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By David Bacon

The Nation, September 27, 2004

        JULIO CESAR GUERRERO came north from Mexico in the spring of
2001 as a temporary contract worker. Recruited by Manpower of the
Americas, he was sent to North Carolina, where he began working on 
the tobacco farm of Anthony Smith. After a few weeks, his fingers 
started to hurt, and then one by one, his fingernails began falling 
off. Although Smith told him he couldn't see a doctor, he went 
anyway. The doctor said his problem was possibly caused by working 
without gloves in fields sprayed with pesticides. So Guerrero, who 
was employed through the H2-A federal guest worker program, called 
North Carolina Legal Aid.  But Smith warned him not to talk with 
legal workers.
        Guerrero returned to Mexico at the end of the season. The 
next year, when he tried to get another job, he found his name on a 
blacklist maintained by MOA and the North Carolina Growers 
Association. Legal Aid protested, and as a result, Guerrero was sent 
to the United States again. That year, he worked for grower Rodney 
Jackson, who kept the workers' drinking water on a moving truck in 
the fields, forcing them to run after it with their mouths under the 
spigot. When Guerrero filed a complaint with OSHA, Jackson gave a 
warning notice, and asked him to sign it. When Guerrero refused, 
Jackson fired him. A foreman took him to the bus station, telling him 
to go back to Mexico. Again Legal Aid intervened, and got him 
assigned to another grower. Soon a growers' association 
representative gave Guerrero another warning notice, which he again 
refused to sign.
        When the 2003 season began, Guerrero tried once more to sign 
up with MOA, but the recruiter told him that he'd already been given 
a second chance. Since he'd continued to make complaints, his name 
stayed on the blacklist.
        Guerrero had had enough. In 2004 he became a plaintiff in a 
racketeering suit filed on April 13 in Wake County Superior Court, by 
Legal Aid of North Carolina, charging the NCGA with maintaining an 
illegal blacklist.
        While Guerrero's case winds its way through the courts,
proposals for setting up new temporary contract worker programs, in 
industries far beyond agriculture, are proliferating. In fact, such 
schemes are part of most immigration reform proposals introduced into 
Congress this year. Their defenders argue that increasing labor 
protections can put a stop to abuses, while ensuring that employers 
get the labor they want. However, Guerrero's experience, and that of 
thousands of workers like him, raises serious doubts that these 
programs can effectively safeguard workers' rights.
        Andrew McGuffin, staff attorney for North Carolina Legal Aid, 
cautions, "the problem isn't that we don't have worker protection 
laws. It's that with guest workers they're not enforced, and when 
workers try to use these laws, they're blacklisted."
        The growers, through NCGA, and Legal Aid have been squaring 
off for years. The growers' handbook warns workers not to talk to 
Legal Aid staff, calling them "enemies of the H2-A program" who are 
"trying to eliminate your job." The manual also warns workers that 
any effort to "deliberately restrict production" or to "work slowly" 
will result in discipline or termination. Strikes or slowdowns are 
        Last September, a foreman for grower Chester Pilson informed 
guest worker Juan Villareal Abundiz that there was no more work for 
him because he'd talked with Legal Aid, and an NCGA rep told him he'd 
probably be denied a job the following season. Villareal was brought 
to the association office in Vass, North Carolina-a huge barn with a 
balcony along one side. As 200 workers gathered below, a foreman 
named Santos and an NCGA employee addressed them from the balcony, 
instructing them to take Legal Aid's pink "know your rights" booklets 
out of their pockets and throw them in a trashcan in the middle of 
the floor.
        According to Villareal, NCGA head Craig Eury and his 
assistants gave him a paper he couldn't read, and told him if he 
didn't sign it, he'd have to pay his own bus fare back to Mexico. 
Villareal signed.
        The blacklist is not secret. The manual calls it a "record of 
eligibility [which] contains a list of workers, who because of 
violations of their contract, have been suspended from the program." 
Although the manual says no one will be disciplined for reporting 
violations of their rights, in fact that happens all the time.
        US Department of Labor, which certifies employers for the 
H2-A program, has never taken action to end the practice. Bush's 
first DoL Solicitor General, who would have had to support such 
action, was former union-busting lawyer Eugene Scalia (son of Supreme 
Court Justice Antonin Scalia). He was replaced in DATE TK by Howard 
Radzely, another management-side lawyer and former Scalia clerk.
        The 1997 list, called the "1997 NCGA Ineligible for Rehire 
Report," consists of 1,709 names. The reason for ineligibility is 
most often listed as abandoning a job or voluntary resignation. Legal 
Aid charges that when workers are fired for complaining, they're 
given a paper to sign saying they quit voluntarily. Among the 
hundreds of names are also many whose reason for ineligibility is 
given as "mother sick," "death in the family," "lazy," "slow," "work 
hours too long," "work too hot and hard," or "slowing up other 
workers." In 2003, the list for just one Mexican state, Durango, had 
517 names.
        Abuse of the H2-A program isn't limited to North Carolina,
however. The most spectacular suppression of guest workers' rights 
came on November 21, 1986, when Caribbean cane cutters stopped work 
on the Fanjul family sugar plantation in south Florida. The Fanjuls 
tried to pay a rate lower than that specified in the work contract, 
and 384 cutters refused to leave their labor camp. The family called 
in the cops, who used guns, batons and dogs to force workers onto 
buses, some in their underwear. They were taken to Miami and deported.
        Workers called it the "dog war." Nine years later, Okeelanta 
Corp., owned by the Fanjuls, agreed to pay 355 people $1,000 each to 
compensate them for lost belongings, and $20,000 to Florida Legal 
Aid. Although the claim for lost wages was dismissed by the Palm 
Beach Circuit Court, the Department of Labor eventually fined the 
Fanjuls for shorting workers' hours and underpaying wages. In the 
1990s, Okeelanta was charged with cheating guestworkers of $14 
million because it paid $3.70 a ton instead of $5.30 from 1987 to 
1991. But the jury was never told the company had agreed with the 
numbers, and so it found for the Fanjuls instead of the workers, a 
decision upheld on appeal. Rob Williams, director of the 
Tallahassee-based Migrant Farm Worker Justice Project, told the Palm 
Beach Post that "the lasting lesson of all this is that our 
government will not voluntarily protect the rights of guest workers."
        Guest workers in Canada, who work under a program like H2-A, 
had similar experiences. On April 29, 2001, Mexicans laboring in 
Mastron Enterprises' tomato greenhouses in Leamington, Ontario, 
stopped work over complaints of abuse by a foreman. The day following 
the protest, 24 were deported.
        Other workers told representatives of the United Farm Workers 
that they had been working 12-hour days, 6 1/2 days a week, without 
overtime pay, for $7 an hour. "What I've realized here in Canada is 
that employers don't hire us as human beings," one worker told the 
UFW. "They think we're animals. The first threat that they always 
make is that if you don't like it, you can go back to Mexico." Chris 
Ramsaroop of Justicia for Migrant Workers observes, "To change their 
situation migrants must be guaranteed the right to form unions, the 
right to social and economic mobility in Canada, and most important, 
the right to regularization: Workers must have the right to apply for 
citizenship in Canada."
        If Canadian guest workers can't get rights like these, in a 
country where labor rights are more vigilantly enforced, how likely 
is it that US guest workers will fare better?
        According to the AFL-CIO, workers are routinely fired in 31 
percent of all US union organizing drives. Most then face, in 
addition, disqualification from unemployment benefits as a result of 
the bogus pretexts that accompany such terminations. For guest 
workers, however, just being without a job violates the conditions 
for their visas, and makes them subject to immediate deportation.
        In addition, they're strangers. It's much more difficult for 
them to find support from unions, legal aid workers, or other 
community institutions. Jorge, a guest worker from Huehuetenango in 
Guatemala (who didn't want his real name used for fear of the 
blacklist), explained that when he was cheated on his wages "we 
didn't protest because we couldn't. We were far away from the company 
office," he said, "and maybe the next year they wouldn't give us the 
chance to go [to the US again]."
        For Fernando Rodriguez Aguilar, even getting help from a 
priest was forbidden. Rodriguez was brought to North Carolina in 2002 
to work for tobacco grower Jeffrey Lee in rural Johnston County. When 
he saw the crew leader selling alcoholic beverages in the fields, and 
cutting the hours of workers who wouldn't buy them, he complained to 
Father Tony Rojas. Then NCGA representative Jose Luis told him he 
shouldn't go to Father Tony's church. "If you keep going, you'll have 
problems," he threatened. Sure enough, the following season, MOA put 
Rodriguez on the blacklist.
        John Wilhelm, president of the Hotel Employees and Restaurant 
Employees International Union, who also heads the AFL-CIO's 
immigration committee, says, "I don't think it's possible to have 
labor protections for contract workers." Pointing to the fact that 
even workers who are US citizens lose their jobs during union 
organizing campaigns, he says, "To think the law will protect people 
whose right to stay in the country ends with their job is not living 
in the real world."
        Often the most important factor for workers, however, is the 
situation they face at home, in the communities from which they come. 
"More than the law, it's the dynamics of the [guest worker] program 
in developing countries that's the problem," says Mary Lee Hall, from 
North Carolina Legal Aid.
        That problem is debt.
        In the tiny towns of La Democracia and La Libertad, in 
northern Guatemala next to the Chiapas border, small coffee farmers 
are sent every year to US pine forests, where they work as H2-B guest 
workers, planting and tending trees that will eventually be ground to 
pulp for the southeast's huge paper mills. In 2001, Silvano 
Villatoro, a recruiter in La Democracia, offered Cecilio Domingo a 
job, for which he charged him 10,000 quetzales (about $1200). 
Domingo's wife, Natividad Maldonado, remembers that her husband 
"borrowed the money, hugged our children, and left." They signed over 
the deeds to their two plots of land to the local moneylender, who 
charged 12 percent interest. Maldonado was left with no money. 
"Because we are so poor, I took my son, who is twelve, and we went to 
cut coffee."
        After working eight months in the US, Domingo was traveling 
through the Maine woods in a van that tumbled off a bridge into the 
Allagash River. He and fourteen other guest workers were drowned. 
Fortunately, he'd sent enough money home by that time for his wife to 
pay most of the debt.
        The sole survivor of the Maine accident, Edilberto Morales, 
had accumulated a huge debt of 30,000 quetzales by the time he began 
working in the US. Debts this large are impossible to pay off by 
working in Guatemala, where wages on a coffee plantation are 25 
quetzales a day. "That isn't enough to support your family," says 
Virgilio Maldonado, another guest worker. "That is barely enough to 
eat." Only work in the United States enables someone to pay the debt 
and keep their home and land. And of course the dream is always that 
by continuing to work, a family can add a room on a house, or buy 
more land and fertilizer for bigger coffee harvests. But to return 
year after year, workers must stay on the good side of the recruiters.
        Recruitment for the H2-B program has made Silvano Villatoro a 
wealthy coffee planter. During Guatemala's bloody counterinsurgency 
war he belonged to the paramilitary Civil Defense force in La 
Democracia, which aided the army. Today he has become a power in 
town. Villatoro doesn't need a formal blacklist-"I interview each 
person individually," he says. He doesn't take teachers and students.
        Villatoro recruited the workers who died in the Maine 
accident for Evergreen Forestry Services, a company fined many times 
for wage and hour violations. Despite these violations,  Evergreen 
was certified by the Employment Training Administration (part of the 
Labor Department) every year to import H2-B workers. Paper companies 
who hire Evergreen and recruiters like them say they're not 
responsible for labor violations, a position with which courts have 
agreed. And when it looked like Evergreen could be on the hook for 
huge damages because of the Maine accident, it suddenly stopped 
answering its phone in Sandpoint, Idaho. "The company I represented 
for six years no longer exists," Villatoro said.
        Guest workers are not the only migrants vulnerable to 
economic pressure. It can be as perilous to lose a job for an 
undocumented worker as it is to lose one as a guest worker. In fact, 
the debt accumulated by paying a smuggler to go from La Democracia to 
the United States is even higher-about $6,000.
        But for almost anyone living in La Democracia, or the 
thousand Guatemalan and Mexican towns sending people to the United 
States, these are the two choices.
        In Oaxaca, a Mexican state to the north, Juan Romualdo 
Gutierrez Cortez heads the Binational Indigenous Oaxacan Front. The 
Frente organizes those left behind in the small towns that send 
migrants north. "Migration is a necessity, not a choice-there is no 
work here," he says. Gutierrez is a teacher: "You can't tell a child 
to study to be a doctor if there is no work for doctors in Mexico," 
he explains. "Children learn by example. If a student sees his older 
brother migrate to the United States, build a house and buy a car, he 
will follow that American dream."
        Gutierrez and his compatriots recognize the dual nature of 
this imperative. "The million migrants from Oaxaca have reactivated 
the economy of many communities. Migration helps pacify people. 
Poverty is a ticking time bomb and as long as there is money coming 
in from the US then there is peace. To curb migration our country has 
to have a better employment plan. We must push our government to 
think about the working class." Rick Mines, who directs the 
California Institute for Rural Studies, points out that migrant 
communities fared much better when whole families were able to 
migrate and settle in the United States. "Labor unionization, civic 
participation and wage levels all improved, as settled immigrants 
demanded better conditions. Families are better at protecting their 
rights than single men. Wives and mothers frequently become involved 
in US institutions and learn about their rights, helping to mobilize 
workers to stand their ground against unscrupulous employers."
        So far, however, proposals for immigration reform are crafted 
more to meet the demands of business interests than the need for 
stable communities and families. The Essential Worker Immigration 
Coalition, which includes 34 major industry associations, has been 
particularly effective in lobbying for guest workers for the past six 
years. The Bush immigration reform, unveiled in January, basically 
embodies their program. It would allow employers to use a new 3-year 
temporary worker category to recruit 300,000 migrants annually. It 
would even force the approximately 6.5 million undocumented workers 
currently in the US to sign up as temporary workers, as a step 
towards a very uncertain eventual legalization. Following Bush's 
announcement, Senators Tom Daschle and Chuck Hegel introduced a bill 
featuring many administration proposals, especially the temporary 
worker expansion.
        But employers have worked both sides of the aisle, and more 
recent liberal proposals also set up new temporary worker categories, 
softened with provisions for greater labor protection. Unlike the 
Bush scheme, the Gutierrez-Kennedy Bill, nicknamed the SOLVE Act, 
would not force currently undocumented workers to become guest 
workers. Instead it would allow people who have lived in the US for 
the past five years, and worked for two years, to apply for legal 
status.  It would, however, allow employers to bring in up to 350,000 
additional temporary workers, presumably through a recruitment system 
similar to the current one. Temporary worker visas would be 
renewable, and last for either 9 months or two years. Workers could 
bring spouses and children, and change employers after three months.
        The most liberal proposal was introduced by Texas Congress 
member Sheila Jackson Lee, and is supported by members of the 
Congressional Black Caucus. It would allow people to normalize their 
status based on residency in the US, and would expand the numbers of 
permanent residency visas. It contains no temporary worker program.
        Growers and farm worker unions have agreed on a joint 
proposal, called the AgJOBS Bill, relaxing housing and wage 
requirements in current guest worker programs, and making it easier 
for growers to claim labor shortages, in exchange for a broad 
legalization program for undocumented farm workers.
        Behind disagreement between individual provisions, however, 
is a deeper division over the purpose and nature of migration. How 
far should US immigration policy be shaped by the desire of US 
employers for labor? Should migration produce strong communities able 
to assert their rights, or should it supply labor to industry at a 
cost it wants to pay?
        Rick Mines points out that "there is no question that Mexican 
labor and the US industries that rely on it are profoundly 
interdependent, and this cannot and will not be eliminated with 
simple, unenforceable policies. The issue is not how to end this 
relationship, but how to lessen its negative effects."
        In a world in which over 130 million people live outside the 
countries in which they were born, the flow of people across borders 
is inexorable and growing. Immigration policy, rather than halting 
this process, affects the status of migrants in their new host 
countries. The UN Convention on the Status of Migrants and Their 
Families tries to guarantee a new set of rights for migrants 
corresponding to this new era of heightened global migration. It 
holds both sending and receiving countries responsible for their 
welfare, and proposes the goal of equal status of migrant and 
non-migrant people. Predictably, countries sending migrants have 
ratified it, and those receiving them have not.
        Despite their name, in guest worker programs,  "People are 
treated neither as guests nor as workers," says Andrew McGuffin, "but 
as slaves for rent." Rather than competing for workers by raising 
wages, employers seek a less expensive, more vulnerable labor force. 
If supplying this labor force is a primary goal of immigration 
policy, then legal protections for guest workers cannot be 
guaranteed, since they contradict its essential purpose.

Update:  On September 16, the Farm Labor Organizing Committee signed
a contract with the North Carolina Growers Association, to represent 
approximately 8,000 guest workers employed by growers producing for 
the Mount Olive Pickle Co.  The contract, according to a FLOC 
announcement, includes hiring by seniority, a grievance procedure and 
wage increases, and will end the use of the blacklist for workers 
covered by the agreement.

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