[Washington state fines a mushroom grower $3.4 million for firing
women farmworkers and replacing them with male contract labor.]
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PORTSIDE CULTURE

WHERE DISCRIMINATION FLOURISHED LIKE MUSHROOMS  
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David Bacon
July 19, 2023
Capital & Main
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_ Washington state fines a mushroom grower $3.4 million for firing
women farmworkers and replacing them with male contract labor. _

Company housing provided to mushroom workers, Photo courtesy
Elizabeth Strater.

 

Mushrooms grown for the supermarket thrive on a mixture of straw and
manure. Amid the pungent stink of ammonia, workers heat huge piles
that spread the odor through the barns where they labor. They stack
metal trays covered with the resulting soil high in the moist darkness
of the sheds. Soon, familiar round white mushroom caps appear. Workers
cut their stems and place 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 of its employees, meant working like a
demon in the dark, dank barns, Jose Martinez-Cuevas noted in an
interview.

“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,” Martinez said. “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, Ostrom’s management did show the door to dozens of
experienced pickers, mostly local women who were immigrants
themselves, and replaced them with crews of men brought in from Mexico
under the H-2A contract labor program.

In filing suit against Ostrom, Washington state’s attorney general,
Bob Ferguson, concluded that the firings constituted massive
violations of worker protection regulations, including gender
discrimination.

Ferguson’s August 2022 lawsuit in Yakima County Superior Court put
pressure on Ostrom, which led to the company agreeing to pay a $3.4
million settlement. Ostrom’s money will pay damages to 170 of its
former workers over their illegal firing and replacement. (The
attorney general’s office is attempting to find other dismissed
employees who could benefit from the Ostrom settlement.)

“It’s obvious what they did,” Ferguson said at a May 17 news
conference. “They’re not paying [nearly] $3.5 million to the state
of Washington unless they did something wrong.”

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

The Ostrom case is notable because the women were fired for failing to
meet production quotas and because they were replaced by young male
pickers. But it is particularly significant because the company used
contract immigrant laborers on temporary H-2A visas to replace them.

“This settlement validates what we’ve been saying for years,”
said worker advocate Rosalinda Guillen, a member of a state commission
formed to monitor the negative effect of the H-2A visa program. “It
is inherently abusive both to the workers brought to the U.S., and to
the local workers the companies replaced.”

An Unsustainable Pace

In 2019 Ostrom moved its mushroom farm from the state capital of
Olympia to Sunnyside, a small farmworker town in the Yakima Valley.
Martinez-Cuevas went to work there soon after, making the metal
growing trays. His voice sounded raw during an emotional phone
interview about his memories of that time.

“I saw women crying because of the way they were mistreated,” he
recalled. “Supervisors threatened them to get them to work faster.
They were afraid they’d lose their jobs.”

Martinez-Cuevas and organizers for the United Farm Workers began
holding meetings with the mushroom pickers to talk about forming a
union. “People started to lose their fear,” he said. “At first,
there were seven at a meeting, then 14, then more. We talked about the
low wages and about fighting for our rights.”

Workers were particularly incensed, he said when the production quota
was set at 65 pounds of picked mushrooms each hour. Their protests
briefly got it lowered to 50, but later it was raised even higher, to
68 pounds.

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

Ostrom’s application, filed with the U.S. Department of Labor,
sought permission to hire 70 workers who would start on Dec. 15, 2021,
and then had to return to Mexico after Aug. 15, 2022. They’d be paid
$16.34 per hour, or a wage based on picking 23¢ per pound, according
to the application. To earn more than the hourly wage at that piece
rate, the H-2A laborers would have to pick more than 71 pounds per
hour. 

In the clearance order, the company said that meeting that quota “is
a requirement to hold the position of fulltime Harvester.” To ensure
they had a crew able to do it, Ostrom’s labor contractor, H2 Visa
Solutions, hired plenty of young men who were required to work faster.
Under the visa program rules, these workers could only work for
Ostrom, and the company could fire them for failure to meet the quota.
Terminated workers on such visas must leave the country immediately,
and they are routinely blacklisted by recruiters, who sometimes deny
them work in subsequent years.

“It’s not called ‘close to slavery’ for nothing,” Guillen
said.

Between January and May 2022, the company employed 180 local workers,
mostly women, who lived in the Sunnyside area near the mushroom farm,
according to the attorney general’s complaint. Starting in December
2021, three months 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,” according to the
state’s complaint.

The quota for the mostly women local workforce officially increased
from 62.22 to 68 pounds per hour. At the same time, the company
stopped letting workers know what quantity they were actually picking
each hour. Pickers often had to clean the mushroom growing rooms and
dispose of garbage, but time spent doing such work was counted as
though it was time spent picking and subject to the quota, the
state’s complaint said.

“It was very stressful,” Martinez-Cuevas said. “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 [the southern Mexican states of] Guerrero and
Chiapas, and many didn’t speak Spanish.”

The complaint alleged that local workers were given written
admonishments, 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.”

The document continues: “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.”

Job Listing: Men Only

Under the visa program rules, Ostrom had to give hiring preference to
workers in the U.S. Before bringing in H-2A workers, the company was
required to advertise the jobs locally and to pay local workers at the
same rate. But while it paid a guaranteed $17.41 per hour to the visa
workers, it paid a lower wage to local residents, according to the
complaint. While Ostrom’s public advertisements, and even the
clearance order, required a minimum of three months experience, few of
the H-2A workers met that requirement, even though local applicants
were rejected if they didn’t meet it.

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

Colombia Legal Services attorney Joe Morrison explained that 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 in a
declaration 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, with
$545,000 of it going to local workers.

Growers generally have little to fear for violations of H-2A program
rules, according to Guillen. In 2019, the U.S. Dept. of Labor filed
cases against 431 of 11,472 employers using the H-2A program. “Lack
of enforcement is a chronic problem and characteristic of a program
set up to meet grower needs,” Guillen said.

On June 22, 2022, local workers at Ostrom tried to meet with the
company over the discrimination. Instead of talking with them, the
attorney general said, managers retaliated. Several received
unjustified warnings, a step toward being terminated, and one woman
was assaulted by a supervisor, according to the state’s complaint. 


Later in September workers tried to deliver a petition to management
and were sent home early without pay for the hours they were prevented
from doing their jobs. A month after that, local workers were told
they would have to bring in their immigration documents to verify
their legal status.

Such re-verification of documents, which the company had seen and
accepted at the time they were hired, is viewed by labor experts as a
form of intimidation in a workforce that includes many undocumented
workers.

“[Ostrom] started re-verifying workers after its workers began
advocating for fair and nondiscriminatory workplace conditions,” the
state’s complaint alleged.

Many workers were laid off in the fall of 2020. Martinez-Cuevas was
recalled for a less-skilled position picking mushrooms instead of his
old job building the metal trays. He was also given a quota by his
supervisor — and then written up when he couldn’t meet it.

Finally, Martinez-Cuevas was fired. He believes it was because of his
labor organizing activity.

Jose Martinez-Cuevas, center, at a protest outside Windmill Farms on
April 18. Photo courtesy United Farm Workers.

In February, Ostrom sold the Sunnyside mushroom farm to a Canadian
company, Windmill Farms, which also runs two mushroom 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 re-verify 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.”

Declining Enforcement

The use of H-2A workers to put production pressure on local
farmworkers and eventually replace them has become a critical issue,
partly because of the rapid growth of the visa program. More than
317,000 H-2A workers were brought to the U.S. in 2021, a 15% increase
over 2020 and three times the number in 2013. In Washington State,
there was a 10-fold jump between 2007 and 2019. By 2022, such workers
accounted for a third of all farmworkers there.

The U.S. Department of Labor is supposed to enforce worker protections
and keep H-2A workers from displacing local farmworkers. The
protections are not always enforced, according to a 2022 Economic
Policy Institute report on the H2 Visa program’s impact on workers.

While the Washington state attorney general was able to charge Ostrom
with discrimination against women within the state, it is not illegal
for H-2A recruiters to hire only men.

Daniel Costa, who is the author of the report and the director of
Immigration Law and Policy Research at the EPI, noted that “an
employer may select an entire workforce composed of a single
nationality, gender, or age group” under the program.

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 … by firing them and effectively forcing
them to leave the country, or by threatening to blacklist them …
,” Costa said.

His report adds that the number of investigations of wage and hour
violations for farmworkers in general has actually declined from 2,000
per year two decades ago to 1,000 per year in 2021. There were 30
fewer investigators of labor standards violations for all workers in
2021 than there were in 1973, even though the private labor force
nationwide doubled during those 48 years, according to data from the
Department of Labor statistics.

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, then-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 attempted to freeze the required H-2A wages for two years, which
amounted to an effective wage cut as inflation curbed buying power.
The incoming Biden administration rolled back that Trump initiative. 


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 added that, ”We are committed to helping maintain a strong
pipeline of experienced farmworkers to support you.” 

This policy of encouraging farm employers to expand the use of the
H-2A visa program in Central America adds to those already being
brought in from Mexico, stimulating the program’s growth.

This adds to the challenges, including displacement from their jobs,
faced by farmworkers living in the U.S., most of whom are immigrants
themselves.

Ironically, the United Farm Workers itself is also 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 in April to support the mushroom
workers, she investigated the lodging the company had provided its
H2-A workers. Elizabeth Strater, a UFW representative, said that the
company had told the Labor Department it was housing workers in a
public housing complex. “But we found that the workers weren’t
there,” she said. “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.”

Company housing provided to mushroom workers. Photo courtesy Elizabeth
Strater.

After protests, the investigation and legal complaint by the attorney
general, Windmill Farms did not bring in H-2A workers this year. But
Martinez-Cuevas said that vans carrying dozens of replacement workers
appear at the Sunnyside barns daily, while the fired workers have not
been rehired.

Capital & Main asked the attorney general’s office why the
settlement did not include rehiring the illegally fired workers. The
office has not replied. 

Meanwhile, workers continued to rally to demand union recognition. We
have weekly meetings of our organizing committee,” Martinez-Cuevas
said, 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 [to their old jobs], while others
say the mistreatment was too much,” Martinez-Cuevas said. “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.”

David Bacon is a journalist and photographer covering labor,
immigration and the impact of the global economy on workers.

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Copyright 2023 Capital & Main

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