Hearings and Business Meetings

SD-366 Energy Committee Hearing Room 02:30 PM

Dr. Cassandra Moseley

Director of the Ecosystem Workforce Program, Institute for a Sustainable Environment, University of Oregon

Statement of Cassandra Moseley, Ph.D.
Ecosystem Workforce Program,
Institute for a Sustainable Environment,
University of Oregon
To the Senate Committee on Energy and Natural Resources,
Subcommittee on Public Lands and Forests
On Issues Related to Forest Workers on Public Lands
March 1, 2006

Mr. Chairman and Members of the Subcommittee:

Thank you for the opportunity to testify before you today. I am pleased to be able to
contribute to this timely issue. Tom Knudson’s “Pineros” series in the Sacramento Bee has
brought to light troubling and all-too-common problems with the way the work of federal forest
management is accomplished. Today’s hearing is particularly important because the working
conditions in our nation’s forests affect not only the lives of workers and their families, but also
the viability of small rural businesses and the integrity of forest ecosystems. It presents an
important opportunity to discuss our current understanding and explore solutions to the
challenges of creating quality jobs for forest workers and economic opportunities for public land
communities.
I am on the faculty of the University of Oregon, where I direct the Ecosystem Workforce
Program in the Institute for a Sustainable Environment. Founded in 1994, the Ecosystem
Workforce Program seeks to help build a high-skill, high-wage forest and watershed restoration
industry in the Pacific Northwest. The Ecosystem Workforce Program does this by providing
technical assistance to rural communities and their agency partners, and by undertaking applied
research and policy education related to community-based forestry and federal forest
management.

Over the past five years, I have undertaken a series of studies on how Forest Service and
Bureau of Land Management (BLM) restoration contracting creates rural community benefit,
and on the working conditions of federal contract forest workers. As part of these studies, my
collaborators and I have interviewed forest workers and contractors and analyzed federal
contracting and state employment data. We have examined these issues in general terms as well
as under specific programs including the National Fire Plan, the Northwest Forest Plan, and
stewardship contracting.

Much of my work has been focused on the Pacific Northwest, but the work of other
scholars such as Josh McDaniel and Vanessa Casanova make clear the challenges are not limited
to a single part of the country.

A Forest Restoration Workforce

Our nation’s forests and watersheds have significant restoration and maintenance needs,
including decaying forest roads, degraded stream and forest habitat, and overstocked stands in
need of thinning to reduce wildfire risk and restore fire-adapted ecosystems. These needs present
an opportunity to create high-skill, high quality jobs to benefit rural communities, small
businesses, and forest workers. For over a decade, community forestry advocates and their
federal agency partners have sought to combine the ecological need for high quality restoration
with the economic need for high quality jobs to contribute to the well-being of public land
communities. The hope has been that communities could replace lost logging and milling jobs
with jobs restoring national forests and other public lands.

The notion of creating community benefit through federal forest management dates back
to the founding of the Forest Service. It can be found in Gifford Pinchot’s writings as well as in
20th century legislation including the New Deal, the Sustained Yield Management Act of 1944,
and the National Forest Management Act of 1976. Several times since 2000, Congress has
encouraged the Forest Service to create community benefit through forest restoration as part of
the National Fire Plan, Secure Rural Schools and Communities Self-Determination Act, and
through stewardship contracting authorities. In addition, Congress has enacted numerous labor
laws, including the Service Contact Act, Contract Work Hours and Safety Standards Act, and the
Migrant and Seasonal Agricultural Workers Protection Act, which were designed to create
quality jobs for federal contract workers.

Contract Forest Work and Workers

Forest restoration work involves a wide variety of tasks, from maintaining forest roads,
restoring streams to create fish habitat, and collecting native grass seed, to planting trees after
logging or wildfires, and thinning overstocked stands to improve habitat and reduce fire hazard.
The primary way that restoration work is performed on national forest and other federal forest
lands is through service contracts and, increasingly, stewardship contracts. The federal
government awards restoration contracts to businesses that, in turn, hire workers to undertake
restoration and maintenance activities.

Labor-intensive forest workers—those who plant trees, thin overstocked stands, pile
brush, and fight fires—come from a variety of ethnic backgrounds. Typically, they are Hispanic
and white and, to a lesser extent, Native American and African American. Although the
Sacremento Bee “Pineros” series focused primarily on H2-B workers, forest workers can be U.S.
citizens, non-citizens with resident alien papers, H2-B guest workers, and those without
permission to work. In the Southeastern U.S., contractors seem to make more use of H2-B
workers, whereas contractors in the Pacific Northwest appear to rely more heavily on
undocumented workers.

Challenges of Creating Rural Community Benefit

Despite the direction to create rural community benefit and to protect workers from
exploitation, the Forest Service and other federal land management agencies have had difficulty
systematically creating rural community benefit with their procurement contracting program.
The main way that the agencies create community benefit in public lands communities is when
they award contracts to local firms (as opposed to distant firms hiring local workers). In the
Pacific Northwest, the Forest Service and BLM frequently award equipment intensive contracts
such as forest road maintenance and stream restoration to local businesses. But contracts that
involve labor-intensive activities such as thinning, tree planting, and brush piling tend to be
awarded to urban-based businesses that have access to large pools of low-cost labor and are able
to travel long distances inexpensively. The authority to consider local benefit as part of best
value (such as with the National Fire Plan) can have some positive impact, but it is unclear how
frequently it is used.5 In addition, partnerships between local non-profit organizations and the
BLM and Forest Service can be used to create local benefit from restoration work using grants
and agreements authorities.

Poor Working Conditions for Forest Workers

As recent news articles and academic research make clear, many forest workers,
especially those that perform labor-intensive activities such as firefighting, tree planting, and
thinning, face dangerous working conditions, irregular employment, low wages, exploitation,
and inadequate training. Guest workers and undocumented workers are most vulnerable to
exploitation, but studies also suggest that citizens and resident aliens can also suffer from labor
law violations and poor job quality
.
For example, in 2003, the median wage among forestry services workers in Oregon was
$11.97 per hour, but half of workers earned less than $4,355 all year. More than 85% of workers
earned less than the federal poverty level for a family of four (see figure 1). Wages that workers
actually receive may well be less, particularly for undocumented workers, because workers are
sometimes hired through “subcontractors” who recruit workers on behalf of contractors. These
“subcontractors” may take part of workers wages ($1.00-$4.00 per hour) in exchange for
continued employment. Our studies suggest that these workers are also paid for hours of work
per day even if they work more. Travel time is rarely paid except when firefighting.
Labor-intensive forest work is also quite seasonal and erratic (figure 2). The average
worker was employed the equivalent of three months a year, compared to six months for loggers.
But, this is not simply the work of college students with summer jobs. Most are Hispanic
immigrants and half of forestry service workers in Oregon also work outside of forestry. They
are commonly employed by temporary agencies, restaurants, and in agriculture, and typically
earn even less than they do when working in the woods.

Although official accident rates are lower for forest workers than for loggers, our studies
also revealed that many workers felt that they could not report on-the-job injuries for fear of
being fired. In addition, we heard frequent reports of crew bosses who push their employees to
work very quickly and require that they work without stopping for breaks or lunch. Performing
physically demanding, dangerous work under these circumstances only increases the likelihood
of accidents. Crew van accidents are all too common and have resulted in fatalities because
drivers were tired, under the influence of drugs or alcohol, or driving unsafe vehicles.
Although many excellent contractors work for the federal government, others forge fire
fighter qualification documents (red cards) and fail to pay workers legally-mandated wages or
overtime, supply safe vehicles, and provide medical care for on-the-job injuries. These working
conditions harm workers, contractors, rural communities, and national forest ecosystems.

Institutional Challenges

Although there are numerous labor laws in place to protect forest workers, they are not as
effective as they could be because of the ways in which the Forest Service and the BLM
structure and award contracts and oversee project implementation. Land management agencies
face budget constraints, output-based accomplishment targets, and a culture of efficiency that
encourages staff to minimize administrative costs and contract prices, sometimes to the detriment
of other objectives, including job quality and community benefit.

Accomplishment Targets and Budget Allocations

The Forest Service’s budget and staff performance evaluations and advancement have
long been tied to accomplishments targets. Meeting targets in one’s area of contracting means
increased budget and staffing as well as promotion. Programs and management units that fail to
meet their targets or do so at too high a cost have their budgets cut. The focus on maximizing
natural resource accomplishments—e.g. volume, acres, miles—creates few institutional
incentives for attending to the job quality of its contracted workforce or ensuring that its
contractors strictly follow labor and immigration laws. When targets measure only the quantity
of outputs, without consideration of the quality of those activities, community benefit, or
treatment of workers, the incentives to accept the lowest-price bid are strong. With declining
budgets for federal forests and national direction to do more with less, incentives to ignore
impacts on communities, contractors, and workers become even stronger.

Low-Bid Contracting

The pressure of meeting targets is compounded by a history of a low-bid contracting
system in the federal land management agencies. Until the mid-1990s, the Forest Service and
BLM, as with most federal agencies, were required to award contracts to the lowest bidder
almost regardless of the quality of they work that they performed. In the mid-1990s, federal
procurement laws changed and the Forest Service and BLM became able to use negotiated
contracts, which allows the agencies to consider best value to the government when awarding
contracts. Now, they could consider factors such as past performance, technical capability, key
personnel, and, under some circumstances, benefit to the local community. Best-value
contracting has created an opportunity to ensure that restoration work would be high quality,
workers would be treated well, and rural communities would benefit.


Lack of Labor Law Enforcement

Numerous laws including the Service Contract Act, Davis-Bacon Act, Migrant and
Seasonal Agricultural Workers Protection Act, and the Contract Work Hours and Safety
Standards Act are in place to protect forest workers from exploitation; however little
enforcement of these laws occurs. The Forest Service typically views enforcement as the
responsibility of the Department of Labor or state labor agencies. But enforcement led by the
U.S. Department of Labor or state labor departments can be difficult because of remote
worksites. In our interviews with roughly 85 forest workers in Oregon, no one had seen staff
from the U.S. Department of Labor or the Oregon Bureau of Labor and Industries while working
in the woods.

Consequences

These pressures have created a system that rewards contractors who cut corners to offer
the lowest prices. When contracts involve significant physical labor, contractors’ options for
cutting costs lie primarily in increasing the speed at which people work and reducing wages.
Strategies for cutting costs include not paying over time, paying below the required minimum
wage, and paying some people under the table to reduce worker compensation and tax costs. At
first blush, low-price contracting appears to save the government money. In reality, however, it
costs the American taxpayer when poor quality work has to be redone, when taxes are underpaid,
and when poorly paid workers have to apply for food stamps and other public assistance or seek
medical care in emergency rooms without insurance.

Forest Service Response to “Pineros” Series

The Forest Service offered a rapid response to the “Pineros” series by directing its
contracting officers to insert new clauses in their labor-intensive service contracts to clarify
contractors’ obligations. This is helpful because it can make contractors more aware of relevant
laws and shows that the Forest Service does want contractors to follow the law. However, it
presumes that the major problem facing contract workers is ignorance of the law on the part of
contractors. Although contractors may be ignorant of some issues, it is not the central cause of
the problems facing forest workers.
The Forest Service’s response does little to address larger systemic problems. In the
words of one contractor, “the agencies, by their action and inaction have played a major role in
the creation of an ‘underclass industry’ among service contract workers.”10 These new contract
clauses do little to address the lack of contractor and agency accountability because they do little
to improve the lack of viable enforcement mechanisms. Nor, do they address the larger
institutional issues such as accountability targets, direction to do more with less, and culture of
efficiency that encourages the agency to practice low-bid contracting.

Recommendations

The following recommendations for improving the working conditions of forest workers
were developed in collaboration with community-based forestry and forest worker organizations,
based on their experiences working in the woods, and my research of federal restoration
contracting and the working conditions of federal contract forest workers.
Systemic Change
1. The Forest Service and BLM should participate actively in enforcing labor laws by involving
inspectors, contracting officer representatives, and contracting officers in labor law
compliance. Forest Service contracting officer’s representatives and inspectors already visit
these sites, and are responsible for overseeing other components of project implementation.
The agencies should provide staff with direction and training to ensure that they understand
their roles and responsibilities. Inspectors and contracting officer representatives should be
directed to report suspected problems to the Department of Labor for enforcement action.
They should also report problems to agency contracting staff to ensure that these problems
are taken into account when awarding future contracts.
2. The Forest Service and BLM should make full use of best-value contracting authorities to
reward contractors who perform high quality work, treat their workers well, train their
workers, and provide rural community benefit.
3. To reduce the pressure to accept below-cost bids and increase incentives for the agency to
investigate potential labor law violations, the Forest Service and BLM should establish
outcome-oriented accomplishments targets and performance measures that incorporate
ecological and socioeconomic goals, including tracking progress towards creating durable,
high-quality jobs.

Short term steps--Congress

1. Congress should strengthen the payroll reporting requirements under the Service Contract
Act to be similar the reporting requirements of the Davis-Bacon Act. The Davis-Bacon Act
requires that contractors regularly file certified payroll with state labor departments. This
effective and efficient process has provided clear, consistent information to settle wage
complaints or undertake enforcement actions.
2. Congress should direct the Forest Service and the BLM to end the practice of awarding
contracts at prices that are lower than 20% below the government estimate.

Short term steps—Forest Service and BLM

1. The Forest Service’s National Partnership Office should convene a series of meetings
between workers, contractors, rural community organizations, contracting officers, National
Forest System managers, and other relevant federal staff to develop and implement concrete
improvements in the Forest Service’s procurement system.
2. The Forest Service should commission a study on how the agency uses best-value
contracting. Although the Forest Service typically uses negotiated contracts that allow for
consideration of best value, many of the contractors we interviewed felt that they were still
operating in a low-bid contracting system. Further knowledge of how best value is actually
being used could help the agency provide better direction and training.
3. The Forest Service and BLM should create ombudsmen who can hear the concerns of
workers, contractors, citizens, and agency staff about labor law and other contracting issues
and act as an advocate to facilitate action when problems arise. Currently, it is difficult for
many types of people to report suspected labor law violations.
Thank you for the opportunity to comment on the difficult challenges facing the federal
land management agencies, forest workers, and rural communities in creating quality jobs
restoring our nations’ forests.