The Wages of Death

That morning, Edilberto Morales' supervisor called at 3. The phone rang in the apartment above the gun store, where he and five friends shared three rooms. They all got up, and in the cold darkness they put on their work clothes and made their lunch, their breath puffing like smoke in the September air.

Outside, the van picked them up a little before 6. Another nine people were already inside -- they lived in the apartment of the driver, Juan, just a few minutes away in the tiny town of Caribou, Maine. The men stopped at the gas station to buy snacks, and the van pulled out onto the road. Its destination lay more than two hours away -- a field of trees at the end of a network of dirt roads in the north Maine woods.

At 8 a.m. the jolting of the van jarred Morales awake, and he saw they were barreling fast down the track through the trees. They'd left early that morning because rain had kept them from working the day before -- Juan was trying to squeeze a few additional minutes into the workday. "I told him to slow down, but the others woke up, too, and began teasing me, asking if I was scared," Morales recounted. "They all wanted as much time to work as they could get." Bumping and swaying against the men crowded around him, he fell back to sleep.

The next time Morales awoke, the van was speeding across a low wooden bridge. They were almost to the other side when he felt the back tire pop. With no side railing, the van shot off the road and hurtled into the Allagash River below.

"When I came to," Morales recalled, "we were at the bottom of the river, with the tires upward. The front windshield was shattered and water was rushing in. I took a deep breath, and I remember some of the other men crying out. I started pounding on a side window and I broke it -- I don't remember if it was with my hand or something else. Then I felt someone tugging at my pants but I couldn't do anything for them because I couldn't breathe. I finally came up to the surface and took a breath."

In the freezing water, with no pants or shoes, Morales went under again, to find his friends. He says he remembers touching someone's hand, "but they were dead." Somehow he swam to shore. "I looked toward the river," he said, "and saw the blood and gas come up to the top. I began to scream. The water was so cold and I was so scared I didn't know what to do." He stood there crying by the river in the middle of the frozen woods until a truck came by. The drivers, two forest rangers, put him in the cab and turned on the heat full blast.

Morales was alive, but 14 friends were not. He saw the van pulled from the water with their bodies still inside. The next day he identified them for authorities. Then he went back to the apartment and packed their belongings for the long trip back to Guatemala and Honduras.

"I still think about them when I go to sleep," he said in an interview four months later, his voice shaky and uncertain. "I remember back to what happened and how I had to recognize all of the bodies. I think about why I was the only one who survived. Maybe we all should have died." Four were his neighbors in the tiny mountain town of La Democracia, Guatemala. One was Juan Selles, his nephew.

Edilberto Morales will probably never stop pondering the question of guilt and innocence, including his own. On the last day of December 2002, the U.S. Department of Labor gave him one answer. It fined Evergreen Forestry Services, his employer at the time, $17,000. While "in no way meant to place a value on the tragic loss of life," wrote Labor Department official Corlis Sellers, the department concluded that the company had failed to ensure the safety of the 15 men. Then it moved to revoke Evergreen's license to operate.

But the problem of responsibility is not so easily solved.

Why was the van traveling so fast? It's a simple question, yet the answer requires unraveling the system of contract labor in which these 15 men worked and through which thousands more come to the United States every year. It requires a look at the lives of Morales and his friends, and at the arduous and expensive trip that brought them from the hillsides of their hometowns, planted with coffee trees, to Maine's cold pine plantations.

Soon this simple question will be asked on the floor of Congress, when those industries dependent on guest workers such as Morales move to extend recruitment further and create other programs for supplying contract immigrant labor to U.S. industry. Political momentum for these programs died on September 11, but after nearly two years, their sponsors have recrafted their message. Guest workers, proponents contend, now strengthen national security and provide control over borders because, unlike undocumented workers, their entries, exits and movements within the United States can be closely tracked.

For the four drowned Guatemalans, the road to Caribou began in La Democracia, a small town on the Selegua River, which flows north into Chiapas, Mexico, a dozen miles away. Its steep hillsides are covered with coffee plantations where the men all worked most of their lives. The streets into their neighborhoods from the main highway are unpaved, and so steep that only a four-wheel-drive vehicle can make it up to the homes, and then only in dry weather.

There, 27 years ago, Juan Mendez married Florinda Sanchez, who lovingly remembers him as a "playful" man. Three years ago, after the price of coffee fell from 1,000 quetzales per hundred kilos to 350, Mendez could no longer find enough work to support his family. He took out a 20,000-quetzal (about $2,500) loan, at 15 percent interest, and paid Silvano Villatoro, a local recruiter, to take him north to the United States to work.

"When he left," Sanchez recalls, "he said that if it was God's will, he would return. If not, everyone had to die sometime, and if he died working he would be happy. And that is how it happened."

Cecilio Morales borrowed 10,000 quetzales for the same purpose. When he left with Villatoro, his wife, Natividad Maldonado, had no money and no food in the house. Taking her 12-year-old son to work with her, she began harvesting coffee beans until the first money orders arrived from the United States.

Morales had the same dream of going north, but at first he tried to realize it on his own, as an undocumented worker. He borrowed 10,000 quetzales and made two attempts. Each time the Mexican police picked him up before he'd even made it out of Chiapas, the state immediately north of Guatemala. Then he borrowed another 10,000 quetzales and asked Villatoro to take him, too. By the time Morales' airplane took off from the Guatemala City airport, counting interest, he owed almost 30,000 quetzales.

When the men approached Villatoro, they were at one end of a complex labor-recruitment system. Villatoro himself had been coming and going between Guatemala and the United States for almost 20 years. In 1985 he left La Democracia, partly for economic reasons and partly because of the war. For a decade he'd belonged to the civil defense corps, a paramilitary organization set up by the Guatemalan army to fight the left-wing guerrillas of the Guatemalan National Revolutionary Unity (URNG).

He began working in the United States in 1989, at first without papers. Then he received political asylum in 1992. Two years later he began working for Evergreen Forestry Services, a large labor contractor that moved him from forest to forest throughout the southeast, planting trees that would eventually be harvested to make paper.

In 1996 immigration reform created a new visa category -- H2-B -- that companies could use to bring seasonal workers to the United States for jobs outside of agriculture. Evergreen and Villatoro made a deal. He went back to Guatemala and brought his son and brother under the program. "When the company saw that Guatemalans work hard, they gave us an increase in the number of visas," he explains. "The next year we took 10 people, and 15 the next. Forty-five traveled in the group last year. This year [2003] we are up to 70."

Traveling with Villatoro gives two big advantages to those he accepts. The price charged by a coyote, or smuggler, to take someone from Guatemala to the United States illegally is about 35,000 to 40,000 quetzales. Villatoro only charges the expense of the airfare and visa processing -- about 8,000. For that sum, people gain temporary legal status and don't have to hide in the U.S. immigrant underground.

Villatoro, who's made enough money as a contractor to buy his own coffee fields back in Guatemala, inspires both admiration and fear in La Democracia. He still has his old association with the paramilitaries, and now he's added the power to decide who can go to the United States to work. "First I got family and friends," he says. "I interview each person individually. If they are teachers or students, you know they haven't done hard labor. I tell them to stay here. I only sign up people who are willing to work." As an indication of his reputation, the person who pointed out his house to me hid under blankets in the backseat of the car, hoping to avoid being seen by the Villatoros and possibly offending them.

Villatoro says he doesn't receive a bounty for each worker recruited, only his wages as a worker. But his whole family is now working in the United States, including his wife, and he spends much of his time on the logistics of transporting and moving his crew. What's more, he's become a coffee planter himself. "I grew up working in the coffee fields, but I did not own any until after making all of those trips," he says. "I was able to buy land that way."

Villatoro's success story is based on the labor of his crew on the pine plantations. One worker in Huehuetenango, a city two hours away from Democracia, says of this kind of work: "Our job was to plant little trees. They gave us a tool, called a talache, and a bag made of sailcloth to carry the trees. With one hand you open a hole in the soil with the tool, and with the other you take out the tree and put it in. Then you cover the hole with soil and press it down with a kick of the heel. You can fit 600 pines in the bag -- about 60 or 70 pounds. So you plant a tree and then take two steps forward to plant the next. It has to be fast. Otherwise you don't plant enough trees."

The work is paid by piece rate, and accusations of cheating by labor contractors are common. This worker, afraid he wouldn't be rehired if he revealed his identity, was employed by another contractor, Eller & Sons Trees Inc. of North Carolina. "They told us they'd pay $27.50 per thousand trees," he explains. "Sometimes, when the soil was harder, we'd plant 2,000 trees, or 2,500. But to our surprise, the [weekly] checks would only amount to $100, because they deducted money they said we owed for the equipment we were using. Only $100! There was not one week that we received more than that. I was planting for two months, and the check before the last was for $138, and they still told me I owed them."

The day the occupants of the van drowned, they were actually on their way to thin trees with power saws (also by piece rate), at the end of the work season. But for most of their time in the United States they'd been planting trees, too, and Morales has similar memories. "We were paid $25 [per 1,000]," he says, "but with all of the deductions, for the most part our check would come to $300 to $400 every two weeks."

From that, before sending anything home, they had to pay for food and board. According to the Eller & Sons worker, "They were charging $40 per week per person for the hotel where we were staying, and we had to share the room among five people. We were eating, but we couldn't send any money to the family here in Guatemala. We didn't have enough." Morales' apartment in Caribou above the gun store cost each worker $100 a month.

Typically, workers describe a 10- or 11-hour day, with no lunch break. Under the law, companies must pay overtime for the extra hours, even on the piece rate, but almost none do. Evergreen was investigated and cited many times by the Labor Department's Wage and Hour Division for unpaid overtime. One investigator, bemoaning "a lengthy and woeful history of noncompliance," noted that "regardless of the hours worked, the payroll indicated consistently 40 hours." Other citations included using unlicensed vehicles for transporting workers, although in the case of the drownings no such accusation was made. Carol Brooke, staff attorney with the North Carolina Justice and Community Development Center, says Evergreen "was fined over and over for violations in the way they paid, not counting hours, unpaid overtime, housing violations and using unlicensed farm-labor transportation."

While some inspectors at the Labor Department tried to enforce compliance with the Fair Labor Standards Act, it is clear that other parts of the government were working against them. Despite the fines, Evergreen received the certification required for employing H2-B workers every year from the Employment Training Administration (ETA), another part of the Labor Department. Brooke herself wrote to the Atlanta ETA office and the Immigration and Naturalization Service five times, objecting to the certification. Regina Luginbuhl, bureau chief of the Agricultural Safety and Health Bureau, wrote, too, and William Green, the state's monitor advocate, filed a complaint with the office of the inspector general.

Floyd Goodman, who is responsible for H2-B certification in the Atlanta office, wouldn't comment directly on Evergreen. But, he said, unless the Wage and Hour Division revokes an employer's license, he assumes any applicant is abiding by state and federal law (a requirement for H2-B certification). His office has never rejected an H2-B application for violations of the Fair Labor Standards Act, or state wage and hour laws. "We have no information that they're doing that," he said. When asked about the letters from North Carolina, he responded, "I have no way of knowing if the accusations are true or not." He sends a copy of every certification application to the Department of Labor's Wage and Hour Division. "If there are outstanding violations, they wouldn't get their contractors' license. If they've been fined, and paid their fines, then that satisfies their legal obligation."

Lack of enforcement doesn't just protect labor contractors. Further up the food chain are much larger economic interests. Tree planters are workers in the paper industry, planting and cultivating trees that will eventually be harvested and taken to paper mills. And paper is one of the most oligopolized industries in North America. International Paper alone is the largest private landowner in the United States, with more than 12 million acres of forest.

Paper companies don't employ tree planters directly, however. They hire labor contractors such as Evergreen and Eller & Sons. The workers who died in Maine were even more insulated from the big boys. There Evergreen had been hired by a land-management company (another common practice), Seven Islands Land Co. And Seven Islands was working for a private landowner, Pingree Associates. But in the end, the trees the men were going to thin that fateful day will eventually wind up in a big paper mill.

The paper companies have kept the price of planter labor low for 20 years by setting up a system in which contractors such as Evergreen bid against one another for contracts to plant or thin a given tract of land. In January 2001, the Florida-based Migrant Farmworker Justice Project and Virginia Justice Center sued three of the largest paper conglomerates, Champion, International Paper and Georgia-Pacific, accusing them of responsibility for unpaid labor and overtime violations by their contractors. In the course of depositions, paper-company officials admitted that the price they were paying contractors for labor hadn't gone up in as much as 20 years. As a result, contractors who used to hire people living in the United States began bringing in H2-B workers to cut wage costs.

The paper companies say they're not responsible because they don't directly employ the planters. But the Migrant Agricultural Worker Protection Act specifically says that if the larger company has the power to control the work and employment conditions, it is responsible. Morales remembers that "a lot of [white] inspectors, who came in a company truck, would inspect our work. If they didn't like it they would send us back and have us do it again." Morales didn't know the name of the company on the truck -- just that there was one.

Last year, however, a U.S. District Court judge ruled against the plaintiffs, holding that the companies were not responsible for employment conditions. The cases are currently on appeal. Farmworker advocates are very concerned about the possibility that federal law could be weakened if the companies prevail. "The act was passed in 1983 specifically to establish grower liability, because they were untouchable before," says Cathleen Caron, former staff attorney at Florida's Migrant Farmworker Justice Project.

And in the wake of the Maine accident, another form of damage control seems evident, too. As Florida attorneys prepare lawsuits over the drownings, Evergreen no longer answers the phone in Sandpoint, Idaho. Villatoro says he was cut loose. "The company I represented for six years no longer exists," he says. "It combined with another similar company, named Progressive [Forestry Services Inc.], and they have a another representative here in Guatemala, Karla Ponce."

The H2-B program has been very advantageous to paper companies despite the controversy and lawsuits. In 2000, about 52,000 people came under h-2b visas to fill temporary jobs in landscaping, tree planting, housekeeping and other areas, staying for about 10 months.

Other industries would also like to use contract labor, and they've formed a lobbying group in Washington to advocate for more programs. The Essential Worker Immigration Coalition (EWIC) includes 34 employer associations from industries including hotels, health care, construction, janitorial services, meatpacking, amusement parks, retail stores and the U.S. Chamber of Commerce. Its agenda has some elements that immigrant-rights advocates and unions also support, such as a legalization program for undocumented workers and repeal of employer sanctions, which make it illegal for an undocumented worker to hold a job.

But the heart of its agenda are the following two points: "short-term: an effective h-2b-like program," and "long-term: an employment-based visa that could be converted to permanent residence." EWIC co-Chairman John Gay says most industry groups would prefer the second alternative -- creating a whole new visa category for permanent contract workers because the H2-B program is set up for temporary, seasonal employment. "But it's possible that this aspect could be changed," he speculates.

The coalition combines both legalization and guest-worker proposals because it believes that guest-worker expansion alone would never get the needed 60 votes to defeat a filibuster in the U.S. Senate. "Organized labor would go ballistic," Gay says. "That's why we're for the whole enchilada." Before September 11, such a compromise was being discussed in the back rooms of Congress.

In the closing year of the Clinton administration, Silicon Valley employers pushed through expansion of the visa program for H1-B high-tech workers. Another compromise to expand the H2-A program for guest workers in agriculture almost passed, but growers, thinking they might get a better deal, pulled back after George W. Bush was elected in 2000. The most far-reaching proposal, though, was the trade-off between H2-B expansion and legalization. This was the central element of immigration-reform proposals being considered by the Bush administration and pushed by Mexican President Vicente Fox.

Even some labor advocates were willing to consider the option for the sake of winning legalization, so long as several conditions were met. There had to be protections for the right of guest workers to organize, they insisted, labor standards had to be enforced and there had to be a clear path to permanent residency after completing a reasonable number of work hours. Other union leaders seemed doubtful. John Wilhelm, president of the Hotel Employees and Restaurant Employees International Union, who also heads the AFL-CIO's immigration committee, said, "I don't think it's possible to have labor protections for contract workers." Pointing to the fact that even among U.S. citizen workers, one in 20 loses his or her job in the course of union organizing campaigns, he concluded, "To think the law will protect people whose right to stay in the country ends with their job is not living in the real world."

When asked why he didn't protest the excessive deductions from his pay, the Eller & Sons employee responded, "We didn't protest because we couldn't. We were far away from where the company had its headquarters. We'd only deal with a manager who gave us orders and took us to work. And maybe the next year they wouldn't give us the chance to go." Instead, he said, workers just walked away. "They'd leave the company and go elsewhere. Some came back when it was time to go back to Guatemala, and others would just stay for two or three years. They found out it was not worth it to work for that amount of money."

The contractors themselves seemed to acknowledge this was happening. Morales spent weeks working off the books in Mississippi, where he was paid much better -- "about $300 a week, but we were paid in cash." Virgilio Lorenzo, a neighbor of Morales who went to work for Eller & Sons through contractor Ismael Recinos, reported that after three months, "They would let us work elsewhere. I worked in construction in West Palm Beach, Fla., for three months and then returned to Guatemala."

The Bush administration's plans for an expanded Free Trade Area of the Americas and Mexico's Plan Puebla-Panama will put even more economic pressure on the coffee farmers of La Democracia and rural producers throughout Mexico and Central America, driving many to the United States. Gay and the EWIC argue that the migration created must be channeled into a process that gives people some form of legal status. The key question, of course, is what that status should be. "September 11 means we have to look at all these issues through the lens of national security," Gay says. "We live in a pool of migrating people, and we have to control people coming across the border."

In a new Republican-dominated Congress, that is a powerful argument, enough to get proposals for immigration reform off the back burner and onto center stage. But is the argument likely to result in reforms that guarantee the rights of these migrants? Or is the purpose of immigration law to supply labor to industry on terms that the employers find acceptable? If the point is just to control and track immigrants' movements, a new version of the old bracero program serves equally well.

The United Nation's International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families proposes an alternative framework for dealing with migration. It supports the right of family reunification, establishes equality of treatment with citizens of the host country and prohibits collective deportation. Both sending and receiving countries are responsible for protecting migrants. The convention recognizes the global scale and permanence of migration, and it starts by protecting the rights of migrants themselves.

But there is no U.S. legislative alternative to guest workers at present that acknowledges this permanence. No normal visas are available for the coffee farmers at the embassies in Guatemala or Mexico City, where the waiting line for green cards goes back to 1976.

The 14 men who drowned in the north Maine woods, and the 14 coffee farmers from Veracruz who died trying to cross the border illegally in the Sonoran desert the year before, and the 18 immigrants who were asphixiated in a truck this May near Houston are surely symbols of the deadly problems caused by the current system of immigration.

Reforms to that system could give the future migrants who follow them real rights as workers, and the ability to truly belong to communities on both sides of the border. If they do, these deaths may have meaning long after the names of the perished have been forgotten. But it would be a terrible irony if those drowned men were used to justify a new system enshrining the abuses of the old.

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