The band of land between the high steppes of the Cascade ...

T h e
E l e c t r o n i c
H a l l w ay ®
Case Teaching Resources FROM THE EVANS SCHOOL OF PUBLIC AFFAIRS
Box 353060 · University of Washington · Seattle WA 98195-3060 www.hallway.org
GROWING RESENTMENT (A)
Regulating Farm Worker Safety in Washington State Orchards
The band of land between the high steppes of the Cascade Mountain foothills and the
rolling desert of eastern Washington is divided by the waters of the deep Columbia River
gorge, which provides for a robust agricultural economy. Deciduous fruit tree farms
abound between the Canadian and Oregon borders, leading the United States in
production of apples, cherries, pears and apricots 1 . Apples dominate the tree fruit
industry, accounting for nearly 180,000 acres 2 of farmland and 18.8% of the state’s
agricultural revenues. 3 During the fall harvest season, apple orchards employ 45,000
pickers 4 and cherry orchards employ 16,000, most of whom are Latino migrant workers. 5
During the harvest season, hot westerly winds rustle the leaves on branches laden with
fruit. Plucking apples from these limbs requires standing on ten to twelve foot tall ladders
and balancing a bag of apples that can weigh as much as 35 pounds when it is full.
Throughout the day, workers maneuver their ladders across the uneven terrain of the
orchards - setting and resetting, picking, filling, and emptying their bags.
Because the working days are long, in an environment which is subject to changing
weather and terrain, it is not uncommon for workers to suffer both minor and significant
injuries. Variable winds produce scratches and eye injuries due to blowing leaves, limbs
and particles. Uneven terrain gives way to sprained ankles and strained knees. Ladders
can shift under the weight of a worker carrying a heavy picking bag, and managing an
unwieldy bag while descending the steps can cause falls that are likely to result in serious
1 Export Statistics, Washington State Department of Agriculture, 2005.
2 Washington State Apple Industry Overview, United Farm Workers of America, 2001
3 Sources of Agricultural Receipts, Bureau of Economic Analysis, 2002.
4 “Labor Branches Out”, Online Focus, www.pbs.org/newshour, November 19, 1997.
5 95% according toAshton, Linda, Associated Press Writer, National Farmer’s Union, www.nfu.ca, August
9, 2001. 70% of all agricultural workers are foreign born, 99% of whom are Latino, according to the U.S.
Department of Labor, National Agricultural Workers Survey of the period 1994 and 1995.
This case and teaching note has been provided for subscribers of the Electronic Hallway with the express
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Professor at the Daniel J. Evans Graduate School of Public Affairs at the University of Washington. The
case author and sponsor thank Professor Peter May of the UW Political Science Department, Associate
Professor Marieka Klawitter and Assistant Professor Mark Long of the Daniel J. Evans School of Public
Affairs, and industry and government agency representatives for their contributions to this case. Funding for
this case was provided by the William D. Ruckelshaus Center. This case is prepared for classroom
discussion only.
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Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
injuries to a worker. Even workplace violence accounts for an occasional injury, or in
rare cases, a fatality.
In Washington State, worker health and safety is regulated by the Department of Labor
and Industries (L&I). The Region Five office, located in Yakima, oversees the central
portion of the state. After the fall harvest in 1998, Regional Administrator Monty
Paradis, reviewed the worker’s compensation claims filed for the previous quarter and
year to date. Injuries related to production of deciduous tree fruit were nearly double the
next highest industry in Region Five. Though it was not inconsistent for orchard workers
to comprise a considerable portion of the claims since that category of work dominated
the local economy, the summary data indicated that injuries among orchard workers had
increased 10% over the previous year.
These injuries were causing pain and suffering for a population of primarily migrant
workers, and in the case of serious injuries, lost work days and wages. The living and
working conditions for these workers were increasingly a focus of attention among
worker advocates such as the United Farm Workers and Columbia Legal Services. Their
concerns gained the attention of the local media as well as domestic and international
consumers concerned about “fair trade” products. Amidst a languishing international
economy and export market, fruit growers questioned increasingly high industrial
insurance premiums and believed that increasing regulatory pressures compromised their
ability to compete in a global market.
Paradis had the uneasy sense that growing resentment and increased polarization between
the differing perspectives of farmers and worker advocates would make it difficult for
him to fulfill his mandate to improve the safety and health of orchard workers. Even
though the Department of Labor and Industries shared with fruit growers and farm
workers similar goals - if not reasons - for reducing injuries, Paradis knew he would face
significant challenges to any approach he might take.
Past reputation and future distrust
Paradis carefully reviewed each of the freshly printed reports stacked neatly in an open
file folder on his otherwise cleared desk. As he looked through the frequency analyses,
he realized both the potential power of having specific injury data as well its potential
flaws, and the credibility issues he would need to overcome. A recent situation with hop
growers personified underlying past problems within the agency, to which Paradis
accounted a lack of specific data as the root of the trouble. When Paradis began his
tenure the Region Five office in 1996, the agency was engaged in a safety initiative
intended to reduce injury rates within the hops industry through a rigorous inspection
schedule.
Because the hops industry appears to be inherently dangerous for workers, policies and
inspection protocols were developed based on some assumptions rather than on a detailed
data analysis. Hops, an essential ingredient in beer, grow atop tall, slender poles and
wend along thick twines connecting the poles. The harvesting machines which thresh the
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Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
vines to separate the hops in the processing plant are two stories tall. The threshing is
done primarily by “whirligigs” on the harvesters, which spin at over one hundred miles
per hour. When reports showed an average of 600 worker injuries per year, it seemed a
fair assumption for L&I to blame the harvesting machines with unprotected whirligigs
and pulleys although hop farmers disagreed.
Although Washington State accounts for 75% of all hops grown in the U.S., most
production takes place in only two counties, which are within close proximity to the city
of Yakima. Fewer than 100 growers cultivate hops, as opposed to over 3,500 6 apple
growers distributed over a wide area. During the prior three years the Department of
Labor and Industries safety enforcement staff had inspected about 75 of the region’s 98
hop growers, and 52 out of 60 harvesting machines. Yet there had been no reduction in
reported injuries. After a closer look at a more detailed data set, much to his chagrin,
Paradis found that most injuries were actually caused by grinding machines in farm
shops, and on tractors. Only one injury had actually been caused by a harvesting
machine.
Although many of the hop growers had argued that harvesting machines were not causing
injuries prior to the enforcement initiative, they had spent a great deal of time, effort and
money complying with safety regulations and L&I inspections related to harvesting
machines. Hop growers, many of whom were also tree fruit growers, still resented the
enforcement action and lack of results. The events of the past three years seemed to
reinforce the tendency of farmers to consider the government as the cause of problems,
not as a potential problem solver.
In order to address the injury rates within the orchard industry and avoid the kind of
credibility and effectiveness problems the agency had encountered with the hop growers,
Paradis concluded that he needed more specific data than the general reports previously
generated in the regional office. A query to the L&I Department of Information Services
main frame database in the Olympia office would normally cost his office $10,000 to
$12,000 for a report that would allow him to analyze which injuries and causes of injury
were most common and which were most costly. Only with this kind of specificity, he
thought, could he develop policies and implementation strategies that would truly target
the underlying problems or work practices that were causing injuries. In the past,
generating these kinds of reports for every potential enforcement action was cost
prohibitive. The resulting lack of quality data had restricted his ability to target resources
and policies toward the true problem, as he discovered during his interaction with the hop
growers.
Paradis hoped that a new database system recently acquired by the regional office would
allow for more data driven policy development and related enforcement activities, which
would also mend some of the damaged credibility and relationships harmed by the hop
initiative. Paradis had just hired a full time analyst to generate the reports he held in his
hand using the new system (see Attachment A). This query of the new system in early
1999, which specifically focused on the tree fruit industry for the prior three years,
6 An Apple Bonanza Goes Sour”, Seattle Post-Intelligencer, May 14, 1997.
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Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
produced results that generally corroborated the more general earlier reports which
indicated an increasing number of injuries and dollar amount of claims paid.
However, the reports Paradis received from the new system also detailed the sources or
causes of injury, the part of the body injured, time of day and county in which the injury
occurred, employer size, gender and length of work experience. Compensable injuries
required payment for lost wages to a worker who had an injury severe enough to
necessitate an absence from work. The reports further broke down compensable versus
non-compensable injuries, and even causes of death for thirteen tragic workplace
accidents throughout the three - year period. (See the Attachment A)
Regulatory Authority
The 1971 Congressional Act which established the Occupational Health and Safety
Administration as a federal oversight agency allowed states the option of developing their
own worker health and safety enforcement agencies. In 1973, the Washington state
legislature passed the Washington Industrial Health and Safety Act (WISHA), and in
1976 became the first of 21 states to receive approval and funding to operate a state run
safety and health plan. The Washington State Department of Labor and Industries
administers the Act, in addition to managing the state Workers Compensation Program,
which provides industrial insurance coverage for 1.9 million workers statewide. 7
Insurance premiums for worker’s compensation and medical coverage for work related
injuries are paid in large part by the state’s 166,000 employers, although employers can
allocate a small portion of the premium to their employees though payroll deduction.
Insurance premiums are based primarily on industry and job classifications and historical
injury rates for a particular industry and company. However, premiums are also affected
by increases in medical care costs, fluctuations in financial markets (as a portion of the
premiums are invested in stocks) and court rulings that dictate how workers’ wages and
benefits are calculated for compensable claims. Individual employers are eligible for
discounts based on their company’s “experience rating” or injury rate in the past three of
four years – larger employers are eligible for up to a 40% rate reduction, while smaller
employers are eligible for up to 10%. Since rate setting involves complex actuarial
calculations, this task is completed in the L&I central office in Olympia, not within the
regional offices.
The Washington Industrial Health and Safety Act also set forth a mandate for the
Department of Labor and Industries to “provide for the frequency, method and manner of
making inspections of workplaces without advance notice”. 8 An employee complaint or
serious injury could also trigger an inspection. In addition to inspection and enforcement
activities, L&I offers a consultative service, wherein a business can request an inspection
without the fear of fines and penalties. A WISHA consultant conducts the visit just as an
inspector would, leaving behind a checklist and advice about needed improvements.
Serious risks to worker safety must be corrected, but no penalties apply if the needed
7 WISHA Frequently Asked Questions, www.lni.gov.
8 WISHA Interim Operations Manual, www.lni.gov, June 1, 1998.
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Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
changes are made in a timely manner as outlined in the consultation findings. Risk
Management, another department within the agency, assists employers on a broader level.
These consultants conduct general seminars, usually on an industry wide basis, in an
effort to provide employers information about managing claims, safety manuals and
meetings, designing safe workplaces, and successful hiring practices that can prevent
companies from “hiring their next claim.”
The Region Five L&I office has a staff of five WISHA Consultants and two Risk
Management Consultants. Although fruit growers often requested Risk Management
presentations at association meetings, they rarely took advantage of WISHA consultative
services. Since their primary interactions with L&I consisted of inspections and
enforcement actions, many growers were reluctant to initiate a relationship - figuring it
was a wise idea just to stay off the agency’s radar screen. In fact, it wasn’t just farmers in
Washington State who held a deeply ingrained distrust and dread of interaction with
OSHA agencies. In 1994, federal lawmakers resolved to legislate reforms initiated by
then OSHA administrator Joe Dear, which would fundamentally reinvent the way OSHA
conducted business. With the passage of a landmark bill in 1996, OSHA’s goal was to
“apply the reinvention philosophies of partnership, cooperation, common sense and
customer service.” 9
These changes at the federal level were reflected in the tone of the annual Performance
Agreement signed between OSHA and the Department of Labor and Industries. While
the annual agreements typically outlined expected statewide activity levels such as the
number of inspections, number of serious hazards cited, and dollar amounts of fines and
penalties levied, the agreement signed in December of 1997, also called for “… closer
coordination between enforcement and consultation targeting efforts.” 10 In addition, a
new provision mandated that employers who had received a voluntary consultation
within the past twelve months, should receive lower priority on targeted inspection lists
and the agency may even elect to delay targeted inspections if an employer agreed to
comply with the findings of a WISHA consultant.
However, these sweeping changes did not preclude L&I inspectors from more traditional
enforcement activities, such as levying fines for violations that might compromise worker
health and safety. For violations that do not appear to cause imminent danger to workers,
an inspector can write a “general citation” which is usually not accompanied by a fine,
but must be corrected. “Serious” violations are those that that are considered likely to
cause serious injury or death, and may include a fine as high as $7,000, although most
average $1,200 per incident. “Willful” violations occur when an employer knowingly
commits a violation and makes no effort to correct it. In such a case, it is first classified
as a serious violation, with a penalty up to ten times as high – a maximum of $70,000 per
incident.
In central Washington, ten inspectors cover 27,000 square miles of farmland, conducting
mandated unscheduled inspections. Some growers expressed concern that inspections
9 “The New OSHA”, Government Executive, May 1997, Vol 29, Iss 5, Pg. 34.
10 WISHA Interim Operations Manual, www.lni.gov, June 1, 1998.
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Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
were neither random, nor due to a complaint. Farms located on well traveled roads
seemed to have a disproportionate number of inspections. One such grower reported 33
inspections in a relatively short period of time, although no citations were issued. Due
mainly in part to the lay of the land, smaller farmers generally populate the more
mountainous northern region north of Interstate 90, and larger corporate farms are
common on the gentle southern slopes of the Columbia basin. Smaller farmers believe
they are challenged by their size and number of employees to keep abreast of the
workplace safety requirements and standards set forth by L&I. Whether large or small,
corporate or family owned, most growers bristle at the approach of an unanticipated
inspector. One farmer stated, “Some of the inspectors really have a gun and badge
attitude that just starts the visit off with a confrontational tone.”
The trouble with tree fruit
Paradis set aside the reports and considered what he knew of the current agricultural
economy and the tree fruit industry in particular. He noted that recent trade imbalances
and an industry downturn occurred roughly during the same time period that worker
injuries markedly increased, and wondered if there might be a relationship. In the years
between 1985 and 1995 the tree fruit industry had blossomed in part due to successful
trade negotiations such as the North American Free Trade Agreement (NAFTA). During
this time, production increased markedly and peaked in 1998 with an annual fresh apple
harvest of about 96 million cartons 11 equaling $700 million in gross receipts to farmers. 12
Washington apples supplied 65 percent of the U.S. fresh market 13 and exported about 30
to 35 percent of the total harvest. 14
During that prosperous decade between 1985 and 1995, apple exports increased nearly
500 percent, 15 culminating with the ceremonious unveiling of Red and Golden Delicious
apples in a Tokyo supermarket. Industry trade groups had coveted the lucrative Japanese
market for years, and in 1995, a total of 500,000 cartons 16 were finally exported to Japan
under a new trade agreement. Growers also received a healthy $120 per ton 17 for lower
grade juice apples in 1995. The pulse of the central Washington economy quickened, and
local coffee shops where growers gathered for breakfast hummed with the promise of
future prosperity.
By 1996 however, apple exporters were caught in a quagmire of quarantine and
phytosanitary regulations enacted by the Japanese government, significantly increasing
the cost of exported apples. Japan’s economy increasingly showed signs of weakness,
and the yen fell rapidly against the dollar, virtually eliminating the U.S. competitive price
advantage. Finally, Japanese consumers, like their American counterparts, increasingly
preferred more exotic varieties of apples such as Fuji, Braeburn, Jonagold, and Gala over
11 One carton = 42 lb.
12 Apple Fact Sheet, Northwest Horticultural Council, January, 1, 2005.
13 Apple Fact Sheet, Northwest Horticultural Council, January, 1, 2005
14 Washington State Apple Industry Overview, United Farm Workers of America, 2001.
15 “Labor Branches Out”, Online Focus, www.pbs.org/newshour, November 19, 1997.
16 “An Apple Bonanza Goes Sour”, Seattle Post-Intelligencer, May 14, 1997.
17 “Chinese Apple Juice Concentrate Slapped with Tariff”, Seattle Times, April 8, 2000.
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Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
Red and Golden Delicious. Under the current trade agreement however, these exotic
varieties were not approved for importation in Japan. In 1996, Japanese exports dropped
to 55,000 cartons, and in 1997, fewer than 15,000 cartons were shipped, effectively
eliminating the viability of the Japanese market. 18
Chinese apple juice exporters began their foray into the U.S. market in the late 1990’s.
Between 1995 and 1998, imports of apple juice concentrate increased 1200 percent from
3,000 metric tons to 40,000 metric tons. 19 The price paid to Washington growers for
juice apples dropped from $120 per ton to $10 per ton. 20 At that price, wages paid to
harvest the fruit would exceed the market price and many growers simply left their apples
in the orchards to rot. The only bright spot on an otherwise dim horizon was the Mexican
market, which became the leading market in 1997 - importing 4.5 million cartons. 21
Curbing the optimism for growth in the Mexican market however, the Mexican
government subsequently placed 101% tariff on Red and Golden Delicious apples,
accusing U.S. producers of “dumping” or unfairly selling apples in the Mexican market at
costs below market prices in the U.S. By early 1999 the Washington apple industry
languished in an environment of cheap exports and a weakening Asian economy.
A Nascent Labor Movement
Despite a sharp decline in the late 1990’s a decade of prosperity in the apple industry had
prompted farm laborers to question why wages had remained stagnant at best. Citing a
1995 report by the Washington State Employment Security Department, United Farm
Workers (UFW) director Lupe Gamboa stated the average annual wage for orchard
workers hovered near $6,000 per year. 22 However, industry representatives noted a
report by the Employment Security Department, which indicated that most workers
obtain employment elsewhere during the off-season, yielding an annual income of over
$12,000. 23 Workers were historically paid for “piece work”, or by the number of apples
picked, although many growers were in the process of converting to a straight hourly
wage.
During a rally at the Pike Place Market in Seattle, Lupe Gamboa, an attorney and local
leader for the United Farm Workers (UFW) proclaimed, “The people that produced this
beautiful fruit are now engaged in a desperate labor struggle to try to keep wage rollbacks
from taking effect.” 24 Farm workers expressed concern that wages were being reduced
by as much as 50% with a move from piece rate to hourly compensation of $6.50. 25 Yet
industry representatives pointed to a 1999 report by the Washington Employment
Security Department, which showed an average hourly increase from $7.41 in 1994 to
18
“An Apple Bonanza Goes Sour”, Seattle Post-Intelligencer, May 14, 1997.
19
“Chinese Apple Juice Concentrate Slapped with Tariff”, Seattle Times, April 8, 2000.
20
“Chinese Apple Juice Concentrate Slapped with Tariff”, Seattle Times, April 8, 2000.
21
“An Apple Bonanza Goes Sour”, Seattle Post-Intelligencer, May 14, 1997.
22
“Labor Branches Out”, Online Focus, www.pbs.org/newshour, November 19, 1997.
23
Agricultural Workforce in Washington State, 2004 Report by the Washington State Employment
Security Department, p. 44.
24
“Washington workers seek to reap more fruit for their labors”, Los Angeles Times, September 6, 2000.
25
“Washington workers seek to reap more fruit for their labors”, Los Angeles Times, September 6, 2000.
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Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
$8.20 in 1999. 26 Although worker advocates decried the move to hourly compensation,
industry reps claimed that changes in the wage structure were in response to pressure
from organized labor.
Some workers had blamed piece work compensation for the high injury rate, since they
felt compelled to work quickly and without breaks. However, the majority of workers
claimed that hourly compensation was essentially a wage reduction, as a good picker
could earn $12 per hour under the previous pay schedule. John Wines of the
Employment Security Department said, “The growers are between a rock and a hard spot
- the rock being the minimum wage and the hard spot being the general economy and
market conditions.” 27
During the harvest season, the population of some small Eastern Washington towns
doubles in size 28 with an influx of seasonal 29 and migrant workers. During a 1998
interview, 30 one small town mayor admitted that the tax base and infrastructure in her
town were not conducive to accommodating workers with temporary affordable housing.
In 1996, a Department of Health Report stated that 37,000 of the state’s 62,300 migrant
workers lacked suitable shelter. 31 Yet, tensions over living conditions for farm workers
heightened in 1997 and 1998 as the Department of Health granted a “provisional
licensing program,” which allowed for temporary “tent camps” on employer’s land if the
employer agreed to provide showers, drinking and bathing water and cooking facilities.
This decision followed a series of work group meetings in which advocacy, industry and
social services representatives investigated the temporary occupancy housing shortage
and health issues for workers related to camping on river banks and other public lands.
Although employers were not required to provide temporary housing, many growers had
done so since the 1960’s and wished to continue to provide these living accommodations.
Labor advocates viewed the provisional licensing program as a means for granting
exemptions from building codes and OSHA temporary housing standards for growers of
short season crops. 32 Worker advocates filed a claim with OSHA, stating that the
Washington State Department of Labor and Industries was “not enforcing standards for
temporary housing in labor camps.” 33 Advocates argued that the provisional licensing
agreement effectively allowed farm workers to live in second class housing and prompted
pressure from OSHA. Governor Locke vetoed the decision by the Department of Health
to allow special provisions for temporary farm worker housing, and growers were
compelled to turn away workers who wished to camp on their land. As a result, workers
crowded into camp trailers and mobile homes, camped in their cars or pitched tents on
26
“Apple Pickers Strike for Higher Wages,” Good Fruit Grower, October, 2000.
27
“Washington workers seek to reap more fruit for their labors”, Los Angeles Times, September 6, 2000.
28
Population increases from 2,000 to 5,000. Online Newshour, www.pbs.org/newshour, December 25,
1998.
29
Workers are considered seasonal if they work 150 days or less per year. Agricultural Workforce in
Washington State, 2004 Report by the Washington State Employment Security Department, p. 19.
30
Online Newshour, www.pbs.org/newshour, December 25, 1998.
31
Rural Migration News, http://migration.ucdavis.edu.
32
Rural Migration News, http://migration.ucdavis.edu.
33
Good Fruit Grower, February 15, 1996
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publicly owned property. Since many of the workers were undocumented, illegal
immigrants from Mexico, Central and South America, they felt powerless to complain
about deteriorating living conditions.
Sensing a growing resentment for the living and working conditions of farm workers,
Lupe Gamboa resolved to take the case to the court of public opinion. Although orchard
workers were not formally represented by the UFW, Gamboa publicly lamented the
wages and living conditions comparable to those in a third world country. From Pike
Place market in Seattle to Mexico City, he organized rallies and lobbied for boycotts on
Washington apples. In a marketplace where consumers have increasing access to
information on the internet, concerns about treatment of workers and environmental
impacts of the products they buy seemed destined to become more influential. A USDA
Trade report warned, “A significant, sustained disruption of U.S. sales to Mexico would
be expected to generate a serious economic handicap throughout the apple and pear
industry.” 34 Orchard workers had been without collective bargaining rights since the
1930’s and Lupe Gamboa sensed the time was right to initiate a UFW drive to organize
orchard workers.
In May of 1998, four Mexican labor unions filed a complaint on behalf of their American
counterparts under the provisions of the North American Free Trade Agreement
(NAFTA). Labor unions had largely opposed NAFTA during the initial negotiations in
the early 1990’s, fearing the loss of U.S. jobs. As a result of lobbying by U.S. labor
interests, an additional NAFTA provision compelled member countries to enforce their
own labor laws. The complaint presented to the Mexican Labor Department charged that
migrant workers who worked in Washington State apple orchards had been denied their
rights under the trade agreement. It specifically charged the United States with failing to
enforce worker health and safety standards, and protection of workers’ rights to
organize. 35 Previous complaints had been filed against Mexican industries, but objections
to working conditions in the U.S. were relatively unprecedented. If upheld, the complaint
could result in a loss of NAFTA tariff benefits and could even result in fines to the U.S.
government. Lupe Gamboa said of the complaint, “…. it’s a beginning. The pressure of
public opinion sometimes can work when the law is weak.” 36
In the interest of business
When asked about the state of orchard worker safety and health and the complaint filed
under NAFTTA provisions, Mike Gempler of the Washington Grower’s League said,
“Our association and our industry do not approve of people who treat employees with
disrespect.” The Washington Grower’s League is a nonprofit organization which
concentrates specifically on labor issues within the agricultural industry. The League
offers classes in safety and employment law, and provides legal and translation services
34 Washington State Apple Industry Overview, United Farm Workers of America, 2001
35 “U.S. Unions Use NAFTA To Help Workers”, Ken Guggenheim, Associated Press Writer,
www.hartford-hwp.com, May 28, 1998.
36 “U.S. Unions Use NAFTA To Help Workers”, Ken Guggenheim, Associated Press Writer,
www.hartford-hwp.com, May 28, 1998.
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for its members. Other industry associations also provide services which inherently
influence business practices among growers throughout the orchard industry. The
Washington State Fruit Commission publishes the Good Fruit Grower, a bi-monthly
magazine which discusses topics ranging from price and export trends to labor issues and
editorials by farm workers. In Wenatchee, the farm cooperative Washington Grower’s
Clearinghouse Association provides input and educational information to various state
agencies on tree fruit related issues, and also advocates growers’ interests in the
regulatory and legislative arena.
The Washington State Farm Bureau represents agricultural interests through political
action committees, and provides services such as the “Retro Safety Program.” In 1982,
the Department of Labor and Industries developed the “Retrospective State Industrial
Insurance Plan,” a vehicle for public–private partnerships wherein small employers and
their associations could join an industrial insurance rate pool with other employers in a
similar industry, giving smaller employers the same access to higher discount rates on
industrial insurance premiums as their larger counterparts. Using the retro program,
participating businesses within that category could benefit by joining a larger collective
pool, which could receive a refund if the entire pool had fewer than the projected claims
n a given year. Likewise, if claims exceeded the expected amount, an assessment would
be made to the organization’s rate pool over and above the industrial insurance premiums
already paid.
Because this retrospective rating program provides significant financial incentives to
reduce worker injuries, the Farm Bureau provides risk assessment consultations and
educational safety seminars for their members, and conducts voluntary inspections of
their members participating in the Retro program. “We work hard to help growers reduce
injury rates,” stated Jeff Lutz, a Farm Bureau safety representative. However, he also
acknowledged that a range of practices and tools are needed to effectively reduce injuries.
Yet when asked if he would consider working in partnership with L&I to reduce farm
worker injuries in orchards, Lutz seemed reluctant to work closely with the Department
of Labor and Industries, in part due to past interactions such as the hop initiative, and the
degree of mistrust that developed as a result.
Despite the incentives and resources, ensuring compliance with safety regulations can
prove challenging for orchard owners and industry representatives. For example,
workers do not like to wear protective eye goggles, as they create visual filed distortions
and fog up on chilly winter mornings. Because safety goggles are so often found in
workers back pockets, farmers contend that they can only provide safety equipment, not
compel workers to use it. Industry representatives pointed to voluntary improvements in
safety precautions, such as the use of shorter, lighter ladders made of aluminum instead
of wood, which they believed resulted in fewer injuries. Further, growers expressed
concern that language barriers interfere with safety instructions, as many of their workers
do not speak English.
Fruit growers believed they should not be held accountable for workers who neglect to
wear protective gear provided to them, and bristled when L&I inspectors entered private
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property to observe workers for the purpose of writing citations and levying fines, since
citations can increase the dollar amount of a penalty levied for a new violation. Even
farm worker advocates noted that random surprise inspections do not effectively change
behavior on the part of the worker or employer. In the late 1990’s farmers began to
express concerns about intrusions onto private property by L&I inspectors. The
Washington State Farm Bureau began to contemplate a lawsuit that would challenge the
constitutional right of an inspector to enter private property without probable cause, such
as an accident report or a potential violation observed while driving by on a public roads
and notice to the owner or immediate onsite supervisor that they were entering the
property.
Assessing the situation
As market prices and other pressures squeezed orchard owners in the late 1990’s, the
apple industry succumbed to an inevitable downturn and time of transition. As demand
for Washington’s best known Golden and Red Delicious apples declined, many growers
replaced traditional trees with newer varieties at a cost of approximately $15,000 per
acre. Between 1998 and 1999, apple production decreased 15%, from 96 million cartons
to 81 million cartons. “For Sale” signs dotted orchards like a common weed, and
branches that were once laden with fruit lay in gnarled piles destined for a bonfire. It was
clear to Paradis, given the current market conditions and state of the agricultural
economy, that growers lacked the capacity to make significant financial investments in
safety programs or initiatives. As one observer stated, “They are like farmers
everywhere, they live by the seasons and inevitably owe everything they’ve got to the
bank.” 37
The market conditions served to further polarize players in the apple industry. With the
number of injuries on the rise, accompanied by deteriorating living and working
conditions, workers, consumer groups and advocacy organizations were increasingly
energized to effect change within the industry. Just as farm laborers turned to unions and
advocates, tree fruit growers found strength from industry organizations – neither held a
natural proclivity to ally with the Department of Labor and Industries as a means for
resolving safety and sustainability concerns.
Monty Paradis considered the potential power of the various interest groups and the
current challenges presented by a faltering economy. He wondered how he could
overcome the challenges he faced in fulfilling his legal and moral obligations to reduce
farm worker injuries in the orchards that populated his region. A student of appropriate
risk based approaches to regulation, Paradis hoped that both growers and advocates
would eventually come to him with their concerns and problems, and work in partnership
with his agency to solve problems of worker safety within the orchards. But from his
current vantage point, Paradis thought the gap between mutual cooperation and the
present adversarial relationship seemed as wide as the mighty Columbia River.
37 “Farm Workers Win!” Eat the State, www.eatthestate.org, September 27, 2000.
11

Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
Attachment A
INJURED BODY PART - ALL CLAIMS 1996, 1997, 1998
Injured Body Part Frequency Valid
Percent
Valid Eye(s) 1,208 16.7 16.7
Back 1,013 14.0 30.7
Multiple 652 9.0 39.7
Finger(s) 523 7.2 47.0
Ankle 364 5.0 52.0
Knee 319 4.4 56.4
Hand 267 3.7 60.1
Foot 249 3.4 63.5
Shoulder 247 3.4 66.9
Chest 242 3.3 70.3
Wrist 219 3.0 73.3
Back & Neck 179 2.5 75.8
Trunk (Multiple) 119 1.6 77.4
Lower Leg 112 1.5 79.0
Abdomen 108 1.5 80.5
Leg(s) (Unspecified) 108 1.5 82.0
Multiple Body Sys 103 1.4 83.4
Elbos 94 1.3 84.7
Scalp 90 1.2 85.9
Neck 87 1.2 87.1
Forearm 84 1.2 88.3
Hips 66 0.9 89.2
Lower Ext 65 0.9 90.1
Ear Internal 61 0.8 91.0
Arms (Unspecified) 61 0.8 91.8
Head (Unspecified) 59 0.8 92.6
Mount 57 0.8 93.4
Toe(s) 57 0.8 94.2
Thigh 53 0.7 94.9
Forehead 48 0.7 95.6
Face (Unspecified) 39 0.5 96.1
Respiratory Sys 33 0.5 96.6
Brain 29 0.4 97.0
Upper Ext 29 0.4 97.4
Nose 25 0.3 97.7
Ear External 17 0.2 98.0
Face (Multiple) 16 0.2 98.2
12
Cumulative
Percent

Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
INJURED BODY PART - ALL CLAIMS 1996, 1997, 1998 CONT.
Ear(s) 15 0.2 98.4
Upper Arm 15 0.2 98.6
Cheeks 14 0.2 98.8
Art Appl 13 0.2 99.0
Jaw 12 0.2 99.1
Head (Multiple) 12 0.2 99.3
Leg (Multiple) 10 0.1 99.4
Body Syst 10 0.1 99.6
Not Specified 9 0.1 99.7
Hand & Finger(s) 5 0.1 99.8
Upper Ext 4 0.1 99.8
Arm (Multiple) 4 0.1 99.9
Trunk/Legs 2 0.0 99.9
Foot & Toe(s) 2 0.0 99.9
Skull 1 0.0 100.0
Circulation Sys 1 0.0 100.0
Digestive Sys 1 0.0 100.0
Nerve Sys 1 0.0 100.0
Total 7,233 100.0
Percent of all Injuries
18.00
16.00
14.00
12.00
10.00
8.00
6.00
4.00
2.00
0.00
Eye(s)
Back
Ten Most Commonly Injured Body Parts
Multiple
Finger(s)
Ankle
Knee
13
Hand
Injured Body Part
Foot
Shoulder
Chest

Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
ASSOC SOURCE OF INJURY - ALL CLAIMS 1996, 1997, 1998
Assoc Source of
Injury
Valid Ladder Related
Injury
Frequency Valid
Percent
2,060 29.8 29.8
Trees, Vegetation
and Particles
1,476 21.4 51.2
Power or Non
powered Tools
602 8.7 60.0
Work Materials 471 6.8 66.8
Ground or Work
Surface
356 5.2 71.9
Heavy Containers or
Bins
336 4.9 76.8
Motor Vehicles 319 4.6 81.4
Tractors 231 3.3 84.8
Machinery and Ag
Equip
227 3.3 88.1
Toxics, Compounds,
and Pesticides
223 3.2 91.3
Working with 194 2.8 94.1
Musculoskeletal,
sprain or fracture
Insects and Animals 112 1.6 95.7
Not Specified 89 1.3 97.0
Floor Surfaces 58 0.8 97.9
Environmental
Conditions - Heat,
Cold, Sun, Wind,
Noise
56 0.8 98.7
Other 48 0.7 99.4
Falls not Related to
Ladder - Roof or
Platform
25 0.4 99.7
Apparel - Protective
gear or clothing
caught in machinery
11 0.2 99.9
Firearms or Violence 8 0.1 100.0
Total 6,902 100.0
Missing System 331
Total 7,233
14
Cumulative
Percent

Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
Percent of all Injuries
35.00
30.00
25.00
20.00
15.00
10.00
5.00
0.00
Not Specified
Ladder Related Injury
Trees, Vegetation and Particles
Power or Non powered Tools
Work Materials
Ground or Work Surface
Heavy Containers or Bins
Toxics, Compounds, & Pesticides
All Sources of Injury
Injury Source
15
Motor Vehicles
Working while injured
Machinery and Ag Equip
Tractors
Insects and Animals
Environmental Conditions
Floor Surfaces
Falls from Roof or Platform
Protective gear or clothing
Firearms or Violence
Other
INJURED BODY PART - COMPENSABLE CLAIMS 1996, 1997, 1998
Injured Body Part Frequency Valid
Percent
Valid Back 332 19.1 19.1
Multiple 215 12.4 31.5
Ankle 159 9.1 40.6
Knee 125 7.2 47.8
Wrist 101 5.8 53.6
Finger(s) 92 5.3 58.9
Shoulder 66 3.8 62.7
Foot 61 3.5 66.2
Back & Neck 54 3.1 69.3
Chest 53 3.0 72.3
Abdomen 45 2.6 74.9
Lower Leg 40 2.3 77.2
Hand 39 2.2 79.5
Trunk (Multiple) 34 2.0 81.4
Eye(s) 32 1.8 83.3
Elbows 31 1.8 85.0
Lower Ext 23 1.3 86.4
Ear Internal 20 1.2 87.5
Arms (Unspecified) 20 1.2 88.7
Forearm 20 1.2 89.8
Hips 20 1.2 91.0
Neck 19 1.1 92.1
Cumulative
Percent

Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
INJURED BODY PART - COMPENSABLE CLAIMS
1996, 1997, 1998 CONT
Leg(s) (Unspecified) 19 1.1 93.2
Upper Ext 17 1.0 94.1
Thigh 15 0.9 95.0
Toe(s) 15 0.9 95.9
Multiple Body Sys 10 0.6 96.4
Head (Unspecified) 9 0.5 97.0
Brain 7 0.4 97.4
Mount 6 0.3 97.7
Nose 5 0.3 98.0
Upper Arm 5 0.3 98.3
Scalp 4 0.2 98.5
Respiratory Sys 4 0.2 98.7
Forehead 3 0.2 98.9
Face (Multiple) 3 0.2 99.1
Face (Unspecified) 2 0.1 99.2
Arm (Multiple) 2 0.1 99.3
Hand & Finger(s) 2 0.1 99.4
Trunk/Legs 2 0.1 99.5
Leg (Multiple) 2 0.1 99.7
Foot & Toe(s) 2 0.1 99.8
Ear(s) 1 0.1 99.8
Jaw 1 0.1 99.9
Cheeks 1 0.1 99.9
Not Specified 1 0.1 100.0
Total 1,739 100.0
Percent of all Injuries
(Compensable Claims)
25.00
20.00
15.00
10.00
5.00
0.00
Back
Multiple
Ten Most Commonly Injured Body Parts
(Compensable Claims)
Ankle
Knee
16
Wrist
Finger(s)
Shoulder
Injured Body Part
Foot
Back & Neck
Chest

Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
ASSOC SOURCE OF INJURY - COMPENSABLE CLAIMS
1996, 1997, 1998
Assoc Source of
Injury
Frequency Valid
Percent
Valid Ladder Related Injury 774 46.2 46.2
Ground or Work
Surface
130 7.8 54.0
Trees, Vegetation and
Particles
117 7.0 61.0
Motor Vehicles 112 6.7 67.7
Heavy Containers or
Bins
Power or Non
powered Tools
Working with
Musculoskeletal,
sprain or fracture
103 6.2 73.8
101 6.0 79.9
68 4.1 83.9
Tractors 64 3.8 87.8
Work Materials 63 3.8 91.5
Machinery and Ag
Equip
42 2.5 94.0
Environmental
Conditions - Heat,
Cold, Sun, Wind,
Noise
25 1.5 95.5
Floor Surfaces 21 1.3 96.8
Toxics, Compounds,
and Pesticides
12 0.7 97.5
Not Specified 10 0.6 98.1
Falls not Related to
Ladder - Roof or
Platform
10 0.6 98.7
Other 10 0.6 99.3
Insects and Animals 8 0.5 99.8
Apparel - Protective
gear or clothing
caught in machinery
3 0.2 99.9
Firearms or Violence 1 0.1 100.0
Total 1,674 100.0
Missing System 65
Total 1,739
17
Cumulative
Percent

Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
Percent of Injuries (Compensable Claims)
50.00
45.00
40.00
35.00
30.00
25.00
20.00
15.00
10.00
5.00
0.00
Sources of Injury (Compensable Claims)
Not Specified
Ladder Related Injury
Trees, Vegetation and Particles
Power or Non powered Tools
Work Materials
Ground or Work Surface
Heavy Containers or Bins
Toxics, Compounds, & Pesticides
Motor Vehicles
Working while injured
Machinery and Ag Equip
Tractors
Insects and Animals
Environmental Conditions
Floor Surfaces
Falls from Roof or Platform
18
Injury Source
Firearms or Violence
Other
Protective gear or clothing

Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
ASSOC SOURCE OF INJURY - FATALITIES 1996, 1997, 1998
Assoc Source of Injury Frequency Valid
Percent
Valid Motor Vehicles 6 46.2 46.2
Firearms or Violence 4 30.8 76.9
Other 2 15.4 92.3
Tractors 1 7.7 100.0
Total 13 100.0
19
Cumulative
Percent
ACTUARY INCURRED TOTAL – ALL CLAIMS 1996, 1997, 1998
N Minimum Maximum Mean Std.
Deviation
ACTUARY
INCURRED
TOTAL $
7151 7.52 513,261.00 3,988.87 19,826.80
Valid N 7151
ACTUARY INCURRED TOTAL - COMPENSABLE CLAIMS 1996, 1997, 1998
N Minimum Maximum Mean Std.
Deviation
ACTUARY
INCURRED
TOTAL $
1737 12.12 513,261.00 14,191.59 35,724.63
Valid N 1737
ACTUARY INCURRED TOTAL - FATALITIES 1996, 1997, 1998
N Minimum Maximum Mean Std.
Deviation
ACTUARY
INCURRED
TOTAL $
13 4,087.56 429,121.61 118,320.64 117,697.66
Valid N 13

Growing Resentment: Regulating Farm Worker Safety in Washington State Orchards (A)
Attachment B
20