Hearings and Business Meetings

SD-366 Energy Committee Hearing Room 02:30 PM

Mr. Michael Dale

Northwest Workers' Justice Project

Testimony of D. Michael Dale, Executive Director
Northwest Workers’ Justice Project
March 1, 2006

 Mr. Chair, members of the Subcommittee.  Thank you for the opportunity to speak with you today concerning the protection of reforestation workers on public lands.  I spent twenty-five years as a migrant legal services lawyer, and directed the Oregon migrant program for most of that time.  A key aspect of our work concerned the exploitation and abuse of workers on our national forests and BLM lands.  Since its inception in 2003, the Northwest Workers’ Justice Project has been providing legal assistance to reforestation workers in Oregon, Idaho and elsewhere who have been struggling to enforce their right to decent conditions and fair pay. 

 Although some progress has been made, I must say that, overall, the treatment of workers who replant, thin and maintain national forests has been shameful.  I have represented workers who were not paid the required Service Contract Act rate, did not get paid overtime, were unlawfully charged exorbitant fees for recruitment, transportation, housing, food, and even for the chain saws needed for their work and the gasoline for the saws, or were not paid at all.  My clients have slept in the cold of winter in the mountains in equipment trailers, or under a plastic tarp.  Some were abandoned in the mountains without food or transportation by their employer.  Saddest of all, I have represented the families of workers who died in vehicle accidents on icy mountain roads in unsafe vehicles.

 The latest attention focused on this work by articles in the Sacramento Bee has only begun to scratch the surface of the misery that some of those who contract with the United States inflict.  I welcome the changes being made by the Forest Service in its contracting procedures.  But with all due respect for obviously sincere good intentions, it is important to note that we have been here before.  Every few years there have been similar exposés—a few years ago, it was a segment on Prime Time Live.  These episodes have inevitably been followed by a flurry of activity, with renewed statements of intent to do better.  However, as the focus of public attention faded, so, sadly did the focus of enforcement activity.  To make a truly significant difference in the industry will require sustained, purposeful effort.  In this light, I propose the following:

Proposed Reforms to improve H-2B forestry worker safety and working conditions.

The Secretary of Labor should issue a regulation requiring seat belts and identification for vehicles transporting forestry workers and other migrant and seasonal agricultural workers.
 On September 10, 2002, 14 H-2B forestry workers were killed when the van in which their employer was transporting them to work toppled off a bridge in Maine. In two separate accidents in Washington state over the past two years, seven Guatemalan workers from the same tiny village were killed as they were driven over icy roads to pick brush on forest service lands. Motor vehicle 
accidents are the number one cause of fatal injuries among agricultural workers. These accidents have a common theme - they frequently involve exhausted drivers in overloaded, unsafe vans driving over long distances on foggy, icy, or windy mountain roads. In eight of the fourteen accidents reported in the Sacramento Bee series, “The Pineros,” five or more workers lost their lives in a single accident.

 Under the Migrant and Seasonal Agricultural Worker Protection Act, the Secretary of Labor is authorized to issue regulations to improve the safe transportation of migrant and seasonal agricultural workers. 29 U.S.C. § 1841.  (The Migrant and Seasonal Agricultural Worker Protection Act protects reforestation workers.)  The act authorizes the Secretary to make reasonable regulations, considering the numbers of workers transported, the distance over which they are transported, the type of vehicle involved and the type of roads over which they are transported. In order to protect the health, safety and lives of these workers, the secretary should amend these regulations.

 Currently, federal law requires that vehicles meet a number of specific safety measures, including that there be a seat for each passenger.  Nonetheless, these regulations do not require seat belts.  Many forestry workers are killed in transportation accidents because they are ejected from the vehicle due to the lack of seat belts.  In the most recent accident in Washington state, a worker was killed after being ejected from the van and run over by an oncoming truck.  A particularly tragic accident involving 13 workers in California led the legislature in that state to pass a law in 1999 requiring seat belts. The Florida legislature is currently considering similar legislation. Under the California program, all vehicles used to transport farm workers are required to be labeled that they are “Farm Labor” vehicles so that the State Highway Patrol can specifically inspect them for compliance with the seat belt and other safety provisions.

 The Secretary's regulations also leave a simple escape route for employers seeking to abdicate responsibility for the vans in which their workers are transported, by providing that transportation which is not “specifically directed or requested” by an agricultural employer is exempt. The California state “raitero” (driver) law is more specific in that it covers any vehicle used to transport workers "to render personal services in connection with the production of any farm products to, for, or under the direction of a third person."

 We urge the Congress to recommend that the Secretary of Labor utilize her authority to issue a regulation under the Migrant and Seasonal Agricultural Worker Protection Act, requiring that: 1) vehicles used to transport forestry and other migrant and seasonal agricultural workers be equipped with a seat belt for each passenger; and 2) be identified on the outside of the vehicle as a "Agricultural Labor" vehicle.

Creation of a joint task force between DOL and US forest management agencies that reports to Congress.
One problem is that the DOL lacks the capacity really to monitor forestry contracts.  Crews are in remote areas, hard to find, and hard to reach.  BLM and USFS have contract compliance people that are regularly checking on the contracts and often encounter labor violations; however, they don’t have much training on wage and hour laws, and more importantly, they do not usually see enforcement of the labor standards aspects of Service Contract Act contracts as being a significant part of their jobs.  What makes sense is to instill a sense of obligation for the workers in the forest management agencies, and to institutionalize collaboration with the Wage and Hour Division.  To do that on an ongoing basis, Congress could call for creation of a joint task force with periodic reports back to Congress on progress made.  As noted above, similar concerns have been raised in the past; however the higher standards were lost with the decline in public scrutiny. Accordingly, ongoing reporting on a periodic basis is important in order to maintain scrutiny.  Further, the effort needs to be sufficiently sustained in order to break down an institutional culture that sees efficiency in getting the trees planted and thinned as being paramount over labor considerations.

DOL should adopt regulations imposing H-2A-like standards in the H-2B program.
DOL could take some additional steps to strengthen enforcement.  When the H-2B program was created, DOL was supposed to develop regulations modeled after the H-2A regulations.  This was never really done, and the result is a lack of standards for H-2B workers.  DOL should be encouraged to fulfill this obligation now.  For the most part, the H-2A regulations should be the model, with consideration for the special aspects of forestry.  However, forestry workers should not be encompassed within the H-2A program, as this would destroy the protections that they have under the Migrant and Seasonal Workers Protection Act. 

DOL and the forestry agencies should hold repeat offenders responsible for their actions.
Both DOL and the forestry agencies need to be willing to take strong action against repeat offenders of labor standards.  At one time, the Forest Service agreed to subject contract bids that were significantly below the agency’s estimate to special scrutiny to assure that the lowest bidder is a responsible one.  It is unclear if they still do this, but blatant abusers of workers are awarded contracts year after year.  They should be debarred by the DOL, and should not be viewed as being capable of performing the contract by the contracting agencies.  One of the contractors in the Pinero series who had been sued for holding workers in peonage was still defended by a Forest Service official as being a great contractor because he produced quality results for the Forest Service.

Further, the Forest Service and BLM need to take steps to change the culture of those agencies so that contract officers know that enforcing the service contract’s labor protections is just as important as getting the work done.  Training, evaluation and promotion should take this factor into equal consideration, and the agencies’ expectations in this regard must be clearly and consistently communicated.  The steps taken by the Forest Service are a good beginning, but the obligation of agency line staff to follow through must be reinforced over time.

The DOL should ensure that the H-2B program is used as intended--only when there is a shortage of US workers.
The H-2B program is abused in forestry in a number of ways that should be addressed by DOL.  The program is supposed to be used to provide a way to obtain needed workers for existing jobs where an employer can’t find US workers available at a time and place needed for a specific job.  Many forestry contractors, though, apply for H-2B workers before they know what contracts they will have.  The workers are recruited and brought here on speculation that contracts will be awarded.  Then, it may turn out that expected work is not available.  This leads to underemployment of the workers, and commonly, to use of the workers in other jobs which pay less than the forestry wage and which are not authorized work.  Since forestry jobs are covered by the Migrant and Seasonal Agricultural Protection Act, forestry contractors are required to give recruited workers a disclosure statement describing the particular work and pay arrangements they are offering.  H-2B procedures require contractors to attempt to recruit US workers for the work for which foreign workers are sought prior to admission of the visa workers.  DOL could require that forestry contractors supply a copy of their recruitment disclosure statement detailing promised work with their H-2B application to help ensure that the contractor actually has a specific need for workers.

Forestry Workers should be given access to legal services provided by the Legal Services Corporation
Ultimately, agency enforcement of labor standards can only go so far.  Workers need to have the ability to take steps to protect themselves, and often will need specialized legal assistance to do so.  H-2B workers are working in the United States legally as “guest” workers at the invitation of the United States, under guarantees of labor protections designed to protect them, and importantly, to protect the wages and working conditions of US workers.  Yet, they are excluded from eligibility for representation by legal services programs that receive any funding from the Legal Services Corporation.  Often, they find that there is no other legal representation available to them.  There is no rational basis for this exclusion, and its elimination would do more to improve the conditions of H-2B forestry workers than any other step that Congress could take.

A final recommendation concerns what DOL and the forestry agencies should not do.  Some of the contractors on national forests use workers who are not properly authorized to work in the United States.  In past efforts to clean up the reforestation industry much of the emphasis has been on turning such workers in to the immigration authorities.  This practice has been highly counter productive.  Ultimately, given the isolation of the work, enforcement of labor standards in the woods depends upon the cooperation of exploited workers.  A policy that leads workers to conclude that the only response to complaints will be that they will be turned over to ICE will not foster the needed cooperation and openness; rather, it will only drive abuse farther underground and leave Pineros even more dependent on those who would exploit them.

Thank you for your consideration of these comments.