Firm fined in van crash is OK'd to hire pineros

By Tom Knudson -- Bee Staff Writer
Published Thursday, March 9, 2006

Edilberto Morales Luis of Guatemala survived a 2002 van accident that killed 14 forest workers in Maine. A Labor Department official says the contractor's $17,000 fine was the maximum the agency could assess.

• Read more in this series Sacramento Bee file, 2005/Hector Amezcua

Even as the U.S. Department of Labor announced Wednesday it was upholding fines against a farm labor contractor for a van accident that killed 14 forest workers in Maine, documents show that the agency recently certified the same contractor to recruit and hire more of the foreign guest workers.

The seemingly contradictory stance with regard to Idaho-based Evergreen Forestry Services drew sharp criticism from one migrant advocate, who said it highlights a dangerous chasm in communication between the agency's wage and hour division, which enforces labor law, and its employment and training administration, which approves guest worker applications.

"I'm horrified," said Lori Elmer, a migrant forest worker attorney in North Carolina. "Not even 14 dead workers can make a difference."

Labor Department spokesman David James defended the agency actions, even though his agency had moved to revoke the company's license after the September 2002 accident. "Evergreen Forestry Service's appeals to many (agency) decisions have not been exhausted and therefore they have not been banned from dealing with the H2B certification process," James wrote in an e-mail.

The Maine accident occurred when a van carrying 15 Guatemalan and Honduran forest workers 90 miles to their remote job site careened off a bridge and tumbled into the Allagash River, drowning 14. The men, known as pineros, were legally in the United States as foreign guest workers under the H2B program created by Congress and administered by the Labor Department and other agencies.

It was by far the worst of four fatal van accidents that have claimed the lives of 23 forest workers nationwide since 2002 - one of the subjects explored in a November Bee series, "The Pineros: Men of the Pines."

Related Document

Related Document

Click image to see the U.S. Department of Labor decision

After the Maine tragedy, the Labor Department revoked Evergreen's license and fined the company $17,000 - $1,000 for each fatality, $1,000 for the sole survivor and $2,000 for failing to register the van and driver under the Migrant and Seasonal Agricultural Worker Protection Act.

The company's owner, Peter Smith III, appealed - and the case remained under appeal until last week, when the agency's administrative review board upheld the fine.

One Labor Department spokeswoman said Smith should not be able to employ migrant workers regardless because he does not have a farm labor contractor certificate, as required by the federal migrant labor law.

But documents obtained by The Bee show that Smith was certified to hire 120 foreign guest workers last Sept. 28 by the Labor Department's employment and training administration Chicago national processing center. The job entailed spraying herbicides under power lines in Arkansas at $6.40 an hour.

On Nov. 16, the Department of Homeland Security also approved that certification and authorized the U.S. State Department's consular office in Hermosillo, Mexico, to issue the 120 visas. The State Department is reviewing the authorization, and the visas have not yet been issued because of concerns about recent visa and labor issues.

Like other contractors, Smith had hired a firm to recruit south of the border. Evergreen's application for workers doesn't mask the job's ruggedness, which can make recruiting difficult.

Workers "must be able to move/transport 50 lb. pack, extensive walking, variable weather and terrain conditions," the application said. It added: "Tools and safety equipment provided. Worker supplies own weather gear and safety footwear. Employer coordinated housing available at worker's expense."

Smith could not be reached for comment Wednesday despite calls to his business and home.

Before the 2002 van accident, migrant advocates pleaded with the Labor Department to stop granting guest worker certifications to Evergreen, citing the company's track record of labor violations. But the certifications kept coming.

Many of the violations, from failure to pay overtime to poor vehicle maintenance, are detailed in Labor Department inspection reports of job sites in Maine, Texas and other states dating to the early 1990s.

Elmer, the migrant attorney, said she was outraged by last year's certification, in part because Evergreen has been the focus of numerous news stories since the Maine accident.

"If 14 deaths and the media spotlight can't make a difference, that's awful," she said.

In the Maine accident, Smith was charged with failing to provide safe transportation, failing to register the driver under the federal migrant worker law and illegally transporting workers.

In his appeal, Smith contended state speed limit laws did not apply because the accident occurred on private land and that a Labor Department administrative law judge failed to give enough weight to the survivor's testimony that a tire blowout caused the accident.

The administrative review board rejected those arguments and affirmed the $17,000 fine.

The fine itself was the maximum the agency could assess, said Corlis Sellars, the northeast regional administrator for the Labor Department. "This penalty is in no way meant to place a value on the tragic loss of life in this case," Sellars said in a news release.

Jack Scarola, a Florida attorney who represented the families of everyone killed in the accident except the driver - four Guatemalans and nine Hondurans - in a related civil lawsuit, said the fine was a step in the right direction.

"While clearly it is at best a token sanction, it is at least a sanction," he said.

The civil suit against DaimlerChrysler Corp. and Thrifty Rent-A-Car recently settled, but the terms are confidential.

Elmer was more critical. The $17,000 fine "reveals an ignorance of the ultimate purpose of civil money penalties, which is to make breaking the law more expensive than compliance," she wrote in an e-mail, adding that the Labor Department "shouldn't wait until after the deaths occur to enforce safety regulations without compromise."

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