By David Bacon
The American Prospect / Capitol & Main – 6/23/23

Company housing provided to H-2A mushroom workers. Photo courtesy Elizabeth Strater.

Mushrooms grown for the supermarket thrive on a mixture of straw and manure.  Huge piles of it are heated to prepare the growth media, spreading the pungent stink of ammonia through the barns.  Metal trays, covered with the resulting dark soil, are stacked high into the sheds’ moist darkness.  Soon the familiar round white caps appear.  Workers enter and cut their stems, placing them in 10-pound boxes.  Runners ferry them out to a checker, where they’re weighed and counted.

An individual mushroom is very light, so picking 68 pounds an hour, as Ostrom Mushroom Farms demanded, meant working like a demon in the dark.  “It’s really hard,” according to Jose Martinez, a fired Ostrom worker.  “The smell was terrible.  There were chemicals in the growing mix, which made it smell even worse, and they wouldn’t tell us what they were.  The foreman would joke, ‘Don’t worry, you won’t die!’  If a picker protested, a supervisor would tell her, ‘If you don’t like it, there’s the door!’”

Last year the company did show the door to dozens of its workers, replacing experienced women pickers with crews of men.  And in May Washington State’s Attorney General, Bob Ferguson, found these firings constituted massive violations of worker protection regulations.  He forced Ostrom into a record $3.4 million settlement.  “It’s obvious what they did,” Ferguson told a May 17 news conference. “They’re not paying $3.4 million to the state of Washington unless they did something wrong.”  Ostrom’s money will pay damages to 170 of its former workers.

The Ostrom case is historic, not just because workers were fired as a result of sex discrimination, protests and failure to meet production quotas.  The company used contract laborers on H-2A temporary visas to replace them.  “This settlement validates what we’ve been saying for years,” charges worker advocate Rosalinda Guillen, a member of the state commission formed to monitor the negative impact of the controversial H-2A visa program.  “It is inherently abusive both to the workers brought to the U.S., and to the local workers the companies replace.  It’s not called ‘close to slavery’ for nothing.”

Ostrom has gone out of business, so no representative could be reached for comment for this article.

* * *

Ostrom began operating a mushroom shed in Sunnyside, a small farmworker town in the Yakima Valley, in 2019.  Martinez went to work there soon after, fabricating the metal growing trays.  “I saw women crying because of the way they were mistreated,” he recalls.  “Supervisors threatened them to get them to work faster.   They were afraid they’d lose their jobs.”

Martinez and organizers for the United Farm Workers began holding meetings to talk about forming a union.  “People started to lose their fear,” he says.  “At first there were seven at a meeting, then fourteen, then more.  We talked about the low wages, and about fighting for our rights.”  Workers were particularly incensed, he says, when the production quota was raised to 65 pounds an hour.  Their protests briefly got it lowered to 50.

Then Ostrom began bringing in H-2A workers. Under that program, growers and labor contractors can recruit workers in countries like Mexico and bring them to work in the United States for a period of less than a year. Growers must file an application to bring the workers in, called an H-2A Agricultural Clearance Order.

The company’s H-2A Agricultural Clearance Order, filed with the U.S. Department of Labor, called for 70 workers who would start on December 15, 2021, and return to Mexico after August 15, 2022.  They’d be paid $16.32 per hour, or a piece rate of 23¢ per pound.  To earn more than the hourly wage at that piece rate, the H-2A laborers would have to pick over 71 pounds per hour.  

In the Clearance Order the company said that meeting the 71 pound quota “is a requirement to hold the position of full time Harvester.”  To ensure they had a crew able to do it, Ostrom’s labor contractor, H2 Visa Solutions, hired young men almost exclusively.  Under the visa program rules, these workers could only work for Ostrom, and the company could fire them for any reason, including failure to meet the quota.  Terminated workers have to leave the country immediately, and are routinely blacklisted by recruiters, who deny them work in following years.

According to the Attorney General’s complaint, from January to May, 2022, the company employed 180 local workers, mostly women, who lived in the Sunnyside area.  Starting in December, 2021, three month before the H-2A workers arrived, “managers began calling domestic [local] pickers into one-on-one meetings in which the domestic pickers were told they were not meeting production minimums, and would be receiving a warning along with a three-day, unpaid suspension if their performance did not improve. The pickers were told they would be fired if they did not meet the production minimum within a week of returning from the three-day suspension.”

The quota for the mostly-women local workforce was increased from 62.5 to 68 pounds per hour.  At the same time, the company stopped letting workers know their actual production rate.  Pickers often have to clean the growing rooms and dispose of garbage, but time spent doing this work was counted as though it was time spent picking, and subject to the quota.  “It was very stressful,” Martinez says. “The company used the pressure of the H-2A workers, right next to the local workers.  They told the H-2A workers not to talk with us.  Almost all were indigenous people from Guerrero and Chiapas, and many didn’t speak Spanish.”

The complaint charges the local workers were given written warnings, suspended, and then terminated.  “Female domestic pickers received these warnings and unpaid suspensions more frequently than their male counterparts and were therefore terminated at a higher rate than their male counterparts … At least some female pickers believed that [Ostrom] instituted these changes in order to have a reason to suspend and terminate workers who they wanted to force out … From early 2021 to May 2022, [Ostrom] terminated approximately 79% of their domestic pickers and 85% of their female pickers.”

* * *

Under the visa program rules, Ostrom had to give hiring preference to local workers.  Before bringing H-2A workers, it was required to advertise the jobs to the local community, and had to pay local workers at the same rate.  But while paying a guaranteed $17.41 per hour to the contracted laborers, it paid a lower wage to local residents.  While Ostrom’s public advertisements, and even the Clearance Order, required a minimum of three months experience, few of the H-2A workers met the bar.  Local applicants were rejected if they didn’t meet it, however.  

The company’s Facebook job advertisement, the only outreach effort it made, said it would hire “solo personal masculino,” – only male personnel. According to attorney Edgar Aguilasocho, vice president at Martinez Aguilasocho Law Inc. and general counsel for the UFW Foundation, the hiring process has to be approved by the Washington State Employment Security Department, and then the employer simply self-reports the results.  “It’s strange the petition [for H-2A visas] was approved,” he says.  “Many domestic workers applied and were denied.”  Ostrom reported hiring four local women while hiring 65 male H-2A workers.

According to Colombia Legal Services attorney Joe Morrison, legal aid offices have brought numerous suits in the past over the same violation.  Columbia Legal Services sued a large Washington State winery, Mercer Canyons, in one celebrated case reminiscent of Ostrom’s.  Garrett Benton, manager of the company’s grape department, testified that many of Mercer Canyons’ longtime local workers were told there was no work available, or were referred to jobs paying less than the wages of H-2A workers.  He charged that local workers “felt strongly that they were given harder, less desirable work for less pay.  Mercer Canyons 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 a $1.2 million settlement, of which local workers received $545,000.

Growers have little to fear for violations of the H-2A program rules.  In 2019, out of 11,472 employers using the H-2A program, the Department of Labor only filed cases against 431 (3.73 percent), and of them, only 26 (0.25 percent) were barred from recruiting for 3 years, with an average fine of $109,098. “Lack of enforcement is a chronic problem, and characteristic of a program set up to meet grower needs,” according to Guillen.

On June 22, 2022, local workers at Ostrom tried to meet with the company to protest the discrimination.  Instead of talking with them, according to the Attorney General, managers retaliated against them.  One woman was assaulted by a supervisor.  Several received unjustified warnings, a step towards being terminated.  

Later in September workers tried to deliver a petition, and were sent home early without pay.  A month afterwards, the local workers were told they would have to bring in their immigration documents to demonstrate their legal status.  Such reverification of documents, which the company had seen and accepted at the time they were hired, is a form of intimidation in a workforce where many may lack legal immigration status.  “[Ostrom] started re-verifying workers after its workers began advocating for fair and nondiscriminatory workplace conditions,” the AG’s complaint charges.

Many workers were laid off that fall, including Martinez.  He was recalled, but only given a position picking mushrooms, instead of his old job building the metal trays.  He was also given a quota, and then written up when he couldn’t meet it. Finally he was fired as a result of his organizing activity, he believes.

Ostrom sold the Sunnyside mushroom farm this February to a Canadian company, Windmill Farms, which also runs two barns in Ontario.  Its subsidiary, Greenwood Mushrooms Sunnyside, then sent a letter to all the local workers, telling them to apply for the jobs they were already doing.  They also had to reverify their immigration status.  

Windmill Farms didn’t respond to a request for comment from Capital & Main, but in a statement to The Seattle Times, CEO Clay Taylor said the company is “committed to providing a healthy, safe and supportive workplace.”

* * *

The use of H-2A workers to put production pressure on local farmworkers, and eventually replace them, has become a critical issue because of the rapid growth of the program.  Over 317,000 H-2A workers were brought to the U.S. in 2021, an increase of 15 percent over the 275,000 in 2020, and three times the 100,000 of 2013.  In Washington State the number grew by 1000 percent from 2007 to 2019, reaching 34,190 in 2022, or over a third of the total farm workforce (89,943 in 2021).

The U.S. Department of Labor is supposed to enforce worker protections, and keep H-2A workers from displacing local farm workers.  The protections, however, are often non-existent.  While the Washington State Attorney General was able to charge Ostrom with discriminating against women within the state, for instance, it is not illegal for H-2A recruiters to hire only men.  According to Daniel Costa, Director of Immigration Law and Policy Research at the Economic Policy Institute, “an employer may select an entire workforce composed of a single nationality, gender, or age group.”

Further, “employers and recruiters can also weed out workers who might dare to speak out against unlawful employment practices, assert their legal rights, or organize for better working conditions by joining or forming a union,” Costa says, “by firing them and effectively forcing them to leave the country, or by threatening to blacklist them.”

The number of investigations of wage and hour violations for farmworkers in general has actually declined from 2000 per year in the early 2000s to 1000 per year in 2021. There are 30 fewer investigators of labor standards violations for all workers today than there were in 1973.

Meanwhile, enforcement responsibility runs up against an administration policy that has encouraged the growth of the program, under both Democrats and Republicans.  At an April 2017 White House meeting President Donald Trump told growers that, although he was targeting undocumented people for deportation, he would make the H-2A program easier for them to use.  He then tried to relax wage requirements, an initiative the Biden administration rolled back on taking office.  

Yet President Biden continues to favor the growth of the program.  Samantha Power, administrator of the U.S. Agency for International Development, thanked one meeting of growers at the U.S. Department of Agriculture last September for working with the administration on “a critical priority – expanding the pool of H-2 farmworkers from Central America, specifically from El Salvador, Guatemala, and Honduras … We have got your back,” she promised them.  “We are committed to helping maintain a strong pipeline of experienced farmworkers to support you.”  

Since this policy will add to the numbers already being brought by growers from Mexico, the overall growth of the program is inevitable, along with the problems it poses for farm workers already living in the U.S., most of whom are immigrants themselves.  Ironically, the UFW itself is associated with an H-2A recruiting program called CIERTO, which operates in Central America in cooperation with the U.S. Department of Agriculture.  At the same time, UFW President Teresa Romero has called abuses of the program “close to modern day slavery,” and the union has advocated reforms.

When Romero went to Sunnyside to support the Ostrom workers, she investigated the housing the company was providing its H2-A workers.  Elizabeth Strater, a UFW representative, says that the company had told the Labor Department it was housing them in a public housing complex.  “But we found that the workers weren’t there,” she says.  “Instead they were living in what looked like an abandoned chicken coop.  The state was supposed to inspect it, but obviously they just took the company’s word.”

The protests by workers, and the investigation and complaint by the Attorney General, were apparently effective in keeping Windmill Farms from bringing in another crew of H-2A workers this year.  But Martinez says that every day vans carrying dozens of new workers appear at the Sunnyside barns, while the fired workers have not been rehired.  An inquiry to the Attorney General’s office, asking why the rehire of the illegally fired workers was not part of the settlement, was not answered.  

Nevertheless, workers continue to rally to demand union recognition.  “We have weekly meetings of our organizing committee,” Martinez says, and with the monetary settlement attendance is up. “People were very happy.  In addition some may be able to get help with their immigration status because they’re witnesses or victims of violations.  Some want to go back, while others say the mistreatment was too much.  I’m sure the company doesn’t want to call me back because I helped start the union, but I’d go.  We all have to work.  And we’re going to keep going until we get the union in.  They can’t stop us.”

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