By David Bacon
The American Prospect, 7/5/19
https://prospect.org/article/washington-dc-wont-oversee-its-guest-worker-programs-washington-state-will
Striker at the King Fuji ranch. Photo by Edgar Franks.
On Wednesday morning, June 12, 21 guest workers at the King Fuji ranch in Mattawa, Washington, didn't file into the company orchards as usual, to thin apples. Instead, they stood with arms folded outside their bunkhouses, on strike and demanding to talk with company managers.
According to one striker, Sergio Martinez, "we're all working as fast as we can, but the company always wants more. When we can't make the production they're demanding they threaten us, telling us that if we don't produce they won't let us come back to work next year. We want to speak with the company, so we're not working until they talk with us."
Martinez and his friends have joined a labor upsurge among both H2-A guest workers and Washington's existing immigrant farm labor workforce, which has forced its state legislature to take action to protect both. New York State has just acted to increase the labor rights of farm workers as well. Meanwhile California, while it's made important advances, has yet to enact similar legislation.
Martinez voiced a complaint common among H2-A guest workers. Pressure to work harder and faster is permitted by the U.S. Department of Labor, often written into the certifications that allow growers to import workers. The job order approved by DoL for King Fuji Ranch, Inc. lists the first reason why a worker can be fired: "malingers or otherwise refuses without justified cause to perform as directed the work for which the worker was recruited and hired." If a worker's productivity doesn't improve after "coaching" then "the Worker may be terminated."
Coaching at King Fuji, according to Martinez, means "they threaten to send us back to Mexico." Another worker, who preferred not to give his name, explained that "they give you three tickets [warnings], and then you get fired. They put you on the blacklist so you can't come back next year. Workers who were fired last year aren't here this year."
The contracts under which workers come to the United States in the H2-A agricultural guest worker visa program allow employers to set production quotas. They can fire workers for any reason, and fired workers can no longer stay in the country. In effect, getting fired for low productivity makes a worker subject to deportation. Employers and their recruiters are allowed to maintain lists of workers who are eligible for rehire, and those who are not - in effect, a blacklist.
The impact of this power imbalance has produced a long train of complaints of abuse. That not only led to the King Fuji workers' strike and others like it, but also convinced the Washington State legislature to pass a new law that seeks to enforce greater protections for workers.
Dorian Lopez, an H2A guest worker from Mexico, lives in barracks in central Washington. Photo by David Bacon
In February a group of workers at the King Fuji ranch first contacted the new union for farm workers in Washington State, Familias Unidas por la Justicia. Union president Ramon Torres and Edgar Franks, an organizer for the farm worker advocacy organization, Community2Community, went to Mattawa to talk with them.
Franks says the workers were scared, but upset over their working conditions. "It was freezing and they couldn't feel their feet or hands," he said. "Some workers had pains in their arms and hands, but were afraid to go to the doctor because they might get written up, and with three written warnings they'd be fired." The company required them to thin 12-15 sections per day, which workers said was an impossible demand.
Workers listed other complaints as well. They had to pay for their own work gear, including $60 for work boots. They didn't get paid rest breaks. Both are violations of the regulations governing the H2-A program. Franks and Torres were told that when workers were hired they signed an 8-page contract in English, which they did not speak.
The two organizers explained labor rights to the workers, and agreed to stay in touch. At the end of April the union got another call from Mattawa. Four laborers had been diagnosed with the mumps, and over 100 had been quarantined. The H2-A workers were told to stay in their barracks on the company ranch. They were allowed to leave during the day to work, but could no longer go into town to buy food or supplies. They couldn't send money to their families in Mexico, who were depending on regular remittances.
Health workers from the Grant County Health District came out to the labor camp and vaccinated over a hundred people. Because symptoms usually appear in less than 25 days after exposure, it is unlikely that the workers brought the mumps virus with them from Mexico, since they'd been in the U.S. for much longer. According to the District's Theresa Adkinson, none of the workers refused to be vaccinated, since they were told they wouldn't be permitted to work if they said no.
A month later, workers called Torres and Franks, asking them to come help organize a work stoppage. The H2-A migrants were already angry over the earlier complaints and the mumps outbreak when the company instituted another scheme to pressure them to work harder.
"They told us," Torres recalled, "that managers had begun giving them grades like in school - A, B, C, D and F, according to how much they produced. Workers in the F category would be sent back to Mexico, and wouldn't be hired again next year. A lot of people were frightened by this threat, but 20 decided to act."
"We even have bedbugs, and now they want to grade us on how clean our barracks are," Martinez fumed. "At work some of the foremen shout at us, and accuse us of not working well or fast enough. And when we do work fast, they cut the piece rate they're paying us so we can't earn as much."
Barracks for H2-A workers behind a barbed wire fence near Wapato, WA. Photo by David Bacon.
Wage cutting and work pressure are both hallmarks of the H2-A program. Companies using this labor contracting scheme must apply to the U.S. Department of Labor, specifying the living conditions and the wages workers will receive. Each year the Federal government sets state-by-state an Adverse Effect Wage Rate - the wage growers must pay H-2A workers. It is set at a level that supposedly won't undermine the wages of local workers, but it's usually just slightly above the minimum wage. In 2019 the AEWR wage in Washington increased to $15.03 from $14.12 in 2018. Washington's minimum wage went to $12.00 this year, and will go to $13.50 next year.
On January 8, however, the day before the new H-2A wages were to go into effect, the National Council of Agricultural Employers, a national lobbying organization for U.S. growers, filed suit against the U.S. Department of Labor to roll pay back to 2018 levels. Michael Marsh, NCAE president and CEO, said the increases were "unsustainable," and would cost growers "hundreds of millions of dollars." The suit was dismissed in March, but, Marsh said, "we clearly understand the devastating consequences to farm and ranch families of a mandatory wage rate unconstrained by market forces and we had to act."
The impact of market forces on farm worker wages has been devastating, and affects far more than H2-A migrants. According to the Department of Labor's National Agricultural Workers Survey, there are about 2.5 million farm workers in the U.S. About three quarters were born outside the country, and half are undocumented. Farmworker Justice, a Washington DC farm worker advocacy coalition, says the average family's yearly income is $17,500-$19,999. A quarter of all farm worker families earned below the federal poverty line of $19,790.
Last year growers were certified to bring in 242,762 H-2A workers - a tenth of the total workforce - a number that is rising rapidly. Holding down their wages would save growers a lot of money, and in effect cap wage increases for farm workers as a whole. In Washington state growers and H2-A contractors have therefore made other efforts to roll back wages, in addition to the NCAE suit.
Last year, at the instigation of the Washington [State] Farm Labor Association (WAFLA), one of the U.S.'s largest H-2A labor contractors, Washington State's Employment Security Department and the U.S. Department of Labor agreed to remove an AEWR piece-rate minimum for picking apples, the state's largest harvest. Ending the piece rate guarantee effectively lowered the harvest wage by as much as a third. The King Fuji workers have been contracted to work in the coming picking season, and are affected by this agreement. In 2015, WAFLA even told growers not to report piece-rate wages at all, just hourly ones.
WAFLA has a long relationship with the contractor that recruited the King Fuji workers in Mexico, CSI Visa Processing, which boasts on its website that it is the largest single recruiter of H-2A workers from Mexico, with 10 offices throughout the country. The company was originally called Manpower of the Americas, and was created to bring workers from Mexico for what is today the largest H-2A employer - the North Carolina Growers Association.
CSI has became a recruitment behemoth, supplying workers far beyond North Carolina. Its website boasts that "CSI processed over 30,000 H2 workers in 2017." A CSI handout for employers says, "CSI has designed a system that is able to move thousands of workers through a very complicated U.S. Government program." For H-2A workers, staying on the good side of the recruiter is critical, since they depend on it to return to work in the U.S. in subsequent years.
Workers recruited through CSI must sign a form in which they acknowledge that their employer can fire them for inadequate performance, in which case they will have to return to Mexico. "The boss must report me to the authorities," it warns, "which can obviously affect my ability to return to the U.S. legally in the future."
It is not an empty threat. Until it signed a union contract with the Farm Labor Organizing Committee, the NCGA and Manpower (as CSI was then called) maintained an "Ineligible for Rehire Report" with hundreds of names. The agreement with FLOC is designed to prevent the use of a blacklist, but only applies to the NCGA.
CSI still maintains lists of workers eligible for rehire, and of workers who are not eligible. Its website warns workers, "CSI shares candidate [worker] records with companies to select whomever they see fit." Roxana Macias, CSI's Director of Compliance, says "Once CSI has recruited a worker to different employers who do not request the worker back for legitimate reasons (two strike rule), CSI will not actively seek another opportunity for that worker." Macias worked for Washington State's Employment Security Department for two years before getting the job at CSI.
A King Fuji striker demands no reprisals and no blacklisting because of their job action. Photo by Edgar Franks.
Critics of the H2-A program have sharp memories of what happened to another guest worker recruited by CSI - Honesto Silva. In 2017 Silva, an H-2A guest worker brought from Mexico to harvest blueberries, collapsed in a field belonging to Sarbanand Farms near the Canadian border, and later died. One of Silva's coworkers, Raymond Escobedo, said when Silva began feeling sick "he asked to leave work. They wouldn't give him permission, but he went back to the barracks to rest anyway. Then the supervisor went and got him out and forced him back to work." In a suit filed by Columbia Legal Services against Sarbanand Farms, Nidia Perez, who supervised workers on behalf of CSI, told them that they had to work "unless they were on their death bed."
Some 70 Sarbanand workers stopped work after Silva's death, and were fired and expelled from the company labor camp. Eventually, because they were no longer employed, they lost their visas and were forced to return to Mexico. A Sarbanand statement said "H-2A regulations do not otherwise allow for workers engaging in such concerted activity."
Sarbanand denied any responsibility for Silva's death. The company belongs to Munger Brothers, LLC, a family corporation based in Delano, California. Beginning in 2006, the company brought more than 600 H2-A workers from Mexico to harvest 3,000 acres of blueberries in California and Washington. Munger calls itself the world's largest blueberry grower, and is the driving force behind the growers' cooperative that markets under the Naturipe label.
In February 2018, the Washington State Department of Labor and Industries announced that Silva had died of natural causes, and that the company was not responsible. The department said it had investigated conditions at the Sarbanand ranch and had found no workplace health and safety violations. Nevertheless, Sarbanand Farms was fined $149,800 for not providing required breaks and meal periods, an amount a judge later cut in half. And this year, in a rare move, the U.S. Department of Labor finally debarred Sarbanand and Munger from using the H2-A program.
Local resident farm workers accuse growers of using the program to replace them. Columbia Legal Services sued WAFLA, CSI and a large Washington State winery, Mercer Canyons in 2013 in one celebrated case. According to Garrett Benton, a viticulturalist and manager of the company's grape department, when Mercer Canyon brought in WAFLA "it left very little work for the local farm workers."
The rules governing the H-2A program require an employer to advertise the jobs among local residents before it can be certified. Local workers have to be offered jobs at the same pay the company plans to offer H-2A workers. Benton said many of Mercer Canyon's longtime local workers were told there was no work available, or were referred to jobs paying $9.88/hour while H-2A workers were being hired at $12/hour (the AEWR). The company even reduced the hours of those local workers it did hire in order to get them to quit.
"Working conditions got so bad for the local workers that they eventually went on strike on May 1, 2013," Benton charged. "They felt strongly that they were being given harder, less desirable work for less pay. Mercer Canyon was doing everything it could to discourage local farm workers from gaining employment." The suit was settled in 2017, and Mercer Canyons agreed to pay workers $545,000 plus attorneys' fees.
Washington state has given public farmworker housing subsidies to WAFLA and other growers who use the funds for H-2A housing. State Department of Commerce surveys show that 10 percent of farm workers who are Washington residents were living outdoors in a car or in a tent, and 20 percent were living in garages, shacks, or "in places not intended to serve as bedrooms." The department refused to bar growers from using the program to house H-2A workers, however.
Sara N. Sanchez de Lustre thins fruit on red delicious apple trees in Wapato. Photo by David Bacon.
Cases like these were among those that convinced Washington State legislators to pass a bill that promises greater protections for H2-A workers themselves, as well as for resident farm workers. The state's Senate voted up SB 5438 in March, and the House of Representatives passed it unanimously in April. The bill will enable the state employment department to charge growers $500 per application to apply for H2-A workers, and $75 for each worker brought in. The funds will be used to set up an office tasked with monitoring labor, housing, and health and safety requirements for farms using the H2-A visa program, as well as prioritizing outreach to domestic farmworkers prior to H2-A recruitment.
In the last several years the state Employment Security Department, for instance, stopped conducting a survey of farm worker unemployment, which previously provided guidance on the number of local workers available. The bill would fund such studies, and the investigation of complaints by both H2-A and local laborers.
Prior to House passage, Community2Community and Familias Unidas por la Justicia held a Farmworker Tribunal at the capitol, in which workers spoke about living and working conditions, poverty and exploitation. In the subsequent House hearing Rep. Debra Lekanoff, the first Native American woman to serve in Washington's state legislature, charged that H2-A workers contributed $5000 each to Washington's economy, but that the Federal government was dumping the cost of enforcing the program's minimal protection onto the state. "Though this bill is not what we hoped for," she said, "it is where we are today. We will strive to take care of those H2A workers who have come to rely upon us to welcome them into our America."
Growers charged that they face a labor shortage, and that making the H2-A program more costly would only make matters worse. Pam Lewison, Director of the Initiative on Agriculture of Washington Policy, a market-oriented think tank, said that the increase in H2-A workers of 1000% since 2007, to 24,658 migrants recruited last year, showed "the successful program is effective, sustainable and popular with workers." It "enhanced dignity and respect for workers," she asserted. SB 5438 was not only unneeded, but "would make it harder for Washington state to hire legal, seasonal workers ... and provide much-needed income for migrant families."
Ramon Torres, however, told the legislature that to the extent that a real labor shortage exists, growers themselves were guilty of causing it. Before the explosive growth of the H2-A program, a large part of Washington's farm labor force consisted of people who live in California, and come north for work during the harvest season. "Who do growers think was harvesting their fruit all those years before H2-A," he asked.
Those longtime workers, who often have many years working for the same grower, call before the work starts, to ensure that there are living quarters ready for their families in the labor camps and jobs awaiting them. The journey of a thousand miles is expensive. Arriving with no work or place to live is a disaster for families already living in poverty.
"In the last few years, however, when those workers call they find out that the jobs and housing have been filled by H2-A workers," Torres charged. "They have no alternative but to look for work elsewhere. Workers aren't stupid. The more the H2-A program grows, the more the message goes out to the traditional workers that there's no work for them. But if growers decide to give them back their jobs, those workers will come back, especially if the wages are good and there's a union. Farmworkers in our community are ready to work and need these jobs. We believe that there is no shortage of farmworkers, and if there ever is a shortage, the union is ready to work with the growers to find needed labor."
Juan Infante thins fruit on red delicious apple trees. Photo by David Bacon.
So far, however, Washington State's bill is unique. Although H2-A recruitment is taking off in other states - in the last year increasing 38% in Georgia, 30% in Michigan, 24% in Arizona and California, and 20% in Florida - no other state is introducing its own legislation either to protect those workers or to ensure the program doesn't undermine the local workforce.
In fact, in Washington DC things seem to be moving in the opposite direction. Rep. Chris Collins (R-NY) last month introduced the "Helping Labor Personnel on Farms Act," H.R. 2801. The bill only has 4 co-sponsors. It would basically end the temporary nature of H2-A employment, allowing growers to recruit and use workers year-around for two consecutive years. Afterward workers would have to go home, with no way to gain permanent status or citizenship.
According to Farmworker Justice, "too many politicians and employers view agricultural workers as disposable inputs. Immigration status should not be a mere tool for conveniently acquiring or disposing of farmworkers. Legislators need to think about the real-life impact of these policies on farmworkers and their families."
Instead, Farmworker Justice and many farm worker unions, support the "blue card," the central provision of the Agricultural Worker Program Act of 2019. The bill would allow undocumented farm workers in the U.S., an estimated half of the agricultural workforce, to apply for resident status with an eventual path to citizenship.
While New York State isn't one of the top users of the H2-A program, and hasn't passed a law like Washington, its legislature did take an enormous step on June 19. It passed a bill that will set up a process for farm workers to win union recognition through a "card check," a process much easier and more favorable to workers than the NLRB-style election procedure. Furthermore, the proposed law includes a process for the mediation and arbitration of first contracts, once workers win recognition. And for the first time, New York farm workers will qualify for overtime pay after 60 hours or a seventh consecutive day of work, as well as disability and worker compensation.
California farm workers won mandatory mediation of first time contracts in 2002, and then tried to get card check recognition unsuccessfully some years later. The New York law's contract arbitration procedure is patterned after California's. California farm workers won the same overtime rights as other workers two years ago. Farm workers in Hawaii also have overtime and the right to organize unions under state law.
Nevertheless, California does lag behind in both getting card check recognition and in protections for H2-A workers and resident farm workers affected by the program. And California has by far the largest agricultural workforce in the country.
Jose Manuel and Alberto, two H2-A guest workers, cook meat for carne asada on a grill outside their barracks. Photo by David Bacon
It's not hard to understand why a state like Washington would have to compensate for the lack of action by the U.S. Department of Labor in protecting H2-A workers from abuse, and protecting local farm workers from being displaced by the program. Look at who's President. But why is Washington State the only state that has taken this action?
H2-A regulation is happening here because Rosalinda Guillen and Community2Community (C2C) have been fighting about the guest worker program for many years. The bill just passed by its legislature doesn't end it. That can only be done by Congress, as it did at the height of the civil rights era in 1964, when it repealed Public Law 78 and ended the bracero program. For C2C, "SB 5438 is not the end-goal, but sets up necessary State funding to ensure that Washington State farmworkers are protected and represented in the oversight process by increasing hiring of domestic workers."
Guillen, daughter of a farm worker family, was an organizer for the United Farm Workers in California in the late 1990s, and later became the union's representative in Sacramento when Dolores Huerta retired. Since returning to Washington State she and her allies have forced the state legislature to debate the impact of H2-A's growth. Those allies include Colombia Legal Services and the Northwest Justice Project, who representing both displaced local residents and guest workers themselves. C2C even won the support of the state labor council, after farm workers went on strike (in part because of concern over possible replacement by H2-A workers) in 2013 and formed the farm worker union, Familias Unidas por la Justicia.
In the last two years Familias Unidas por la Justicia has been called numerous times by H2-A workers who've taken job action at Sarbanand Farms, Larson Fruit, Crystal View Raspberry Farm and others. Familias Unidas has developed a reputation among H2-A workers, and has worked to create a more supportive environment for those workers themselves to take action.
The number of H-2A workers in Washington is now greater numerically than California, and they now make up a quarter of Washington's whole farm labor workforce. But California hasn't seen H2-A worker strikes like those in Washington, in part because the supportive environment hasn't been created. In Sacramento, aside from California Rural Legal Assistance, there are no organizations trying to highlight the danger of displacement of local workers by H2-A workers, as C2C has done in Washington.
Nevertheless, California is beginning to s see housing problems related to H2-A, and corruption among the contractors. [TAP last year covered the housing crisis in Santa Maria, big new H2-A housing projects in Salinas, and suits over contractor abuse.] CRLA has had several big H2-A cases, yet there's little media attention and no public outcry.
Democrats have a supermajority in both chambers of the legislature, and just won Congressional seats in the heart of big ag - the San Joaquin Valley. The governor, Gavin Newsom, is a San Francisco liberal. Yet you'd be hard pressed to find a California legislator who even knows what an H2-A worker is.
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