This statement represents the view of Save Family Farming and not necessarily that of any specific farm
The massive fine by Labor & Industries against one of the state’s major fruit growers is based on questionable accusations and embraces the discredited “Roman” enforcement strategy. It also diminishes the effective work of farmers in protecting farm workers during COVID-19.
The State Department of Labor & Industries’ $2 million fine against Gebbers Farms announced December 21 is one of the largest in state history. It’s based on strongly worded accusations
against the farm. Such an extreme fine and harsh accusations require solid proof. But already one crucial accusation has been thrown out by a judge and most others are likely to be shown to be false.
Farmers and farm leaders are concerned that this action by the state agency leaves a false impression about the effective work Washington’s farmers have done in protecting their valuable
employees. They see it representing “enforcement by crucifixion,” an approach advocated by an EPA Regional Administrator in 2010.
The enforcement by crucifixion strategy
The Romans may have created the brutal enforcement strategy, but other governments have sometimes employed it as well. As an example, EPA Region 6 Administrator Al Armendariz in 2010 explained he was following this Roman method of pacification. For the Romans this meant going into a village and crucifying the first five people they found. He said following that “that town was really easy to manage for the next several years.” As applied to the EPA enforcement, he said, “You find people who are not complying with the law and you hit them as hard as you can.” The administrator’s comments were captured on video and became a major embarrassment to the EPA.
This embarrassment does not appear to deter the Department of Labor & Industries under Director Joel Sacks. A previous example occurred in 2018. The Department accused a northwest Washington berry farm of several rest and meal break violations. Unlike other businesses, farms must provide rest and meal breaks at very specific intervals. In the case of the farm most of the late breaks were late by just a few minutes – but they resulted in a $149,000 fine against the farm. Can you imagine the state doing this to Starbucks employees, or the employees of law firms jumping on these cases?
When asked why such a huge fine was assessed for relatively minor violations, the agency cited “publicity” according to press reports. The farm had been targeted by farm labor activists and falsely accused of mistreating workers. The press picked up on the false accusations and that prompted the agency to level an historic fine. No doubt the publicity again generated by farm labor activists and again involving false accusations prompted the massive fine against Gebbers.
Sadly, the agency’s action leaves an inaccurate impression about the effectiveness of farmers to protect their farm employees during the pandemic. The strong protective measures, mostly put in place prior to state rules, resulted in lower infection rates for farm workers than non-farm workers living in these communities. This was reported by the Seattle Times in a July 22 report by Hal Bernton titled: “In Yakima County, as cases soar, community spread increasingly drives the coronavirus pandemic.”
Proactive work by farmers to protect employees
Gebbers Farms was one of many who were very proactive in protecting their workers. In May, when the severity of the pandemic was becoming clear and facing an influx of domestic and guest workers, Gebbers hired a professional epidemiologist with impeccable credentials to prepare a detailed worker safety plan. That plan included “cohorts,” or isolated worker groups, of 42 employees.
A July 18 letter to Gebbers from Dr. John McCarthy of the Okanogan County Public Health Department stated:
“Community Health Director for Okanogan County Public Health, has informed me that Gebbers Farms’ COVID-19 protocols and implementation of those protocols have been impeccable, and that Gebbers Farms has fostered a great working relationship with Okanogan County Public Health. She has also informed me that Gebbers Farms began implementing COVID-19 protocols before any other growers in the Okanogan County area. I commend Gebbers Farms in taking its early and diligent action and in implementing stringent COVID-19 protocols.”
The farm’s efforts resulted in an infection rate among their employees far lower than the surrounding community or national average. All employees were tested 99.3 percent were COVID free. That 0.7% infection rate compares with about 5% nationally at the time — nearly 10 times better than the average. The effectiveness of Gebbers’ protective measures surprised state agency leaders, according to a story in Wenatchee World.
State accusations disputed by health authorities
In the fine, the Department cited the loss of two Gebbers’ guest worker employees to COVID. Farm labor activists had been trying to stop all 20,000 guest workers from harvesting Washington’s crops and saw in these tragic losses an opportunity to advance their pro-union advocacy. The misinformation promoted by these activists prompted major media attention.
With national media covering the employee deaths along with reckless claims by activists, the State Department of Labor & Industries decided to join activists in claiming the farm was not complying with the new state rules.
The media coverage and accusations against the farm by activists and the Department led local health officials to take the unusual step of trying to set the record straight in the public. They published an opinion piece in a local newspaper requesting that those spreading false information stop. The title was “Gebbers Farms Cleared of COVID-19 Outbreak.”
“Defiant” non-compliance accusations thrown out by judge
The press release by Labor & Industries on December 21 stated that the farm was not compliant with the rules and openly defiant. Gebbers Farms vigorously rejects these accusations and you can hear their detailed explanation here. One issue was the “failure” to report the death of one of their workers as required by state law. But Gebbers states the worker was in the hospital and was not informed of the death until several days as the hospital was following federal privacy laws. Another major issue was whether or not the farm was complying with the emergency rules the state rushed into place after they allowed a California union leader to “draft” them – in the words of Governor Inslee. The farm says they were following the protocols established by their expert epidemiologist and had applied for a variance of the state rules, which the state allowed for if the state approved. But the farm claims the state refused or failed to even review the requested variance for six months – then, when the “publicity” hit, declared the farm was not in compliance.
On July 27 that state issued a restraining order against the farm, but by then, Gebbers claims, the farm was in compliance with the worker cohort level demanded by the state. A recent ruling by a judge has already thrown out that accusation by the state.
Refusing or failing to follow its own rules in reviewing a requested variance is one major issue here – and if proven, an example of state hypocrisy. But another is the way in which state rules put farm workers at risk, even while farmers were desperately trying to comply with emergency rules that in some cases seemed intended to make them fail. While other at risk groups such as
nursing homes were allowed to “lock down” and control who had access to their residents, farmers were not allowed that control over worker housing. State rules specifically required that politicians, community organizers, union activists, lawyers and others could be allowed into the other-wise strictly controlled worker housing. Imagine if such allowances were made for nursing home residents or the homes of other essential workers such as health care employees.
The state has damaged the reputation of all Washington farms
Gebbers has stated they will appeal the $2 million fine. If their version of the story is accurate, it is likely that the massive fine will be reduced or even eliminated. A judge in Whatcom County cut the state’s $149,650 fine against the berry farm in half. But, the damage to the long standing reputation of this family farm will take a long time to recover. The impression that the state agency leaders have left with the public is of farmers willfully ignoring and even defying state law and worse, failing to protect their valued employees. The state’s eager politicization of the issue of farm worker safety has caused long lasting damage to the state’s farmers–at the very time they proved how effective they could be in protecting their employees against the virus.
There is much to admire about Roman civilization, but pacification by crucifixion should not be emulated – least of all by a state agency.
