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                                   THE UNITED FARM WORKERS OF AMERICA, AFL-CIO 

                                                        TO THE

                                          HOUSE SUBCOMMITTEE ON IMMIGRATION

                                               HOUSE JUDICIARY COMMITTEE

                                                         Presented by

                                                Marcos Camacho, General Counsel

                                             United Farm Workers of America, AFL-CIO

                                                         June 15, 2000

 Mr. Chairman:


My name is Marcos Camacho. I am General Counsel of the United Farm Workers of America, AFL-CIO. Cesar Chavez founded the United Farm Workers of

America, AFL-CIO in 1962. Today, the UFW represents and organizes farm workers in several states including California, Washington, Arizona, Texas, and

Florida. We represent farm workers who work in wine grapes, table grapes, raisin grapes, citrus, row crops such as broccoli, lettuce, celery, tomatoes, and other

vegetables, mushroom plants, nurseries, tree fruit, and roses. Since its inception the UFW has been deeply concerned about the immigration policies that affect farm

workers in this country. The UFW was actively involved in the legislative process that resulted in the enactment of the Immigration Reform and Control Act of 1986

(IRCA). The UFW representation of and day-to-day work with farm workers throughout the country give it a unique background and experience to provide

meaningful comments and insight into the issues concerning immigration policy and how it affects farm workers in this country.


Mr. Chairman, thank you for the opportunity to appear before the Subcommittee today.


The UFW has examined H.R. 4548 and concluded that if enacted, it will have a devastating impact on the two million farm workers who work in America's fields

and groves. This legislation would allow employers to bring in hundreds of thousands of foreign workers as non-immigrant guestworkers tied to agricultural jobs

under a system that would guarantee their economic poverty and political powerlessness. Furthermore, neither Rep. Pombo's bill nor H.R. 4056 introduced by Rep.

Bishop address the underlying problems which have created an unstable agricultural labor market.




What are the economic realities facing America's farm workers at the beginning of the 21st Century?


The most recent and reliable information we have from the National Agricultural Workers Survey shows that the situation of farm workers has continued to decline:

wages have stagnated, annual earnings remain beneath the poverty level, and farm workers face chronic unemployment.


In 1997-98, most farm workers held only one farm job per year and were employed in agriculture for less than half a year.


Even in July, when demand for farm labor peaks in many parts of the country, just over half of the total farm workforce held agricultural jobs.


Since 1990-1992, the average work year in agriculture has decreased from 26 to 24 weeks while the number of weeks in nonagricultural employment has fallen

from eight to five. Another month of unemployment has been added to the farm worker misery index.


At the same time despite a strong economy and record prosperity, farm worker wages have lost ground relative to those of workers in the private, nonfarm sector.

Adjusted for inflation, the average real hourly wage of farm workers has dropped from $6.89 to $6.18. Consequently, farm workers have lost 11 percent of their

purchasing power over the last decade.


The result is that farm workers are increasingly disadvantaged. Today fewer farm workers own a vehicle. More workers now rely on contractors and raiteros for

transportation to work often in unsafe and uninsured vehicles. Another large change is in home ownership. In 1994-95, one third of all farm workers owned or were

buying a home. By 1997-98, only half as many farm workers were buying their home.


All of these facts --low wages, underemployment, and low annual wages--point to a national oversupply of labor. It is the continued low income of farm workers

which has destabilized the agricultural labor market by causing farm workers to seek jobs paying higher wages and offering more hours of work.


This is the economic reality that the National Council of Agricultural Employers doesn't want discussed in this hearing. For them, the only problem is how to secure

access to another pool of low-wage workers, not what to do about the desperate plight of the two million farm workers already here.


We believe that the current labor practices in U.S. agriculture are unsustainable in the long term and, unless fundamentally changed, will continue the socially

destructive economic hardships faced each day by the farm workers throughout this country while at the same time doing severe damage to U.S. agriculture's global



Unfortunately, H.R. 4548 is not a step forward into the 21st century, but a step backward to an era of indentured servitude.




We oppose this bill for the same reasons we have opposed past efforts to revive the Bracero Program of the 1950s. There is no question that these programs

undermine any efforts to improve the lives of America's farm workers and maintain the status quo of low wages and underemployment by adding to the supply of

workers. We have no reason to think that passage of this legislation will reduce in any way the continued influx of new workers from Mexico; certainly, there is

nothing in House Bill 4548 which would link the admission of the H-2C workers to a reduction in the number of unauthorized workers.


Our objection to these so-called "guest worker programs" is based on more than just the effect that increasing the supply of labor will have on farm worker wages.

The fundamental flaw in these programs is that workers are not free to change employers and offer their labor in a free labor market. Without union representation,

the best protection that most farm workers have from abusive working conditions is the right to walk away from a bad employer and find work elsewhere. Guest

workers don't have that right. That is really the underlying issue here. For decades agricultural employers have refused to reform their labor practices with the result

that their workers, including hundreds of thousands of workers who were legalized in the 1980s, have left them for employers who offer better wages and working

conditions. Now, the NCAE is proposing to replace a free labor force with a captive labor force of guest workers who don't have the option to change employers.


Proponents of this legislation argue that Mexican farm workers will be better off if they can enter the country legally. Substituting an endless supply of guest workers

for unauthorized workers merely changes the labels, not the underlying structural flaws in the current labor market. Guest workers are just as vulnerable to

exploitation as unauthorized workers. At the same time that coyotes are charging unauthorized workers hundreds of dollars to smuggle them into the United States,

most of the H-2A and H-2B workers who come to this country from Mexico are forced to pay the grower's recruiter between $500 and $1,000 for their visa.


In some ways, guest workers are in a worse position to protect their rights even than undocumented workers. They are entirely dependent on a specific employer for

work, not only during a given season but from year to year. Systematic blacklisting of worker is widespread throughout the current H-2A program. Given the

overwhelming coercive power enjoyed by the employer of guest workers, the same kind of abuse and exploitation which led to the end of the Bracero Program is

inevitable in any new program.


The Pombo bill would allow a virtually unlimited flow into the country of temporary foreign workers by eliminating many of the protections for workers contained in

the current law. It would take us back to the Bracero Program of the 1950s, when hundreds of thousands of Mexican workers were treated as little better than

slaves. It is no exaggeration to say that the Pombo bill actually provides fewer protections for workers than the Bracero Program did. (A copy of the official Bracero

Agreement is attached to my testimony).


Under the current program, before H-2A workers may be employed, the Secretary of Labor must certify that "the employment of the alien in such service or labor

will not adversely affect the wages and working conditions of workers in the United States similarly employed." In order to protect U.S. workers from adverse

effect, the Secretary has promulgated regulations containing the minimum benefit, wage and working conditions that must be contained in the employer's job offer.

These are the labor protections that the NCAE wants eliminated.


Under the Pombo bill, the Secretary of Labor would no longer have to certify that the use of the guest workers would not adversely affect U.S. workers; the

Secretary's role is limited to approving the employer's application. If the employer's application contains the terms and conditions of employment required by section

201 of the Pombo bill, the Secretary must approve the application; she has no authority to require that other labor protections be provided.


Section 204 sets forth employment requirements with respect to wages, housing, and transportation. In each instance, they provide workers with less protection than

under the current law:




Under current law, H-2A employers are required to pay their workers the so-called adverse effect wage rate ("AEWR"). The AEWR is the annual average hourly

wage rate for field and livestock workers in the state where the H-2A workers are employed. The current AEWR for California is $7.27 per hour; the AEWR for

Florida is $7.25 per hour.


Under the Pombo bill, the current AEWR requirement would be eliminated. H-2A employs would only have to pay the prevailing wage in a particular area and crop;

often this will be a prevailing piece rate rather than an hourly rate. Where wages have been depressed by the use of undocumented aliens, this method "locks in" the

depressed wage rate forever. Under the Pombo bill, a 5% "premium" would be added to the required wage only if the prevailing rate resulted in average earnings

below the average hourly wage for field and livestock workers in the state.


The Bracero Agreement required that wages to be paid the worker shall be the same as those paid for similar work to other agricultural laborers under

the same conditions within the same area, in respective regions of destination.




Under current law, H-2A employers are required to provide housing "without charge to the worker" to those workers who are not reasonably able to return to their

residence within the same day. If provided by the employer, the housing must comply fully with federal standards. Employers cannot charge workers for security



Under the Pombo bill, employers could substitute a housing allowance for free housing whether or not housing was actually available to workers in the area of the

job. The amount of the allowance would not be set based on the fair market rental in the area of employment but the minimum fair market rental for the state as a

whole. For example, in California, the housing allowance under the methodology set forth in the Pombo bill would amount to only $4 per day! Workers would get

the same allowance whether they were working in Tulare County where the fair market rent for a 2 bedroom unit is $513 per month or Santa Barbara County where

the fair market rent is $878 per month. Moreover, the housing would no longer have to meet federal standards. Employers would be able to charge workers for

security deposits, maintenance, and utilities.


The Bracero Agreement provided that the Mexican workers will be furnished without cost to them with hygienic lodgings, adequate to the physical

conditions of the region of a type used by a common laborer of the region and the medical and sanitary services enjoyed also without cost to them will be

identical with those furnished to other agricultural workers in the regions where they may lend their services.




Current law requires employers to advance transportation expenses to U.S. workers if it is a prevailing practice among area employers to do so, or if transportation

is being provided or advanced to the H-2A workers. After the worker has completed 50% of the contract period, the employer is required to reimburse

transportation from "the place from which the worker has come to work for the employer to the place of employment." DOL has taken the position that workers

must be reimbursed for travel from the actual place where the worker was recruited, not a location that the employer "deems" to be the place of recruitment.


Under the Pombo bill, there is no obligation for the employer ever to advance transportation. Thus, an H-2C employer will be free to provide transportation to

H-2C workers without having to offer the same benefit to U.S. workers. Reimbursement of transportation is limited to distances greater than 100 miles and is only

available to individuals living in grower provided housing or housing provided through vouchers. The place where the alien is issued the H-2C visa is deemed to be

the alien's place of residence.


Under the Pombo bill, a worker can be recruited in his home in southern Mexico, told to report to the U.S. consulate in Calexico to be issued his visa and then travel

to the Imperial Valley, a journey of hundreds of miles and not receive any transportation reimbursement (the Imperial Valley is less than 100 miles from Calexico).

Moreover, there is nothing in Pombo bill that prevents the employer from actually charging the worker for this transportation.


The Bracero Agreement required that transportation and subsistence expenses for the worker, and his family, if such is the case, and all other expenses

which originate from point of origin to border points and compliance of immigration requirements, or for any other similar concept, shall be paid

exclusively by the employer or the contractual parties.


While the Pombo bill weakens existing wage, housing, and transportation protections, it totally eliminates many other worker protections found in the DOL

regulations. These protections exist because under current law, the Secretary of Labor must certify that the employment of the H-2A workers will not adversely

affect the wages and working conditions of U.S. workers similarly employed. Among the protections that would be eliminated are the following:


No Preferential Treatment of H-2A Workers


Under current law, the employer's job offer to U.S. workers must offer the U.S. workers no less than the same benefits, wages and working conditions which the

employer offers H-2A workers. Conversely, no job offer may impose on U.S. workers any restrictions or obligations which will not be imposed on the employer's

H-2A workers.


This critical protection for U.S. workers is nowhere to be found in the Pombo bill.


Guarantee of Employment


Current regulations require that the employer guarantee to offer the worker employment for at least three-fourths of the workdays of the total periods during which

the work contract and all extensions thereof are in effect. This "three-fourths guarantee" gives migrant workers some indication of their potential earnings and

discourages employers from over-recruiting to secure a labor surplus and drive down wages. Under the Pombo bill, the three-quarter guarantee is eliminated.


The Bracero Agreement provided that for such time as they are unemployed under a period equal to 75% of the period (exclusive of Sundays) for which

the workers have been contracted they shall receive a subsistence allowance at the rate of $3.00 per day.


Limitations on Productivity Requirements


Given that an H-2A worker has no choice but to work for the employer who was issued his visa, H-2A employers are in a position to speed up production

requirements to the limit of human endurance. Current regulations provide that employers cannot require minimum productivity standards higher than those normally

required by other employers for the activity in the area of intended employment, unless DOL approves a higher minimum.


The Pombo bill allows growers to impose new productivity requirements whenever they want.


The Bracero Agreement provided that piece rates shall be so set as to enable the worker of average ability to earn the prevailing wage.


Provision for Contract Impossibility


The current regulations provide that an employer may terminate the worker's contract because a hurricane or other Act of God makes the workers services

unnecessary. However, the employer is required to either transfer the worker to other comparable employment or return the worker to his home at the employer's

expense and reimburse the worker for the cost of transportation to the job site.


The Pombo bill provides no such protection; the worker bears all the risk.


Written Contract Required


Under the current regulations, workers must be provided with a copy of the work contract, no later than on the day the work commences.


Under the Pombo bill, there is no requirement that a worker be provided with a contract of employment.


The Bracero Agreement provided that contracts will be made between the employer and the worker under the supervision of the Mexican Government

(contracts were required to be written in Spanish).


In short, the Pombo bill offers workers significantly fewer protections than Mexican workers were given under the 1942 Bracero program.


The Pombo bill would also create a new bureaucracy dedicated more to "proving" there is a labor shortage than to actually helping farm workers find employment.

Each state employment service would be required to create a farm worker "registry." H-2C employers would not be obligated to hire any U.S. worker who was not

registered and would not be expected to undertaken any real efforts to recruit U.S. workers before turning to the H-2C program. The registry concept has already

been piloted in Florida where it was an abysmal failure.


What would be the impact of the Pombo bill on farm workers?


For the one million legal farm workers and their family members, the Pombo bill would push them even deeper into poverty. Currently able to find work only about

135 days per year, they would now find themselves in a desperate competition for jobs as growers sought to take advantage of the new H-2C program. U.S.

workers would face not only competition for jobs but for scarce housing since many H-2C workers will be forced to seek their own shelter. Further declines in

wages would be inevitable as one crop after another became dominated by H-2C workers.


For the current H-2A workers, the Pombo bill means a pay cut as growers switch from the AEWR to the lower prevailing wage. They will also lose their

transportation reimbursement from their homes to the border. They will lose their guarantee of employment. Their employers who provide housing will now be able

to charge them for security deposits, maintenance, and utilities. Their employer may decide not to provide housing at all, and they will have to try to find someplace

to live in a strange country on only $4 per day. If they are successful, they will probably have to pay a contractor or raitero $3 to $5 per day to take them to work

since the Pombo bill eliminates the current requirement that the employer provide free transportation from the employee's living quarters and the worksite. Workers

may also find themselves subjected to excessive meal charges and charges for tools and equipment.


For the currently unauthorized workforce, these workers will remain trapped in the underground economy where they will surely be joined by new immigrants for

there is nothing in the Pombo bill directed at halting the activities of the farm labor contractors and coyotes who profit from illegal migration. The endless cycle of

unfettered immigration of low wage workers, followed by the further degradation of wages and working conditions, followed by the next wave of desperate

immigrants willing to work for degraded wages will continue.


There is, however, a reasonable alternative.




The status quo --premised on an abundant supply of impoverished workers-- is intolerable. Congress must call upon agricultural employers to abandon their low

wage strategy for practices that allow their workers to escape poverty. The first step must be to impose market discipline on the industry and force it to compete for

labor based on wages and working conditions rather than allowing it to demand government programs that guarantee it workers at intolerably low wages and

working conditions. Government intervention to artificially inflate the labor supply to keep down wages and working conditions should be no more tolerated than the

government imposing price controls on fruits and vegetables.


Rather than allowing agriculture to revert to a 20th century "Harvest of Shame" past, we need to push it toward a sustainable 21st century future where there is a real

partnership between agribusiness and its workforce.


We believe that regulated legal immigration is better than unregulated illegal immigration.


For that reason, we support a generous farm worker adjustment program similar to the one enacted by Congress in 1986. We also support immigration reform this

year which would address the following priorities:


allow Salvadoreans, Guatemalans, Hondurans and Haitians to apply for adjustment of status on the same terms as already provided to Cubans and Nicaraguans in



allow adjustment of status to all persons of good character who have resided in the United States prior to 1994;


restore the provision permitting those who are out of status but otherwise eligible for permanent residence to adjust their status in the United States;


reunite families by establishing a program to provide additional visas for family members of citizens and permanent residents so as to reduce unacceptable backlogs

and help stabilize the workforce.


These measures, while not farm worker specific, would allow thousands of farm workers to obtain legal residency.


We also support new approaches to reducing undocumented immigration and employer abuse including the enactment of whistleblower protections for

undocumented workers who report violations of worker protection laws or cooperate with federal agencies during investigations of employment, labor and

discrimination violations. Such workers should be given protected immigration status and accorded full remedies, including reinstatement and backpay. Furthermore,

undocumented workers who exercise their rights to organize and bargain collectively should also be provided protected immigration status.


With respect to the existing H-2A program, we believe that labor and business should work together to design cooperative mechanisms that allow law-abiding

employers to satisfy legitimate needs for new workers in a timely manner without compromising the rights of and opportunities of workers already here. It is critical

that immigrant workers should have full workplace rights in order to protect their own interests as well as the labor rights of all American workers. The current

program does not meet this standard.


We need to strengthen the protections under the current H-2A program to better protect both H-2A and U.S. workers. In doing so, we believe that the Committee

needs to focus on three broad principles which we believe both side of this debate should be able to agree upon.


First, it should not be cheaper to hire an H-2A worker than to hire a U.S. worker.


Currently, employers of H-2A workers are not required to pay FICA and FUTA taxes on their H-2A employees. This means that an H-2A employer saves

13.85% by hiring a foreign worker instead of a legal U.S. resident. Congress needs to remove this economic incentive to discriminate against U.S. citizens and legal

residents. In 1995, the National Council of Agricultural Employers proposed that H-2A employers be required to pay an amount comparable to what they pay for

FICA and FUTA taxes on domestic workers into a trust fund to be used to fund the administrative costs of the program. We think trust fund is a good idea;

however, we propose that the funds be used for the purpose of improving labor management practices in agriculture by stabilizing the labor force, improving

productivity, and increasing earnings for farm workers through longer periods of employment.


The second principle is really a corollary of the first principle:


All temporary guestworkers should be afforded the same workplace protections available to U.S. workers.


Otherwise, unscrupulous employers gain an advantage by employing foreign workers. Furthermore, we are committed to this principle with respect to foreign

workers from Mexico by the NAFTA Labor Side Accords in the United States agreed to "providing migrant workers in a Party's territory with the same legal

protection as the Party's nationals in respect of working conditions." The most important federal statutory protection for farm workers in the United States is the

Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. ' 1801 et seq. ("AWPA"). However, H-2A workers are specifically excluded from the

protections of the Act. They need to be covered by AWPA.


Third, employers must have a continued incentive to improve wages and working conditions.


In 1993, the national Commission on Agricultural Workers concluded its report to Congress by noting that--


The response of the United States to competition from countries that pay even lower wages should be the development of a more structured and stable domestic

labor market with increasingly productive workers. Industries must modernize to remain successful in the increasingly competitive international market place.

Agriculture is no exception...To assure its long-term competitive position, agriculture must improve its labor management practices.


In reaching its conclusions, the Commission specifically noted that farm workers face special problems if they attempt to organize and bargain collectively in order to

improve their working conditions: "effective organizing is made more difficult by the fact that farmworkers are essentially powerless, both in objective terms and

relative to the agricultural employers who oppose organizing." However, it has been the UFW's experience that where farm workers have been able to organize,

there has developed the more structured, stable and productive work force which the Commission recommended as the long-term solution to the agricultural labor

problem in the United States. If we want to break the cycle of an unstable labor market which constantly needs to be replenished with new foreign workers, we

should encourage the emergence of a stable labor market through organization and collective bargaining.


The UFW is actively working on such a model today. On December 14, 1994, workers at Bear Creek Production Co., the world's largest rose producer, voted to

have the UFW be their collective bargaining representative. Bear Creek chose not to fight the UFW's election victory and instead sat down and bargained a

contract. A new partnership was established based on six principles: 1) commitment by both leadership levels to making the partnership work; 2) the development of

continuous learning and skill building; 3) the open sharing of technical and financial information; 4) the joint development of the partnership plan; 5) continuous

integration of leading-edge technology; and 6) recognizing the continual need for trust and open communications. The workers, Bear Creek, and the UFW decided

that the major issues the partnership should address were 1) the growth of difficulties inherent in the agricultural industry; 2) the physical demands and seasonality of

the work; 3) the virtual absence of standard employee benefits; and 4) the over-reliance on inexpensive labor rather than development of a skilled workforce. With

this new partnership between labor and management, Bear Creek has gone from merely breaking even to record profits in 1998. Most notably, hourly labor costs as

a percentage of total overall spending has been reduced by 3% since 1996 and by 2% since 1998, at the same time wages and benefits have improved.


It is only through this kind of approach that the cycle of farm worker poverty can be broken and we can create a stable agricultural labor market that benefits all

interested parties.


We thank the Subcommittee for its consideration of our views.