On Sunday, August 5, a group of 200 farmworkers and supporters began walking at sunrise along the shoulder of Benson Road, heading north from Lynden, Washington, toward Canada. When they reached O Road, the marchers turned right to walk along the border. Unlike the frontier with Mexico, with its walls, floodlights, and patrols, the border line here is no line at all—simply a road on each side of a weed-choked median.
The procession, chanting and holding banners, passed a succession of blueberry fields for the next 14 miles, finally reaching the official border crossing at Sumas. Pausing for a protest in front of the local immigrant detention center, it then continued on until it reached its objective one mile further on—the 1,500-acre spread of Sarbanand Farms. There, in front of the ranch's packing and warehouse facilities, participants staged a tribunal.
“We are here to assign responsibility for the death of Honesto Silva,” announced Rosalinda Guillen, director of Community2Community, one of the march's main organizers. A year before the march, Silva, an H-2A guest worker brought from Mexico to harvest the farm's blueberries, collapsed and later died.
Walking past the fields, one of Silva's coworkers, Raymond Escobedo (his name has been changed to protect his identity) remembers the day he died. “I could see he wasn't feeling well, and 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. Honesto continued to feel bad, and finally had to pay someone to take him to the clinic. When he got to the clinic he was feeling even worse, and they took him to the hospital in Seattle. And so he died.”
Sarbanand denied any responsibility for Silva's death, and claimed it was a manager who'd called an ambulance to bring him to the local clinic.
Silva's death, however, came on top of growing anger among workers about their living and working conditions. “From the time we came from Mexico to California we had complaints,” Escobedo says. “There was never enough to eat, and often the food was bad. Some of the food was actually thrown out. Still, they took money for it out of our checks. They took out money for medical care, too, but we never got any. The place they had us stay was unsafe and there were thefts. Some workers in California protested and the company sent them back to Mexico.”
Sarbanand Farms belongs to Munger Brothers, LLC, a family corporation based in Delano, California. Since 2006, the company has brought more than 600 workers annually from Mexico under the H-2A visa program, 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. Last year, it brought Silva and the other H-2A workers across the border. It took them first to Delano, and once they finished harvesting blueberries there, it transferred them to Sarbanand Farms in Washington.
“We thought that when we got to Sumas, things would get better,” Escobedo recalls. “But it was the same. There still wasn't enough to eat, and a lot of pressure on us to work faster, especially when we were working by the hour. They wouldn't let us work on the piece rate [which would have paid more]. But what really pushed us to act was what happened to Honesto, when he got sick and there was no help for him.”
Escobedo's account is at odds with a statement Sarbanand Farms gave to Univision following Silva's death. In it, the company claimed “it is always our goal to provide [the workers] with the best working and living conditions.” It called the barracks “state of the art facilities” and described the food as “catered meals at low cost.” Silva himself “received the best medical care and attention possible as soon as his distress came to our attention. Our management team responded immediately.”
Lynne Dodson, secretary treasurer of the Washington State Labor Council, was one of the marchers earlier this month. As upset as she was to hear about Silva's death, she says, she was even more outraged by what happened next. When they heard Silva had been taken to the hospital, 70 of his fellow H-2A workers refused to go into the fields, and instead demanded to talk with the company about the conditions. They were then fired. Because the H-2A regulations require workers to leave the country if they are terminated, firing them effectively meant deporting them.
“Workers may not leave assigned areas without permission of the employer or person in charge, and insubordination is cause for dismissal,” the Sarbanand statement says. “H-2A regulations do not otherwise allow for workers engaging in such concerted activity.”
(David Bacon)
That, Dodson contends, is a very dangerous policy. “If you get deported for collective activity,” she says, “that's basically saying you have no enforceable labor rights. No right to organize. No right to speak up on the job. No right to question working conditions without being deported.” This creates a threat, she charges, that goes beyond farmworkers. “Because H-2A workers are vulnerable, employers bring them in rather than hiring workers living and working in the area. What's to stop that from becoming the norm in every industry? Here in a state with almost 20 percent of the workers organized, we see a farmworker who died and others fired because they tried to organize. If this happens here, imagine what can happen in other states.”
Silva was only one of the many workers who die in U.S. fields every year—417 in 2016 alone. What has made his death stand out, however, is the way it has highlighted the conditions for H-2A guest workers at a time when growers and their Republican Party allies are seeking to expand the program.
In that effort, they have the support of President Donald Trump, despite his otherwise sour anti-immigrant rhetoric. At a Michigan rally in February, he told supporters, “For the farmers it's going to get really good. … We have to have strong borders, but we have to let your workers in. …. We're gonna let them in because you need them. … Guest workers, don't we agree? We have to have them.”
Companies using the H-2A program must apply to the U.S. Department of Labor, listing the work and living conditions and the wages workers will receive. The company must provide transportation and housing. Workers are given contracts for less than one year, and must leave the country when their work is done. They can only work for the company that contracts them, and if they lose that job they must leave immediately.
In 2017, Washington growers were given H-2A visas for 18,796 workers, about 12,000 of whom were recruited by WAFLA (formerly the Washington Farm Labor Association, a H-2A labor contractor). “We could be close to 30,000 this year,” says WAFLA president Dan Fazio. Last year, about 200,000 H-2A workers were recruited nationwide and brought to the United States. This year, the number is expected to exceed 230,000.
Over the past two years, H-2A expansion bills, authored by Republican Representative Bob Goodlatte, chair of the House Judiciary Committee, would have eliminated most of the very limited worker protections. Originally, Goodlatte introduced a stand-alone bill in 2017, the Agricultural Guestworker Act. Although that bill didn't get a vote in Congress, its main provisions were folded into a much larger, comprehensive bill that Goodlatte tried to pass this spring, the Securing America's Future Act, H.R. 6136. That bill failed by a vote of 193 to 231.
Following the failure of the stand-alone bills, Republican Representative Dan Newhouse, a cosponsor of H.R. 6136, won a promise from House Speaker Paul Ryan to hold a vote on guest-worker expansion before the end of July. Newhouse then inserted one proposal into the budget bill for the Department of Homeland Security. His proposal would allow growers to employ H-2A workers without being limited to temporary contracts of less than a year.
Critics charge that the change would make replacing current farmworkers with H-2A workers much more attractive to growers. According to Bruce Goldstein, president of Farmworker Justice, “The H-2A program is premised on the alleged difficulty of finding U.S. workers for seasonal farm jobs because they yield low annual incomes. … Agricultural employers with year-round jobs should do what any other employer must do to attract and retain workers: improve wages and working conditions.”
Another Newhouse effort involved placing a waiver into the 2018 appropriations bill that allows growers, for the first time, to use federal subsidies for housing for H-2A workers. While H-2A regulations require growers to provide housing (a provision Republican bills have sought to eliminate), this proposal would allow growers to use the very limited public funds for building housing for U.S. resident farmworkers on housing for H-2A workers instead. “There are many farmworkers who are living outdoors in cars, in garages, and many other places,” Goldstein said. “Any available subsidies to develop farmworker housing should be used to address the shortage for U.S. farmworkers and their families."
Washington state itself has also given farmworker housing subsidies to WAFLA and other growers who use the funds for H-2A housing. Daniel Ford at Columbia Legal Aid, Washington's legal service organization for farmworkers, protested to the state Department of Commerce. Ford notes that the department's own surveys showed that 10 percent of farmworkers 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.
This was not the first instance of very favorable treatment by Washington state authorities toward H-2A contractors and the growers who employ H-2A workers. Craig Carroll, for instance, ag programs director at the Washington State Employment Security Department (ESD) overseeing H-2A certification, spoke three times at WAFLA's “H-2A Workforce Summit” in Ellensburg on January 27, 2017. He shared the stage with Roxana Macias, director of compliance for the CSI H-2A recruiting agency. Macias herself worked for ESD for two years, and then for WAFLA for three years, before heading compliance at CSI.
(David Bacon)
This year, at WAFLA's instigation, the ESD and the U.S. Department of Labor effectively slashed the legal minimum for farmworker wages by up to $6 per hour. ESD is required to survey wages every year so that it can establish the Adverse Effect Wage Rate—a minimum wage for H-2A workers that theoretically won't undercut the wages of resident farm labor. In January, after ESD published its wage survey, WAFLA appealed to have the piece-rate wages removed, leaving only an hourly guarantee.
Last year's hourly AEWR wage was $14.12 an hour. In the Washington apple harvest, however, most workers are paid a piece rate that can reach the equivalent of $18 to $20 hourly. ESD and the Department of Labor agreed with WAFLA to remove the piece-rate minimum, effectively lowering the harvest wage by as much as $6 an hour. WAFLA President Dan Fazio boasted, “This is a huge win and saved the apple industry millions. Really glad we could help.”
Nor was this the first time WAFLA sought to manipulate the wage survey. In 2015, WAFLA told growers not to report piece-rate wages, just hourly ones. Fazio explained, “We want to encourage you to be smart and strategic in your answers to help yourself and the other people in your industry.”
Given this history, it came as no surprise to Washington state farmworkers and supporters that Sarbanand Farms would find itself freed from legal liability for Honesto Silva's death. In February, the Washington State Department of Labor and Industries announced that he'd died of natural causes, and that the company was not responsible. The department said it had investigated conditions there and had found no workplace health and safety violations.
Yet according to both Escobedo and a suit filed by Columbia Legal Services against Sarbanand Farms, Nidia Perez, who supervised workers on behalf of the H-2A recruiter CSI, had threatened workers there before Silva's death, telling them that they had to work “unless they were on their death bed,” and that they had to pick two boxes of blueberries an hour or they'd be sent back to Mexico. (Sarbanand has not responded to the allegation or to calls to the company for comment.) A temperature of over 90 degrees “was in normal ranges and given that the workers are accustomed to working in much higher temperatures in California and Mexico, it is very unlikely that heat played a role,” claimed the pro-grower website protectfarmworkersnow.org. Heavy smoke from forest fires on the day Silva collapsed played no role either, it seems.
In February, Sarbanand Farms was fined $149,800 by Washington's Department of Labor and Industry for not providing required breaks and meal periods, an amount a judge later cut in half in July. The food was fine as well, apparently. “We were unable to substantiate the concern regarding the quality or quantity of the food provided,” ESD's Craig Carroll wrote in an August 7 email.
Assessing the size of the fine, march organizer Guillen told the workers' tribunal by the entrance to Sarbanand Farms, “We completely reject the idea that Silva's life was worth $75,000. No amount of money can pay for the life of a farmworker.”
Jimmy Matta, mayor of the Seattle suburb of Burien, also marched in the protest. Matta had been physically attacked at an outdoor event in Burien in late July because of his support for Burien's immigrant sanctuary ordinance. The incident, which is being investigated by the FBI, followed a well-funded anti-immigrant campaign against Matta and the ordinance.
“It's been said that H-2A workers are being taken care of, that they have everything they need,” Matta commented bitterly. “Unfortunately, here we have an individual that wasn't taken care of. They made him work. He suffered from heat exhaustion. And now we have an individual who will never see his family again.”
