Agricultural Personnel Management Program
University of California

10/30/99 News Report -- Charlotte Observer (North Carolina)

The temperature had climbed to 95 degrees, but humidity made it feel like 105 the day Carmelo
Fuentes fell in an Eastern North Carolina tomato field.

Fuentes, then 36, had been picking most of the day. Though weak and dehydrated, he said he
only wanted a short break, according to his employer. "That boy said he was fine and just
needed to rest," said Brent Jackson, owner of the Sampson County farm.

But state investigators found a supervisor dangerously ignored the first signs of heat
stress. Heat stroke soon shut down Fuentes' internal organs, causing severe brain damage.

Today - 14 months later - Carmelo Fuentes lies mute and motionless on a rusted bed at home in
central Mexico. He breathes through a tube in his neck. Doctors say his chances of recovering
normal brain function are poor.

"I begged him to be careful of the heat," said Porfirio Fuentes, his father.

Nobody can know exactly what Carmelo Fuentes said about how he felt that July day in 1998.
But as a veteran working his third N.C. harvest, he likely understood what some say are the
unwritten rules of the government program that brought him to an N.C. farm 2,000 miles from
home.

Work fast, or lose your job to somebody who is faster. Complain about your living or working
conditions, and you're sent back to Mexico. Get sick or injured, and you're off the list of workers
invited back next season.

An estimated 10,000 foreign farm workers - most from Mexico and all, like Fuentes, legal
immigrants - will work in N.C. fields this year in the federal H-2A program. North Carolina has
become the largest user of H-2A "guestworkers" under a 1986 immigration law that allows U.S.
growers to import temporary farm labor when U.S. workers are in short supply.

Fuentes' injury and the deaths in North Carolina of at least two H-2A workers since 1995 have
intensified debate about the program. Farm worker advocates say H-2A workers, with fewer
rights than U.S. workers and even other migrant workers, live and work under conditions that
recall a similar farm worker program outlawed 35 years ago. Critics also say H-2A growers use
blacklists and other tactics to keep workers silent and productive.

They cite reports from two federal watchdog agencies that conclude the H-2A program leaves
workers vulnerable to health and safety risks and exploitation.

Growers' supporters in Congress are pressing a proposal that would expand the use of legal
foreign farm workers. Its impact on H-2A is unclear.

In this battle, no one has more at stake than Stan Eury and the N.C. Growers Association. Eury
founded it in 1989 and has built a multimillion-dollar business that supplies foreign labor to
1,050 N.C. growers, as well as those in 16 other states, aided in part, say two federal
investigations, by weak government oversight.

Eury said opponents of the H-2A program try to paint the association "as the big bad grower.
But we have thrived because we are a progressive employer. This is the best thing that ever
happened to farm workers," he said.

From headquarters in Vass - halfway between Sanford and Pinehurst - Eury's association and an
affiliated company now control half the 30,000 H-2A workers imported each year.

In North Carolina, the association has expanded H-2A hiring to 10,500 last year from 168 in
1989. S.C. growers began using H-2A workers this year for the first time, ordering 800 from a
for-profit company Eury runs called International Labor Management.

"We're serving a need," said Eury, who says that growers can't find enough U.S. workers willing
to do bend-and-stoop field work.

He said H-2A workers fare better than undocumented foreign workers or U.S. migrant workers
because they have workers' compensation, earn more than the minimum wage and are provided
with housing and transportation.

Growers like David Sherrill of David's Produce in Ellerbe pay the association $498 per worker
plus a $200 annual membership fee. Sherrill's crew members say they like working for him;
more than a few H-2A workers ask to return to the same farm each year.

Sherrill once hired only U.S. workers. "You'd look out on the fields and they'd be leaning on
their hoes.

"But Jessie," he said, referring to 53-year-old Jesus Patino Rojas, "Jessie is a machine in the
fields."

But Rojas' government is concerned about North Carolina's H-2A workers. In June, the Mexican
Embassy in Washington sent two investigators to the state to look into alleged abuses.

"We have had good experiences in Georgia and Virginia and very ill experiences with North
Carolina," said Gustavo Mohar, director of political and congressional affairs for the embassy.

"In North Carolina, private interests have built an infrastructure that was not really the intention
of the legislation."

In many ways, federal investigators and some immigration experts say, H-2A bears troubling
resemblance to an earlier program with Mexico, set up in 1942 to ease a wartime labor shortage.

Congress shut down the bracero program in 1964 after Edward R. Murrow's legendary "Harvest
of Shame" television documentary exposed squalid living conditions and abuse in Florida.

"H-2A absolutely echoes bracero," said Joel Najar, an immigration expert for the National
Council of La Raza, a Washington organization that provides legal advice for and advocates on
behalf of Hispanics.

Najar said bracero - which means "arm man" in Spanish - protected workers on paper but not in
reality.

"It was killed (by Congress) because it was so inhumane. H-2A is the same."

Eury said there is no comparison. He said H-2A employees are not intimidated or coerced, and
that federal regulations are stronger now than in the days of bracero.

"We have to have these guys as employees. We don't want them to be disgruntled workers. We
do warn them verbally and in writing of our rules. But we don't just terminate at will," he said.

There's no reason for growers to worry about getting enough H-2A workers. Economic
desperation in Mexico keeps the pipeline full.

Workers pay up to $500 to a recruiter for the chance to earn up to $330 a week in North
Carolina, far more than they could earn at home.

In Tamazunchale, 192 miles southeast of Fuentes' home of Ciudad del Maiz, so many men leave
for N.C. farms the city is called "el segundo Carolina del Norte" - the second North Carolina.

Workers arrive expecting a guaranteed wage set by the government - $6.54 an hour this year -
and payment for at least three-quarters of their contract period. Workers can earn more by
accepting a piece rate, and most do.

The longest contracts run from April through November. If they stay until the end, workers can
earn $9,600, although advocates say most workers earn far less because work is not consistently
available and many don't finish the contract.

Filomeno Carreon, a friend of the Fuentes family, said he has no choice but to try for an H-2A
job. "My family can't live here on 200 pesos a week (about $20)," he said, leaning against a
storefront in Ciudad del Maiz, awaiting a local recruiter's call.

North Carolina's demand for foreign workers is not expected to diminish, despite setbacks from
hurricane-related flooding. And many growers, facing lower tobacco subsidies, already are
switching to other crops such as sweet potatoes.

The power of `'el patron'

East of Raleigh, where Spanish billboard slogans tout Mexican beer, most Latino farm workers
are migrants - U.S. workers who follow the harvest from state-to-state. H-2A guestworkers,
though, are the fastest-growing segment of Latino farm workers. While the N.C. migrant labor
force dropped 1 percent in 1998, the H-2A work force shot up 49 percent.

In exchange for work on an H-2A farm, workers give up considerable control over their lives.

Most don't see their contracts until they arrive in North Carolina. Unlike migrant workers,
H-2As can't choose their employer - they are assigned by the Growers Association. H-2A rules
don't let them negotiate wages and hours.

Unlike migrant workers, H-2As are not protected under N.C. laws governing landlord-tenant
contracts. It took a legal challenge this year to win N.C. H-2A workers the right to invite guests
to their quarters after hours.

And unlike migrant workers, they are not covered by the federal Migrant Seasonal Worker
Protection Act. That could change under new legislation introduced last week, which would
extend the migrant protection law to cover H-2A workers.

The Migrant Protection act requires substantially more documentation from growers than the
H-2A program, such as hours to be worked, crops to be picked and place of employment.
Growers who violate the act are subject to civil and criminal penalties.

H-2A workers must depend on their employer - "el patron" - for transportation to the store and
church, and loans when they are short of cash.

In the field, they can be fired for taking an unauthorized break, according to association rules.

"We don't control them, we protect them," said Eury.

The power of "el patron" makes H-2A workers especially vulnerable to mistreatment, two
independent federal investigations found.

"H-2A guestworkers may be less aware of U.S. laws and protections than domestic workers, and
they are unlikely to complain about worker protection violations fearing they will lose their jobs
or will not be hired in the future," the General Accounting Office, Congress' investigative arm,
concluded in a December 1997 report.

A 1998 report by the Office of the Inspector General for the U.S. Labor Department described
H-2A workers as "malleable and less likely to voice complaints about wages and working
conditions."

N.C. Labor Commissioner Harry Payne also said H-2A workers are reluctant to complain.
"Plus, they come here and are willing to work 24 hours a day, which puts them at risk."

Ten- to 12-hour days are the norm, and 14-hour days are not uncommon when crops hit peak
harvest.

Housing can be crude. At one Nash County farm, workers live in a converted chicken coop with
tiny screened slats for windows and a tin roof that on hot days turns it into an oven.

Last year at a farm in Wilson, state inspectors found 30 workers in quarters meant for 24. The
men were exposed to live electrical wires; smoke detectors didn't work and there was one toilet
and sink.

The minimum is one toilet and sink for 20 workers.

Eury says the H-2A program treats farm workers better than migrants who work for crew
leaders whom he says can be exploitive. He also says the H-2A program is better because
growers provide free housing.

Fear of the blacklist

Guestworkers learn quickly that job security depends on silence and obedience.

Workers at a Nash County farm, for example, received information pamphlets from farm worker
lawyers at the U.S.-Mexico border at Laredo, Texas. When they arrived in Vass, they said the
association told them they would be sent back to Mexico if they kept the pamphlets. Workers
said association employees watched as they threw them into trash cans. Eury said the workers
threw the pamphlets out voluntarily.

The pamphlets are dedicated to Carmelo Fuentes and tell his story. They show workers how to
figure their wages and make sure growers live up to a guarantee that they will be paid for at least
three-quarters of their contract period if they stay until the end.

The growers' message - don't complain, don't seek legal help - is hammered home when workers
arrive for orientation inside the association's warehouse in Vass in Moore County. From a
balcony above the recruits, association employee Jay Hill forbids them from associating with
Legal Services of North Carolina, whose farm worker unit provides free legal advice.

The price of disobedience: "He's telling us we will be sent back to Mexico," said Luis, 33, an
H-2A worker who speaks some English.

Eury says workers don't need legal advice. In Georgia, H-2A recruiter Dan Bremer said he
regularly invites lawyers to orientations to tell workers their rights.

Recently at the Nash County farm - far from the eyes of the grower - workers welcomed lawyers
from Legal Services.

They told the lawyers they had to drink from a pipe attached to a water tank, each putting his
mouth to the source. "One guy has a cold, but he needs water, too," said a worker, who asked not
to be identified. Growers are required to provide individual cups.

The workers said they were afraid to ask for cups, fearing the grower would not invite them
back. One lawyer, Alice Tejada, persuaded them to complain anonymously to the N.C. Labor
Department.

To date, no H-2A farm worker in North Carolina has personally filed a complaint with
government regulators, records show. The state and federal governments receive complaints
about growers, but they originate with farm worker advocates or church groups.

The code of silence follows workers back to Mexico.

Two workers who spoke to an N.C. investigator in Carmelo Fuentes' case are from Naranjo,
Mexico, not far from his home.

Porfirio Fuentes, Carmelo's father, tried without success to talk to the men about what happened
to his son. "They were told to say nothing or they could never come back," Porfirio said.

Luis Torres, who has interviewed 700 guestworkers for a Ford Foundation study in Mexico, said
blacklists are used to punish workers. He said he saw one blacklist on a visit to central Mexico
last year.

Torres said a recruiter in Mexico showed him a blacklist that represented about 8 percent of the
workers that had been sent to the United States under H-2A. "The explanation from the recruiter
was that these workers had jumped the contract," Torres said.

Workers' fears of ending up on such lists are widespread.

In a 1995 case, N.C. farm worker lawyers represented an H-2A worker who said he was
blacklisted because he had been injured on the job and requested medical attention. He was not
rehired the next season and sued the Growers Association under the N.C. Retaliatory
Employment Discrimination Act.

The judge entered a default judgment against the association for failing to comply with a
discovery order. Just before a jury trial on damages, the association settled.

Eury denies blacklists exist, though he says growers can ask for "preferred workers." He said
the association keeps track of "ineligibles," those with substance-abuse problems or poor work
habits.

Official report on collapse

Carmelo Fuentes had hoped to earn enough so his sister Yolanda could have cataract surgery.

The circumstances of his collapse late that afternoon on July 10, 1998 - six days shy of his 37th
birthday - are described in an N.C. Labor Department report.

A few men carried Fuentes to the end of a row after he fell; then they returned to their work, the
report said. About 15 minutes later, the field supervisor told them to carry him back to his
quarters.

Sometime later - the report doesn't state exactly when - a truck driver for Jackson's Farming
found Fuentes semi-conscious. Brent Jackson dialed 911 at about 6:10 p.m. The report is based
on interviews with the Jacksons and Fuentes' co-workers.

Debbie Jackson, named as the field supervisor in the report, said she didn't act immediately.

"Mrs. Debbie Jackson stated immediate cooling procedures and other first aid procedures were
not initiated until the arrival of the Sampson County E.M.S. sixty minutes after initial symptoms
were reported to supervisor Mrs. Debbie Jackson," the report states.

Fuentes was flown to University of North Carolina Hospitals in Chapel Hill where doctors
diagnosed a severe neurological disorder.

Brent Jackson, in a recent interview, said he expects to prevail in a pending workers'
compensation case filed on behalf of Fuentes.

The state assessed Jackson a fine of $875 under N.C. Labor Department laws. The maximum
fine is $7,000. Other violations found in the investigation were dropped from the settlement -
including a finding that the men had to share a single water cup.

"Everything in that state report is a lie," Jackson said. He said he paid the fine to avoid a long
legal fight.

Those who maintain that a pattern of subtle coercion underpins the H-2A program don't doubt
Fuentes insisted he just needed to rest. Mary Lee Hall, a veteran farm worker lawyer, said
workers who complain about sickness risk not being invited back next season.

Betsy Richards, a nurse practitioner at the Harvest Family Health Center in Wilson, was alone
one night at the clinic when 27 tobacco workers showed up with nicotine poisoning. She said
some men - all H-2A workers - said they had symptoms early in the week but told her they were
afraid to complain until it was too late.

Nicotine poisoning occurs when green, wet leaves transfer nicotine onto the skin. Victims
become dizzy, develop cramps and headaches and vomit.

"It was wretched. They were throwing up all over the lobby," Richards said.

Although the program allows "el patron" almost absolute control over H-2A workers, federal
officials say it's virtually impossible to keep abusive employers out.

"(U.S. Labor Department) field officials expressed concern about the difficulties of ensuring
that abusive employers do not participate in the H-2A program, where they believe the chance for
abuse is much greater," investigators wrote in the 1997 GAO report.

Mexican recruiters in Tamazunchale, (pronounced TAH-mah-soon-CHA-lay), acknowledge as
much. "There are good patrons and bad ones," recruiter Isidro "Cholo" Rios said.

To U.S. farm worker advocates who say Mexican recruiters should take responsibility for
sending workers to abusive growers, Rios says: "You take care of your troubles on your end and
I'll take care of mine."

Investigating complaints

Investigators from the GAO and the Labor Department's watchdog - the Office of the Inspector
General - say the government has a poor record of policing the H-2A program. U.S. Labor
Department records show only a handful of H-2A complaints were investigated in the last two
years, resulting in either no action or marginal fines.

Until two months ago, the Labor Department had never denied any N.C. grower an order for
H-2A workers - a significant club it can wield to weed out abusive employers.

A July 1998 incident, now well-known in Eastern North Carolina's Latino community, illustrates
a type of problem with the H-2A program and the vulnerability of workers, according to federal
investigators and critics.

At the Pink Hill farm of Anthony Smith, 15 H-2A workers left during the night and went to a
Kinston church.

At the time, Lee Albritton was the manager of the Kinston office of the Employment Security
Commission, which tries to place U.S. workers in farm jobs. The church minister called
Albritton, knowing he spoke Spanish.

Albritton, now a recruiter for Bojangles', said the workers told him they suspected they weren't
getting paid properly.

Instead of receiving the customary tokens for each bucket of cucumbers picked, the workers said
a supervisor kept track of their productivity by making them wear caps with numbers and
recording them as they dumped buckets into a truck.

Without tokens, the men wouldn't have any leverage when it came time to figure their pay,
Albritton said. "Basically, they didn't trust the supervisor to count right."

Albritton also said that workers told him their crew supervisor threw cucumbers at them if they
were not working fast enough.

Sonia Smith, Anthony Smith's wife, said union organizers incited the workers, causing them to
leave. She said the workers did get tokens and denied that the cucumber incident took place.
"That's all untrue," she said.

Albritton said he called his supervisor, Bubba Grant, to report the incident. In a few days, Grant,
U.S. Labor official Carl Miller and Albritton met. Albritton said he wanted to complete an
investigation of the incident and file a report but that Miller told him he was outside his
jurisdiction.

Miller said he notified U.S. wage and hour investigators of the incident. But by the time they
looked into it, they could not find the workers, said Carolyn Riddle of the U.S. Labor
Department in Atlanta.

Eury said the probe is an example of how state and federal investigators harass growers. "They
investigated Anthony Smith for six months and couldn't come up with a thing on that."

Records show the farm did pay a state fine last year for not having a portable toilet in the fields.
Smith said it was a minor infraction. "We thought they were close enough to (the toilets in the
camps.) Besides, they don't use them anyway," she said.

To Albritton, the case shows the vulnerability of H-2A workers. By leaving the farm, the workers
broke their contract, making them undocumented workers subject to deportation. Under the
contract they also forfeited their bus fare home and certain pay guarantees.

Eury has given varying accounts of how the association disciplines its members in different
interviews. When first asked last spring, Eury said no one had ever been kicked out of the
Growers Association. Later, he said "three or four" growers had been denied membership. Most
recently, he upped the number to 12. He wouldn't explain the discrepancy or identify growers
who are no longer members.

Eury said he doesn't always know what's going on among the association's 1,000-plus growers.
State labor officials don't keep a watch list of growers with records of violations, which might
help the Growers Association improve its own monitoring.

For example, Eury said he didn't know that the state Department of Agriculture last year
investigated Pilot Mountain tobacco grower Jimmy Pike for pesticide violations, following up on
worker complaints passed on by farm worker lawyers.

Pike settled the case earlier this year, agreeing to pay a fine of $500 - the maximum pesticide
fine under state law. The pesticide board, which grants pesticide licenses, denied Pike his
 applicator license and suspended his wife's license for one year.

Separately last year, the state Labor Department fined Pike $250 for not providing toilet or
hand-washing facilities for men working in the fields longer than five hours. The department
also said Pike violated regulations by failing to provide transportation to such facilities.

Pike, who continues to use workers supplied by the Growers Association, declined comment.

A father cares for his son

The day his son fell, Carmelo Fuentes' father got the news from the local recruiter in Ciudad del
Maiz. Porfirio Fuentes decided he had to go to Chapel Hill, where Carmelo was hospitalized.

Nurses at the hospital taught Porfirio how to bathe his son in bed. Back home in October 1998,
Porfirio showed his family.

A year later, the daily ritual is familiar. The family team massages Carmelo's lifeless limbs and
washes his skin under the light of a single bulb hanging from the ceiling. An old shoebox serves
as a makeshift lampshade.

After the bath, Yolanda covers him with a clean sheet donated by friends in North Carolina.

Sometimes, Carmelo's eyes seem to catch the dance of light and shadow as family members
move around him. Porfirio insists it's a good sign: "My son, my son," he repeats from the end of
the bed, wiggling his fingers to coax recognition from Carmelo.

At dusk, Porfirio places a Bible under each corner of Carmelo's mattress and begins the nightly
reading, this time from the Old Testament's Song of Solomon.

Nightfall cools the concrete-block hut. As he does every night, Porfirio drags an old mattress
from a corner of the room so he can sleep next to his son. He wants to be here in case Carmelo's
condition changes.

Porfirio hopes his son will recover but succumbs to sadness in the dark.

"I cry every night. Every night."

What is H-2A?
 

The N.C. growers association has been painted "as the big bad grower. but we have thrived because we are a progressive employer."
                                                        -- Stan Eury, founder