specific Instance submitted to the U.S. NCP on August 10, 2020, by Maurice Matadi Kajangu, Romain Bazira Bankulikire, Chrispain Belebele Ntumba, and Telesphore Kazunguzibwa Masumbuko (collectively, the submitters). The Specific Instance alleged conduct inconsistent with the Guidelines on the part of Atlanta-headquartered soft drink company The Coca-Cola Company (Coca-Cola, or TCCC) with respect to employment-related actions of a local company in the Democratic Republic of the Congo (DRC).

The U.S. NCP declines to offer mediation to the submitters, for reasons including the following: First, the same submitters previously submitted the same set of underlying facts in claims to the Dutch NCP, multiple times in some cases, the Dutch NCP has addressed them, and the situation offers no evident reason that would favor reassessment by the U.S. NCP. Second, the U.S. NCP agrees with the Dutch NCP that the Guidelines do not normally cover “an individual lab[o]r dispute” such as those raised here. These reasons lead the U.S. NCP to conclude that the issues raised by the submitters do not merit further examination under the Guidelines.

Substance of the Specific Instance, and Response

The four submitters are former employees of DRC beverage company Bralima SA, which is central to this specific instance. According to publicly available information, Bralima was established in 1923 as La Brasserie de Leopoldville. Through the eventful history of the subsequent 99 years, it has supplied beer and soft drinks to the people of what was in 1923 the Belgian Congo, and has been since 1960 the independent nation successively named the Republic of the Congo, Zaire, and now the Democratic Republic of the Congo. Bralima operates six plants across the DRC, including one in the city of Bukavu, in South Kivu Province. Since 1986, Bralima has been a majority-owned subsidiary of the Dutch brewer Heineken N.V. (More precisely, according to Coca-Cola’s May 2021 submission, at that time Heineken owned about 95% of Bralima, and a Toyota subsidiary owned the rest.) Bralima is a licensed bottler of Coca-Cola-branded soft drinks.

On August 10, 2020, the submitters submitted a Specific Instance to the U.S. NCP alleging conduct inconsistent with Chapters I (Concepts and Principles), II (General Principles), IV (Human Rights), V (Employment and Industrial Relations), and VII (Combating Bribery, Bribe Solicitation and Extortion) of the Guidelines. The original submission was in French; it was followed by an English translation and accompanied by supporting documentation, with more provided later. On May 7, 2021, TCCC provided a 15-page written response, taking the position that the Specific Instance should not be accepted for further examination. On May 28, 2021 and July 5, 2021, the submitters and TCCC, respectively, responded to the other’s most recent communication. The submitters sent a brief reiteration of their position on July 12, 2021.

According to the submission, the submitters worked for Bralima in Bukavu until Bralima dismissed them. One of the four, Mr. Masumbuko, was dismissed in February 2000.[4] The other three were among sixteen employees dismissed in December 2016, as part of a reduction in staff. Their evidence indicates that each had worked for Bralima for long tenures, ranging from 13 to 32 years. They state that all four were a few years short of the retirement age of either 60 or 65 when they were dismissed. The submitters allege that their dismissals were unjustified, procedurally irregular, and contrary to DRC law, and that Bralima failed to pay them the requisite compensation. The submitters allege errors and irregularities in the official reviews of their terminations, and that labor inspectors failed to do their jobs.

While the complaint focuses on the submitters’ terminations, it states a number of other allegations against Bralima, such as that “Bralima was in cooperation with the RCD-Goma rebellion between 1999-2003,” and that it lacks legal authorization “to exist and operate in the [DRC]” because it lacks a necessary presidential ordinance. These additional claims do not warrant further discussion because they are vague, are supported only minimally if at all, and appear unrelated both to the submitters’ main point and to the Guidelines.

The submitters’ allegation against Coca-Cola, as opposed to Bralima, is that it breached the Guidelines by its failure to execute due diligence and remediation in its ongoing business relationship with Bralima. Specifically, the submitters claim that TCCC failed to prevent or mitigate adverse impacts linked to the dismissals, while benefitting from Bralima’s involvement in the manufacture, production, and marketing of Coca-Cola products. In addition to commitments that TCCC and Bralima end alleged illegal actions, they seek a “compensatory indemnity” of $5 million from Bralima or TCCC for damages they suffered.

In response, TCCC stated its commitment to engage in responsible business conduct in a manner consistent with the Guidelines, and that it has operationalized that commitment through a robust and comprehensive program that extends throughout TCCC and the value chain.

TCCC stated that Bralima acts as its bottler in the DRC, “receiving a beverage concentrate and syrup through authorized third parties and preparing, packaging, distributing and selling TCCC products.” TCCC further noted that Bralima, as a subsidiary of Heineken, is subject to Heineken’s global policies and procedures, including those on responsible business conduct and human rights, and that Heineken has taken actions to carry out those policies with respect to Bralima and the DRC. Furthermore, TCCC pointed out three related previous submissions to the Dutch NCP.

Related Submissions to the Dutch NCP: the 2015, 2018, and 2019 Cases

Although their initial submission to the U.S. NCP does not mention this fact, each of the four submitters participated in one or more of three Specific Instances previously submitted to the Dutch NCP. Those Specific Instances were directed against Heineken and Bralima, rather than Coca-Cola, but were based on the same facts: the submitters’ dismissals by Bralima.

First, on December 14, 2015, three former Bralima employees, on behalf of a group of 168 former Bralima employees submitted a Specific Instance to the Dutch NCP against Heineken and Bralima. The 2015 submission alleged that the dismissals of the 168 employees from Bralima’s Bukavu operation between 1999 and 2003 contravened domestic and international law. The Dutch NCP offered its good offices and arranged mediation. In a Final Statement of August 18, 2017, the Dutch NCP stated that the parties “found a satisfactory outcome.” As part of the resolution, Heineken committed to develop relevant policies, including on “how to conduct business and operate in volatile and conflict-affected countries.”[5]

In the second related case, on October 17, 2018, Mr. Kajangu submitted a Specific Instance to the Dutch NCP against Heineken and Bralima regarding his 2016 termination from Bralima’s Bukavu operation. The Dutch NCP, in an Initial Assessment of August 7, 2019, concluded that the Specific Instance was not sufficiently substantiated and declined to offer mediation. The Dutch NCP reported Heineken’s and Bralima’s assertions that Mr. Kajangu had voluntarily left his job after negotiating and signing a termination agreement with the support of a union representative, that he had been fully paid, and that he had unsuccessfully challenged the measure in local proceedings. The Dutch NCP noted evidence, also presented in this case, of a writ of execution by the Tribunal de Grande Instance de Bukavu stipulating that Mr. Kajungu had no further right to proceed in court, and of a case he filed against Bralima, that was withdrawn for unknown reasons. In support of its conclusion, the Dutch NCP stated, “This Specific Notification concerns an individual lab[o]r dispute and these issues are in principle not covered by the Guidelines, unless there are wider aspects or implications to the case that are relevant to the Guidelines. The NCP has not found such wider aspects or implications in this case.”[6]

In the third related case, on November 4, 2019, all four submitters of the present Specific Instance submitted a Specific Instance to the Dutch NCP against Heineken and Bralima, making allegations that appear substantively the same as those under consideration here. In its Initial Assessment issued on March 20, 2020, the Dutch NCP concluded that the Specific Instance did not merit further consideration, on grounds that it had already considered and dismissed Mr. Kajangu’s claims, those of Mr. Bankulikere and Mr. Ntumba were similar and should be dismissed for the same reason, and Mr. Masumboko’s had “already been handled in the specific instance [submitted in 2015, and described above]. Since the underlying complaint has presented no new relevant information the NCP will not take Mr. Masumboko’s case into further consideration.” The Dutch NCP described its decision in a statement that was unusually brief, and noted that it had not “handle[d] these cases according to the regular specific instance procedure,” including “publishing a full Initial Assessment,” in part because the Dutch NCP had previously addressed two of the claims.[7]

Less than five months after the Dutch NCP rejected the 2019 submission, the same submitters apparently repackaged their filing against Bralima and Heineken as one against Coca-Cola and submitted it to the U.S. NCP. We address that filing here.

Initial Assessment

The initial assessment does not determine whether or not a company has acted consistently with the Guidelines, but rather is a process to determine whether the issues raised merit further examination. In its initial assessment, the U.S. NCP determined that the issues raised by the submitters do not merit further examination under the Guidelines, and thus decided not to accept the Specific Instance. The U.S. NCP made this decision based on the Guidelines, and considering the OECD’s guidance on initial assessments.[8] In particular, according to the Commentary on Implementation Procedures, an initial assessment involves determining “whether the issue is bona fide and relevant to the implementation of the Guidelines,” taking into account the following criteria:[9]

a. The identity of the party concerned and its interest in the matter

The U.S. NCP is satisfied that Messrs. Kajangu, Bankulikire, Ntumba, and Masumbuko have provided sufficient information regarding their interest in the issues raised. They state, and their supporting documentation provides evidence, that they are former employees of Bralima.

b. Whether the issue is material and substantiated

The fundamental issue in this case is a set of four individual labor disputes, specifically regarding terminations of four employees in ways that allegedly contravened DRC laws. The U.S. NCP agrees with the conclusion of the Dutch NCP, as stated in its first review of Mr. Kajangu’s case, that such individual labor disputes “are in principle not covered by the Guidelines, unless there are wider aspects or implications to the case that are relevant to the Guidelines.” The U.S. NCP also agrees with the conclusion of the Dutch NCP that this case presents no such wider implications.

For these reasons, the U.S. NCP concludes that the Specific Instance is not material to the Guidelines, and is not sufficiently substantiated.

c. Whether there seems to be a link between the enterprise’s activities and the issue raised in the specific instance

Based on the business relationship between Coca-Cola and Bralima, it is at least plausible, which is sufficient to satisfy the “not . . . unnecessarily onerous” standard required for an initial assessment, that there is a link between TCCC’s activities and the issues raised.[10]

d. The relevance of applicable law and procedures, including court rulings

Mr. Kajangu sought recourse to domestic legal remedies, apparently unsuccessfully.

Accordingly, applicable law and proceedings were pursued to address the complaints of at least one submitter.

e. How similar issues have been, or are being, treated in other domestic or international proceedings

Each party presented arguments about how other NCPs have handled cases that similarly involve individual labor disputes. In addition to Dutch NCP cases involving the same submitters, TCCC pointed to a 2015 case from the French NCP, also cited as precedent by the Dutch NCP, which concluded that a labor dispute between an individual and his Cameroonian employer was outside of the NCP’s mandate and should be dealt with by local judicial authorities.[11] The submitters asserted that two other cases served as contrary examples. The 2016 Dutch case that they cite demonstrates that an NCP may accept a case submitted by a single individual, but that fact is not in question.[12] In the other case they cite, the Brazilian NCP discussed a specific instance involving the termination of an individual employee, but the dismissed employee was a union leader, with an implication that she was dismissed because of her union activity, raising an issue directly relevant to the Guidelines. Furthermore, the Brazilian NCP did not decide to offer mediation; rather, it appears that the parties resolved the case after the NCP asked the enterprise about the facts and before the NCP completed an initial assessment.[13]

These other cases support the conclusion that an NCP should not ordinarily address an individual labor dispute, absent some particular reason (or “wider aspects or implications,” in the words of the Dutch NCP) relevant to the Guidelines.

f. Whether the consideration of the specific issue would contribute to the purposes and effectiveness of the Guidelines

As the facts underlying this Specific Instance have been addressed by the Dutch NCP, this seems to be a case of the submitters seeking an alternative venue following unwelcome decisions from one forum.

Moreover, the one change in the present version of this submission, that it now addresses Coca-Cola rather than Bralima and Heineken, does not help the submitters. While they stated that Coca-Cola benefitted from their employment by Bralima, for example because one of them delivered Coca-Cola-branded products for Bralima, they provided no indication that Coca-Cola took actions that caused or contributed to their allegedly wrongful terminations. By contrast, it is more possible to imagine that Bralima itself, as their employer, and Heineken, as the owner of Bralima, might have caused or contributed to any such adverse impacts. A relationship of causing or contributing to adverse impacts would result in those companies having a greater level of responsibility under the Guidelines than Coca-Cola, which appears, at most, to have been directly linked to them.

It is true that, as the submitters point out, the OECD’s guide for initial assessments states that “The Procedural Guidance does not preclude NCPs from considering submissions previously handled by other NCPs.” That guide also states, however, that the second NCP should consider whether an offer of good offices could make a positive contribution to the resolution of the issues raised.[14] Furthermore, NCPs coordinate to avoid duplicative handling of the same case concurrently, which would waste resources, and NCPs are not meant to serve as an appellate body to review each other’s decisions. No reason for revisiting the Dutch NCP’s decision—some hypothetical examples of such a reason could be that the facts had changed, or a company changed nationality through an acquisition or redomiciling, or another NCP had found an issue but was incapable of addressing it—is present here.[15]

In light of the Dutch NCP’s previous consideration of the same claim, the U.S. NCP concludes that consideration of this Specific Instance would not contribute to the purposes and effectiveness of the Guidelines.

For the reasons stated above, the U.S. NCP determined in its initial assessment that it should not accept the Specific Instance.

In this case, there will be no Initial Assessment document separate from this Final Statement, even though the U.S. NCP’s procedures and some previous practice suggest that there may be two separate documents. This Final Statement fills the role of both documents – it describes the initial assessment, in addition to concluding the Specific Instance.

Resolution

Because of its decision not to offer mediation, the U.S. NCP brings this Specific Instance to a close with this Final Statement.

The U.S. NCP would like to thank all parties for their participation. We thank TCCC for submitting a detailed response, and for taking the process seriously. We sympathize with the difficult circumstances that the submitters likely face, living in a part of the DRC that is not only impoverished but was also described in 2018 as “the epicenter of the deadliest conflict since World War II,”[16] and having lost good jobs at a time of life when their salaries may be especially important to their families and it may be especially difficult to find other work. Nevertheless, under the circumstances presented here the U.S. NCP is not the proper venue to address what is essentially a set of employment disputes against a DRC company raised by four former employees.

David B. Sullivan
U.S. National Contact Point for the OECD Guidelines
U.S. Department of State

[1] Available at http://www.oecd.org/daf/inv/mne/48004323.pdf.   

[2] “A Guide to the U.S. National Contact Point for the OECD Guidelines for Multinational Enterprises,” available at https://www.state.gov/u-s-national-contact-point-for-the-oecd-guidelines-for-multinational-enterprises/a-guide-to-the-u-s-national-contact-point-for-the-oecd-guidelines-for-multinational-enterprises. 

[3] https://www.state.gov/u-s-national-contact-point-for-the-oecd-guidelines-for-multinational-enterprises/. 

[4] The supporting documentation gives dates that differ slightly from those in the submission, which are used above.  That documentation, in forms such as a “Certificat de Fin de Service,” appears to indicate termination dates of April 19, 2000 for Mr. Masumbuko, December 21, 2016 for Mr. Ntumba, February 23, 2017 for Mr. Bankulikire, and February 24, 2017 for Mr. Kajungu.  The differences, which presumably might reflect administrative details such as severance pay or accumulated leave, are not material.   

[5] Final Statement, Former employees of Bralima and Bralima, Heineken, Dutch NCP (Aug. 18, 2017), available at https://www.oecdguidelines.nl/documents/publication/2017/08/18/final-statement-notification-bralima-vs-heineken. 

[6] Initial Assessment, Maurice Kajangu and Bralima (Bukavu, DRC), Heineken N.V., Dutch NCP (Aug. 7, 2019), available at https://www.oecdguidelines.nl/documents/publication/2019/08/07/initial-assessment-kajangu-vs.-bralima-and-heineken. 

[7] Initial Assessment, Kajangu, Bankulikire, Ntumba, Masumboko and Bralima (Bukavu, DRC), Heineken N.V., Dutch NCP (March 30, 2020), available at https://www.oecdguidelines.nl/documents/publication/2020/03/30/kajangu-vs-bralima-heineken—initial-assessment.  

[8] OECD, Guide for National [Contact] Points on the Initial Assessment of Specific Instances (2019), available at https://mneguidelines.oecd.org/Guide-for-National-Contact-Points-on-the-Initial-Assessment-of-Specific-Instances.pdf . 

[9] OECD, Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises, paragraph 25, in OECD Guidelines, supra note 1. 

[10] OECD, Guide on Initial Assessment, supra note 8, at p.7. 

[11] Final Statement, Edouard Teumagnie and Agence Française de Développement, French NCP (March 25, 2015), summary available at https://mneguidelines.oecd.org/database/instances/fr0020.htm.  See also Initial Assessment, Edouard Teumagnie and AES Corporation, U.S. NCP (Sep. 13, 2012), available at https://2009-2017.state.gov/e/eb/oecd/usncp/links/rls/197766.htm (U.S. NCP declining to offer good offices in earlier version of same complaint, originally submitted to the UK NCP). 

[12] Final Statement, Bart Stapert and Mylan N.V., Dutch NCP (April 11, 2016), available at https://www.oecdguidelines.nl/documents/publication/2016/4/11/bart-stapert-attorney-vs-mylan. 

[13] Final Statement, CONTRAF, CUT and Unibanco, NCP Brazil Complaint No. 05/2007 (Sep. 14, 2012), available at https://mneguidelines.oecd.org/database/ncp/Unibanco-2007.pdf. 

[14] OECD, Guide on Initial Assessment, supra note 8, at p.9. 

[15] As a broader point for future cases, to protect NCPs’ time and resources, it may be worthwhile for them not to allow, in most circumstances, sequential reviews of the same case by multiple NCPs, as is now done for concurrent reviews of the same case.  One way to do so would be to establish a presumption against offering good offices in a case that was previously handled by another NCP, a presumption that submitters could rebut in a limited set of circumstances. 

[16] Council on Foreign Relations, The Eastern Congo: A CFR InfoGuide Presentation, available at https://www.cfr.org/eastern-congo/#!/ .