Criminals Because We Worked

Saturday, 20 June 2009 11:00 By David Bacon, t r u t h o u t | Report | name.

Criminals Because We Worked
Hispanic migrant workers plant tobacco from the back of a planting machine. (Photo: Getty Images)

    Vernon, California - The production lines at Overhill Farms move very quickly. Every day, for 18 years, Bohemia Agustiano stood in front of the "banda" for eight or nine hours, putting pieces of frozen chicken, rice and vegetables onto plates as they passed in a blur before her. Making the same motions over and over for such a long time, her feet in one place on the concrete floor, had its price. Pains began shooting through her hands and wrists, up her arms to her shoulders.

    Complaining also had a price, however. "I was reluctant to say anything because of my need," she says. "I have four children. So I preferred to stay hurt, and take pills for it, than to go out on disability." Finally, though, it got too much. She couldn't sleep without pain constantly waking her, and she was moving through a haze of exhaustion. So, she went to the company doctor.

    "He said my nerves were inflamed, and sent me to therapy," she recalls. "I know I have repetitive stress syndrome, but I asked him not to put me on restricted duty, because I knew the company would just send me home. There is no easy work in production. But he put me on restrictions anyway, and that's what happened. It didn't change anything, and eventually I had to go back to my job. It still hurts to work."

    It might seem hard to understand that a job like this is worth trying to keep. But being out of work is worse. So every day, Agustiano and 253 others are out in front of Overhill Farms' two plants on East Vernon Avenue, in an industrial enclave in southeast Los Angeles, trying to fight their way back onto those speeding production lines.

    The company says Agustiano's Social Security number is no good. That accusation, and the mass firings based on it, has put these 254 workers, mostly women, at the epicenter of the national debate over the nation's immigration laws. Overhill Farms and the advocates of immigration enforcement in the workplace claim the workers shouldn't be at work at all. Hiring people without legal immigration status is a crime, they say, and those suspected of the lack of such status should be fired.

    "But I believe we have a right to work," responds Erlinda Silerio, another fired Overhill Farms employee. "I work very hard, and I pay taxes. I came here, not to cause harm to anyone, but to feed my family."

    As the immigration debate grows sharper, unions and immigrant rights advocates across the country have to choose between Agustiano, Silerio and the other workers on one hand, and the company and the government on the other. Should they defend these workers or stand to one side as they're swept out of the factory onto the unemployment lines?

    Overhill Farms, with over 800 employees, was audited by the Internal Revenue Service earlier this year. According to John Grant, packinghouse division director for Local 770 of the United Food and Commercial Workers, the IRS was looking at the company's books for 2006-7. "They found discrepancies in the Social Security numbers of many workers," he says. "Overhill then sent a letter on April 6 to 254 people, giving them 30 days to reconcile their numbers with Social Security. They are all members of our union."

    After the workers got the letters, they organized a protest in front of the plant on May 1. Then, instead of getting 30 more days on the job, on May 2 the company stopped the lines. "They accused four people of terrorism," Silerio says. "They said they'd hurt the product." Another worker, Isela Hernandez, recalls that "they told us there would be no work until they called us to come back." For 254 people that call never came. The company terminated their employment.

    The fired employees contacted the Hermandad Mexicana Latinoamericana, a Los Angeles immigrant rights organization. Hermandad President Nativo Lopez helped them mount the demonstrations that have taken place in front of the factory ever since.

    According to Alex Auerbach, spokesperson for Overhill Farms, "the company was required by federal law to terminate these employees because they had invalid Social Security numbers. To do otherwise would have exposed both the employees and the company to criminal and civil prosecution." Auerbach says the company had no choice in the matter. "The company did not have any role in selecting which employees were subject to IRS action - it could not add or subtract fro? the list provided by the IRS," he alleges. "Overhill Farms had no role in initiating this action, and certainly did not benefit from it."

    "We asked to see the IRS letter or any other documents related to this," Grant responds. "We've never heard of the IRS demanding the termination of a worker. They never showed us any letter. The company doesn't have to terminate these people. No document we know of says they do."

    In addition, a few of the workers actually had shown the company valid Social Security cards. A year ago Lucia Vasquez, who'd worked at the plant in quality control for five years, changed her name and Social Security number when she regularized her immigration status. "I went to the human resources department," she remembers. "They took the new information and said there was no problem. The company changed the number and name they had on file, gave me credit for the time I'd been working there, and began paying me in the new name and number."

    Nevertheless, she got a termination letter too. She went with union representative Armando Espinoza to talk with Yolanda Diaz in human resources. "I gave her the letter, my Social Security number, and showed her my green card [immigration visa]. But Diaz said I was fired anyway because when I was hired I'd given different information to the company. I said the company knew about the change, and said it was fine a year ago. She said I was still fired."

    Workers have a different explanation for the firings. They accuse the company of hiring workers who don't receive the benefits in the union contract. In the last contract negotiations, the union agreed that Overhill Farms could hire as many as 25 percent of its employees on a part-time basis. Such workers wouldn't belong to the union and wouldn't get vacations, holiday pay or a medical plan. "By getting rid of the regular workers, to whom they have to pay benefits, they're saving a lot of money," Vasquez charges.

    Auerbach denies this. "The employees being hired to replace [the 254 fired workers] will be full-time employees, members of UFCW Local 770, with the same pay and benefits as other employees" including paid sick leave, vacations and health insurance. However, one worker, who asked not to be identified because he still works at Overhill, says "they hire part timers, who are only supposed to work 4-6 hours, but they get no benefits, no overtime, holidays or vacation." And another worker, who also asked not to be identified for the same reason, says he was hired at the end of May, at $8.15 an hour. "I have no benefits - no vacation, medical plan or anything," he says. "They call me a part timer, but I've been working 45-50 hours a week. I work every Saturday."

    The company is obligated to give the union a list of all hires, regular and part time. But as of the time this article was written, Local 770 hadn't received a list of those hired since the terminations.

    Whether or not immigration status is a pretext for terminations motivated by economic gain, however, the firings highlight a larger question of immigration policy. "These workers have rights," Nativo Lopez emphasizes. "They've not only done nothing wrong, they've spent years making the company rich. No one ever called the company's profits illegal, or says they should give them back to the workers. So why are the workers called illegal? Any immigration policy that says these workers have no right to work and feed their families is wrong and needs to be changed."

    Lopez refers to an immigration policy called employer sanctions, part of the Immigration Reform and Control Act passed in 1986. It says that employers may not hire people who are "not authorized" to work in the US - that is, people who have no legal immigration status. In effect, it makes it a crime for those workers to work at all.

    Starting in the mid-1990's, the Clinton administration began an indirect program of enforcing sanctions. It had the Social Security Administration send letters to employers listing the names and numbers of employees that didn't match its database? assuming that the reason for the mismatch was that the workers had no legal immigration status. Many employers then began firing those workers, especially when those workers were protesting bad or illegal conditions, or were active in joining unions. Under pressure from labor and immigrant rights groups, Social Security then included a statement in the letter warning employers not to conclude that the reason for a "no-match" was that the worker was undocumented. A further decision by an arbitrator in San Francisco concluded that, under a union contract, a "no-match" was not a just cause for firing a worker.

    In 1999 in Los Angeles, the AFL-CIO reversed its earlier support for employer sanctions and called for their repeal. Instead of making work a crime, labor activists argued, the government should enforce overtime, minimum wage and other labor standards, and protect the right of all workers to form unions. Today, most unions with immigrant members don't ask them about their immigration status. A worker is a worker, they hold, and all workers have rights.

    In 2007 the Bush administration proposed a regulation that would have forced employers to fire any worker listed in a "no-match" letter. Faced with the potential termination of millions of workers, including union members and workers trying to join unions, the AFL-CIO, several labor and building trades councils, the American Civil Liberties Union and the National Immigration Law Center won a federal court injunction stopping the proposed regulation from taking effect. That injunction still stands. But Bush also began developing a database called E-Verify, which employers would check to verify whether an existing or prospective worker has a legal immigration status. The main source of information for E-Verify comes from Social Security.

    Many expected the incoming Obama administration to drop the effort to overturn the Bush "no-match" injunction and put E-Verify on hold. Instead, incoming Homeland Security Secretary Janet Napolitano announced that DHS will work "to maintain a legal workforce through training and employee verification tools like E-verify, which improve the accuracy of determinations of employment eligibility and combat illegal employment," according to the ICE Worksite Enforcement Fact Sheet. The sheet says prohibiting the employment of undocumented workers will "target the root cause of illegal immigration." And the White House web site says President Obama "will remove incentives to enter the country illegally by preventing employers from hiring undocumented workers and enforcing the law."

    Since the Obama administration announced that it would push for a comprehensive immigration reform based on those ideas, unions and immigrant rights groups around the country have had to choose whether or not to defend the undocumented workers they would target. The old AFL-CIO position, adopted in 1999, would put labor in opposition, calling instead for sanctions' repeal. Some Washington, DC, immigration lobbying groups, however, have decided to support the administration policy.

    One of them, Reform Immigration for America, says that "any employment verification system should determine employment authorization accurately and efficiently." And the AFL-CIO and the breakaway labor federation Change to Win recently agreed on a new immigration position that supports a "secure and effective worker authorization mechanism ... one that determines employment authorization accurately while providing maximum protection for workers."

    At Overhill Farms, the 254 fired workers might ask what kind of protection the authors of the statement have in mind. They paid union dues for many years, yet a work authorization program that prohibits their employment in effect justifies their firing. Would their union defend them, or would it sit by while they lose their jobs?

    "The union should try to stop people from losing their jobs," says Erlinda Silerio. "It should try to get the company to hire us back, and pay compensation for the time we've been out. It should comm?nicate with us and keep us informed." But, Agustiano says, " this is a month and a half later, and they still haven't had any meetings with us."

    Grant says UFCW Local 770 filed grievances over the firings, but without an expedited procedure, the legal process could drag out for months. Meanwhile, it plans a meeting to connect workers with resources for paying rent and utilities, immigration lawyers and a food distribution. And the local did try to convince the company beforehand, he says, not to fire the workers.

    The tension between workers and the union highlights the problem of labor support for work authorization. How will unions fight to defend people like the women at Overhill, and at the same time agree that people without authorization shouldn't be working?

    This was the problem debated at the AFL-CIO convention, which took place in Los Angeles in 1999. If existing unions don't actively defend those workers, who can blame them if they try to form or find unions who will? Nativo Lopez and the Hermandad Mexicana Latinoamericana last year took the initial steps to form such a union, the Hermandad General de Trabajadores Union Internacional. That new organization, which will organize workers on a community basis, opposes employer sanctions and advocates helping workers to resist them. "When I look around Vernon," Lopez says, "all I see are other factories like Overhill, filled with immigrant workers in the same abysmal conditions. If they all start firing people as they have here, this place will look like a war zone. But if we fight to defend people, we can organize them."

    Grant agrees that sanctions are a bad idea. "The companies exploit workers, and then claim that sanctions require them to fire them when it's convenient. Firings like the ones at Overhill are the consequence," he says. "It is a clear example of what's wrong."

    What attracts the fired workers to the Hermandad is that it goes beyond the legal machinery of the grievance procedure, and organizes an active resistance. Although Overhill lawyers have threatened Lopez, the organization has discussed plans to conduct a consumer education program, because Overhill sells its products to fast food chains like Jack-in-the-Box, Panda Express and Pollo Loco. "We're their customers," Agustiano says, "and we're going to tell the media what happened to us."

    Fueling that determination is economic pain. Agustiano says "we don't even have enough money for food. I went to local churches with a friend, asking for it." Silerio, a single mother with a teenage daughter, says "We're desperate. And there are single mothers here with more children, and couples who've been fired, who both worked in this factory."

    But anger is stronger than hunger. "The company treats us like criminals," Agustiano charges. "I worked there for 18 years. Was I a criminal when I was working all those years?"

Last modified on Saturday, 20 June 2009 11:32