By Norbert Kinen
As we hack our way through the tangled jungle of state and federal requirements influencing the H-2A certification process, we are more than ready to proclaim that the labor program for providing legal alien agricultural workers is bureaucratic, cumbersome, costly and aggravating.

We at J. Frank Schmidt & Son Co. in Boring, Ore., were warned before entering the program that it wouldn't be easy, but a 1997 Immigration and Naturalization Service audit that eliminated 60 percent of our nursery employees a month before bare-root harvest time gave us few alternatives. Little did we know that our company's struggle to hire and retain a skilled, legal work force would make us the target of national labor activists. Nor could we foresee our current role as grass-roots activists for H-2A and immigration reform legislation. We did not expect to become disillusioned with politicians and agency bureaucrats on the state and federal level who seem bent on bringing the country's agricultural productivity to a grinding halt.

We are convinced that labor is the nursery industry's No. 1 issue, and it is imperative that each one of us across the nation recognize this and work together to achieve reform in our country's labor and immigration policies.

Here, I recount our experience with INS and the various state and federal agencies that influence labor with the hope that you will learn from us, and the knowledge will make your trip through the maze a little easier.

Schmidt's experience

Our company handed over 575 I-9 documents to INS on May 25, 1997. We informed all of our employees immediately. A few left, and during the months that INS took to verify documents and deliver its verdict, we observed nervous behavior among many employees who had been with us for five to nine years. Our own fears about legal status of many skilled, trusted, long-term employees were realized when lists containing the names of 350 improperly documented workers were delivered to us in late September. Among them were crew leaders, foremen, propagators, equipment operators, graders and others whose jobs are critical to maintaining the high quality standards for which our company is known.

INS found no evidence of wrongdoing on our part. We did everything right, but still lost many dedicated, loyal employees who collectively possessed many years of valuable experience. Oregon's vigorous economy and low unemployment rate didn't give us much hope for replacing these employees from the local labor pool. This was proven by an extensive advertising and recruitment campaign overseen by the Oregon Employment Division.

While investigating options, we were told up front by experts who had years of experience in arranging H-2A programs for agricultural employers that "H-2A will work for you as a source of legal workers, but on the other hand, from a practical point of view, it is a failure. You just have to roll up two sleeves and bull your way through it."

We rolled up our sleeves and this is what we got: Between October 1997 and March 1998, we reviewed 2,800 applications and hired 850 people for 350 positions. This pencils out to a 142-percent turnover, a discouragingly high figure that we attribute partly to our Oregon Employment Division's inability to understand the requirements of nursery work and relay that to potential workers. Also at work was the pressure from labor advocates (working from within and outside of OED) on OED's field officers to recruit and recommend unqualified and psychologically unprepared applicants for the harsh conditions of nursery work.

The processes we went through

Since many applicants were being recruited by remote offices, we were forced to depend on telephone interviews and on the judgment of local employment division field officers who did not understand the nature of nursery work and were unable to screen applicants for suitability to the jobs. Three were indigents who needed food and clothing before they could work. Another needed proper identification.

One whose physical limitations prevented him from making the transition from smooth surfaces of the prison where he had resided for the past 14 years to the uneven surfaces of the rough warehouse floor left our employment after only a few days, as did many of the other domestic workers referred to us by our own taxpayer-supported employment service.

Up to 12 percent of the job applicants referred by OED were found during our own application and hiring process to be improperly documented.

With all the turnover, it was a year of training, training, training, as one of our farm managers commented at the end of the season. On a positive note, we hired 45 alien H-2A workers, 35 of whom were highly skilled former employees who didn't require the intensive training needed of the remaining workers hired from the domestic work force. The remaining workers were hired from the domestic work force, primarily from other nurseries in Oregon and Washington. In 1999, our H-2A number increased to 67 alien workers, some of whom had worked for us in past years. Their contribution to our work force is the bright spot - the rest of our experience in dealing with H-2A is negative. Our H-2A application put us under the magnifying glass in a way that neither we nor the labor expert whom we hired to help us through the process could foresee. In his 25 years of experience working with H-2A, ours was the toughest certification he had experienced.

Politics prevail

Our application, the first in Oregon in a decade, was scrutinized by labor advocates across the country who were also in opposition to the H-2A reform bill that was being championed in the 1998 Congress by Oregon Sen. Ron Wyden (a Democrat) and Gordon Smith (a Republican). Perhaps the process won't be so tough for nurseries in other states where this issue is less politically charged and whose state employment departments do not have such an anti-employer leaning as appears to be the case in Oregon.

Shortly after we began using the H-2A program, the monitor advocate of OED accused us of discriminating against employees with families because we offered housing only to employees, a practice in keeping with H-2A regulations. An opinion from the office of Oregon's attorney general stated that the housing provision was not discriminatory. However, this cost us time, staff time and $6,000 in legal fees to rectify.

An annual field audit is required of growers who participate in H-2A programs. In our case, the first audit was conducted by OED representatives. Compliance with regulations such as communication of the certified job, provisions of required tools, housing, transportation and other minute details is required. Our July 1998 field audit by OED was conducted in a very aggressive, overly demanding manner and was consequently contested by J. Frank Schmidt & Son Co. It remained unresolved for one full year due to OED's lack of experience in conducting such an audit and their inability to resolve the disputed facts and interpretation of H-2A regulations.

Issues brought up by OED in the first audit were not resolved until the following year when officials of the U.S. Department of Labor completed the second H-2A certification field audit in 1999. During the course of conducting the second field audit, officials agreed with all of our objections to the OED's audit results from the previous year.

The Oregon Law Center (Legal Services Corp.) issued more than 30 administrative complaints against J. Frank Schmidt & Son Co., the OED and the U.S. Department of Labor. Complaints were brought by eight people and PCUN (Pineros y Campesinos Unidos del Noroeste, an Oregon farm workers union). The complaints are very broad and non-specific in nature. We emphatically deny every one of them. We assert that they have been devised by people with a political agenda and were brought against our company with the intent to harass and deceive and to be used to create a negative public image toward our company and the nursery industry in general.

No cross-examination

Due to the nature of the administrative complaint process, we have at no time to date been able to subject the complainants to cross-examination. Everything they have said is taken as fact and remains in the record.

Furthermore, four of the complaints have been denied by the Equal Employment Opportunity Commission, yet they remain on the record as administrative complaints, and we continue to fight them on multiple fronts. To date, more than a year after they were filed, the administrative complaints have not been resolved.

An identical set of complaints has been filed in yet another forum -- the U.S. Circuit Court. The complaints were filed even though we agreed to mediation that was offered us. Mediation is in progress and the depositions and discovery process is being pursued at the same for the court complaints.

Even though it seems unjust and unfair to cause us to run up more than $250,000 in legal fees to defend ourselves in four separate venues for the same complaints, this avenue for harassment is provided for by H-2A regulations.

What can you do?

So how can other nurseries that are facing labor shortages learn from our experience? Here are several suggestions:

* Even though H-2A can provide workers, it probably should be used only as a last resort when the survival of your company is at stake. In our experience, bureaucratic state and federal employees have no intention of being of service to the employer and are intent on establishing multiple roadblocks to discourage the use of this legal channel for alleviating agricultural labor shortages.

However, expanded use of H-2A is possible and feasible if a grower association is available or is formed to facilitate the process. The same holds true if other employers in your area are reasonably successful with H-2A. In states where the program is established, you can bring the pressure of an entire organization into play, and you may not run into the problems that we experienced as the first employer to use the H-2A program in Oregon in a decade.

* Have a labor crisis survival plan in place. Be ready for action in case the INS becomes active in your area or if the Social Security Administration is sending you friendly letters regarding mismatches of your employees' Social Security numbers. Preparedness includes establishing a close relationship with your local nursery association and the American Nursery & Landscape Association. Both ANLA and the Oregon Association of Nurserymen have provided us with a great deal of good advice, legal counsel, expertise in communicating effectively with our legislators on the state and national level, and insight on the total labor picture.

* If it's an option, join your area H-2A grower association and support it whether or not you intend to use the program. If no grower association exists, talk to other nurseries and farmers about the prospect of forming one. As a preparedness procedure, line up legal counsel and develop a relationship before you have a labor problem.

* Be prepared for the H-2A process by instituting full documentation procedures in your recruiting, hiring and management of personnel. This is a good idea not only in preparation for H-2A but also to protect you as you seek compliance with new and expanded laws relating to employment. If labor tensions are beginning to build for you, visit your state and federal legislators and let them know what is happening to you. Familiarize them with the H-2A program and discuss the kind of laws and services you need from the state and federal governments to assure you of a stable and reliable work force. Be sure they hear from you before they hear about you from others who may not have your best interests at heart.

* Prepare yourself to be a political activist. Be ready to testify at legislative hearings, and learn how to handle telephone interviews with a friendly or hostile press. When the H-2A process is initiated, it's advisable to maintain a daily diary of events.

* Do not be fearful of housing requirements that go along with H-2A compliance. Simple housing of reasonable quality can be attained at reasonable cost. With good rules and management, housing can become an asset to your business and help you attract and retain good employees.

* Avoid certifying a position that doesn't require previous nursery experience. It is best that applicants be required to prove their ability and versatility through previous employment in the nursery industry or in agriculture.

* Be prepared to stage celebrations for minor and major victories on short notice. This will serve to keep your spirits up. Even though there have been a lot of negative experiences for us during the past two years, in retrospect we would not have done it any other way.

Norbert Kinen is senior vice president of J. Frank Schmidt & Son Co., P.O. Box 189, Boring, OR 97009; (800) 825-8202; fax (800) 283-7537.

© 2000 Branch-Smith Publishing