Feds sue Burbank blueberry farm

Annette Cary, Tri-City HeraldAugust 3, 2013 

The U.S. Department of Labor has sued a Burbank blueberry farm and packing house in a dispute that started with a surprise inspection by wage and hour investigators July 23.

Blue Mountain Farms and Blue Mountain Farms Packing initially agreed to allow investigators on their property. But when investigators returned a second day, the owners threatened to call the sheriff.

The Department of Labor filed a lawsuit in Eastern Washington U.S. District Court against the farm and packing house to gain access to its property before the short blueberry picking season ends. The Department of Labor indicated in court documents that it is cracking down on Northwest blueberry farmers after finding two years ago that many were not complying with child labor and minimum wage laws for migrant and seasonal workers.

When 10 inspectors arrived at the Blue Mountain packing shed July 23, they said they did not need permission to interview workers and check for safe working conditions. But they agreed to speak to Blue Mountain's attorney.

That's when accounts of what happened begin to differ.

Blue Mountain attorney Timothy Bernasek said in court documents that he negotiated by phone an agreement that federal inspectors could conduct 15 interviews in the blueberry fields and seven in the packing shed.

If the Department of Labor wanted to do more interviews later, Manuel Lucero, who led the department's investigation, would notify Blue Mountain's attorney, said Ryan Brock, a Blue Mountain owner, in court documents.

But Lucero said in court documents that he negotiated a number of interviews to be conducted, and only for that day, as a matter of expediency. Inspectors had already spent more than two hours at Blue Mountain before starting worker interviews and the work day was ending two hours later at 12:30 p.m., he said.

The next day investigators returned to Blue Mountain. When Brock arrived and learned that five investigators were in one of his fields, he drove there and told them they did not have permission to be on his property.

"When they initially refused to leave, I told them I would call law enforcement," he said in court documents.

They withdrew to a nearby road and Brock said his attorney worked throughout the day to resolve the issue.

The next day the Blue Mountain attorney received a letter from the Department of Labor saying it had found apparent minimum wage and overtime violations at the farm and packing house. The government had declared the blueberries "hot goods" and had asked Blue Mountain voluntarily not to ship them, according to the letter.

"My understanding is that there is still an ongoing investigation of my operation," Brock said in a court document filed July 26, the day after the letter was sent. "I was not then and have not as of (the) time of this declaration been made aware by the United States Department of Labor of anything specific that my operation might have done to violate the minimum wage, overtime or child labor laws."

Blue Mountain wanted to control investigators' access because of concerns about disruption to work, Brock said.

"If I cannot get my blueberries picked quickly when they are ripe and shipped to market I could lose out on my entire investment throughout the year," Brock said in court documents.

Brock also is concerned about Blue Mountain's Good Agricultural Practices certification, which limits individuals allowed in the field and items that can be brought into the field, such as watches and jewelry.

When he told investigators to leave his blueberry field, he noticed that fewer pickers had come to work than the previous day.

"I believe the workers were intimidated by the investigators and chose to work somewhere else," he said in court documents. "The fact that I had fewer workers added to my concern about my ability to get the harvest competed in a timely manner."

Lucero said that when an investigator interviews a worker, which takes about 30 minutes, the rest of the workers continue at their assigned tasks so that the harvest continues. More than 100 workers were in the fields during the investigation and additional workers were in the packing house, according to Department of Labor estimates in court documents.

One of Lucero's investigators heard that "the kids" were told to leave the fields before investigators were allowed access to the fields, Lucero said in court documents.

However, investigators did not have access to anyone allegedly told to leave to determine if the statements were true, he said.

Investigators need access to fields to conduct time studies to ensure workers are receiving sufficient pay, said Ruben Rosalez, regional wage and hour administrator, in court documents.

Wages for working on blueberry crops are paid on a piece rate basis, with each worker submitting a ticket with the quantity of fruit picked. However, the wages still need to at least equal what workers would be paid hourly at minimum wage, so employers also need to record hours work.

In some cases, family members will share the same ticket submitted for payment, which improperly inflates the hourly rate shown in employer records, Rosalez said.

Employing children is another common problem in Northwest blueberry fields, he said. Teens ages 14 and 15 may work during non-school hours and children ages 12 and 13 may work with written consent of their parent.

The Department of Labor asked the courts for a temporary restraining order to allow investigators immediate access to Blue Mountain. However, Judge Rosanna Malouf Peterson denied this.

Although the Department of Labor said the harvest season is as short as three to four weeks, nothing in Lucero's statement said how much time is left in the harvest or how long the investigation will take, Malouf Peterson said in her written ruling.

However, the court will continue to consider the Department of Labor's request for an injunction to allow investigators on Blue Mountain property.

-- Annette Cary: 582-1533; acary@tricityherald.com

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