By Sandy Robson
April 23, 2018
In a February 1, 2018 letter sent to Robert Hawk, CEO of Sarbanand Farms, LLC, Deibi Sibrian, Industrial Relations Agent with Washington State Department of Labor & Industries (L&I) wrote, in part:
“During the course of our investigation, we found significant violations of the meal and rest period regulation, WAC 296-131-020. Our review of your records and employee statements show that you committed meal and rest period violations involving hundreds of workers on multiple occasions.”
There were multiple investigations conducted by L&I after the tragic death of H-2A guest worker, Honesto Silva Ibarra, a married father of three, who, while working during the 2017 summer blueberry season at Sarbanand Farms in Sumas, Washington, became ill and was taken by ambulance to a local hospital on August 2, 2017. He later died on August 6, 2017, at Harborview Medical Center, in Seattle, after having been transported there on or around August 3, 2017.
Various news articles published last summer reported Mr. Silva Ibarra’s age having been 26 years old, or 28 years old. The seattlepi.com obituary list on which Honesto Silva Ibarra’s name appeared on August 15, 2017, after the death certificate had been filed, listed his age at 30 years old, and listed his city of residence as being Ojocali, Mexico.
Two days after Mr. Silva Ibarra was taken away from the farm by ambulance, approximately 70 to 80 of the H-2A farm workers at Sarbanand Farms refused to work on August 4, striking in protest of what they said were poor working conditions at the farm, and over what they said was a lack of timely medical attention to Mr. Silva Ibarra. Then, the next morning, on August 5, 2017, the striking workers were fired by the farm’s management and were given one hour to gather their things and leave the farm.
Local advocates had helped coordinate for the displaced workers to stay temporarily at a nearby property where they were allowed by the owners to stay in tents. The camp was called “Camp Zapata” which is the name the workers gave to the camp they set up there.
Mr. Silva Ibarra was one of the nearly 600 H-2A guest workers from Mexico who were contracted to work at Sarbanand Farms in 2017. In supplying those H-2A workers, the company used CSI Visa Processing, the largest H-2A recruiting and processing agency in Mexico.
A February 1, 2018 press release issued by L&I announced that three different L&I teams investigated workplace safety, pesticide concerns reportedly raised by three Sarbanand Farms’ workers, and employment standards which includes issues such as wages and rest periods and meals. Those concurrent investigations began in August of 2017 after Mr. Silva Ibarra’s death.
While L&I’s press release generally stated that its department was citing Sarbanand Farms for “violations relating to late or missed rest breaks and meal periods for hundreds of workers,” the department provided negligible information to indicate the extent of those violations.
Public records daylight extent of employment standards violations
According to public records released to me by L&I on April 19, 2018, Sarbanand Farms racked-up a total of 13 violations in terms of missed breaks and late meals affecting hundreds of its farm’s H-2A employees on multiple days during a 15-day period in July 2017.
There were five days in a row, July 24, 25, 26, 27, and 28, on which there was at least one violation that occurred in terms of missed breaks and/or late meals.
There were three days on which multiple violations occurred in terms of missed breaks and late meals: July 14, July 24, and July 25.
When considering the number of violations committed by Sarbanand Farms, it is important to note that L&I only requested (from the farm) payroll records to review for a period of 15 days, from July 14, 2017 to July 28, 2017. From my review of the records made available to me by L&I, it appears that the H-2A workers arrived to work at Sarbanand Farms in early July last year, were paid for 2 hours of orientation on July 4, but then they did not start work harvesting blueberries until July 14. That could likely be the reason why L&I requested records starting with the date July 14. Meanwhile, it is unclear why the department decided to only request records through July 28, 2017.
L&I’s February 1, 2018 letter to Sarbanand Farms explained that according to the calculations its department chose to use, the meal and rest period violations affected a total of 583 employees of Sarbanand Farms. The letter further spells out that state law authorizes L&I to assess a civil infraction for each violation of the rule, and the department may include a penalty for each worker affected by each violation, which, for the selected date of July 27, 2017, would result in the total amount of $145,750.00.
The last paragraph on page 1 of the letter stated that the civil infraction would be served directly to Sarbanand Farms by Whatcom County District Court, and that the company would have 15 days from the date issued, either to respond to the court to request a hearing, or to pay the fine listed.
Sarbanand Farms requests District Court hearing to contest civil infraction
In the public records released to me on April 19, there was a copy of the front and of the back of the Civil Infraction Ticket (# 14502). On the front of the notice, it showed the company name “Sarbanand Farms LLC,” the farm’s street address, the statutes which were violated, a brief description that said “employer did not provide timely meal periods and did not provide all required rest periods,” and the dollar amount of the penalty which is $73,000.
Stamped on the front of the infraction ticket, were the words “READ THE BACK,” so I did. On the back it described the three ways to respond, which were to pay the fine, or request a mitigation hearing, or to request a contested hearing.
According to the descriptions on the back of the ticket, a mitigation hearing is where the defendant agrees that they’ve committed the infraction/s but, want a hearing to explain the circumstances. A contested hearing is where the defendant wants to contest or challenge the infraction, and they are saying that they did not commit the infraction/s.
Upon reading that information on the back of the infraction ticket, I called the Whatcom County District Court on Friday, April 20, and inquired about whether Sarbanand Farms paid the $73,000 fine. The clerk informed me that the company did not pay the fine, and instead requested a contested hearing which is scheduled for Wednesday, April 25, at 9:00 AM, on the 4th floor of the County Courthouse in Bellingham.
I hung up from the phone call and was shocked, to say the least, as I couldn’t believe Sarbanand Farms’ owners, Baldev (David) Munger and his brother Kewel (Kabel) Munger, would contest the minor penalty that had been assessed by L&I for the multiple violations the company was found to have committed in the course of the department’s investigation into employment standards.
I don’t understand how the Munger brothers can justify contesting the penalty when, in the records I reviewed, there is a February 1, 2018 letter from L&I Agent Deibi Sibrian, in which he stated that during his interview with Sarbanand Farms’ Orchard Manager, Javier Sampedro, and a Crew Manager named Pablo Gonzales, “they admitted that the employees did not receive timely meal periods and all the required rest periods.” The letter was directed to Whatcom County District Court Clerk Karen Schultz, asking the court to issue the Agricultural Infraction Ticket No. 14502 to the defendant Sarbanand Farms.
Is largest penalty ever assessed by L&I for agricultural rest and meal breaks enough?
What follows, is some background about that penalty amount in terms of why I describe it as minor, even though according to L&I’s February 1, 2018 press release, the penalty Sarbanand Farms is facing is the largest that the department has ever assessed for agricultural rest and meal break violations.
In its February 1, 2018 letter, L&I rationalized that in recognition for Sarbanand Farms having willingly cooperated with the investigation, openly sharing information, and immediately correcting issues to avoid future violations of this nature, the department elected to reduce the $145,750.00 penalty to $73,000. L&I based that $73,000 penalty on “$250 per worker at a reduced number of 292 violations.” The 292 number represents one half of the 583 number of workers affected on July 27.
The letter also noted that in addition to the penalty, the district court (Whatcom County District Court) is required to assess an additional 105% of the original penalty for public safety and education. That required 105% added to the $250 figure brings the figure to $513 per worker. If L&I had used the actual number of workers affected (583) just on July 27, the penalty just for that one violation would have been $299,079.
There are some important things to know about what L&I chose to do in what can be viewed as its questionable actions in reducing the penalty to $73,000. In the public records released to me, there was an L&I internal document titled, “Agricultural Civil Infraction Recommendations,” listing various, potential options which its department could decide to take in terms of how they choose to compute the penalty.
According to that L&I document, one of the options that L&I could have selected was to have assessed a penalty of $1,879,719.00 which was based on $513 multiplied by the total number of workers affected (3,663) by missed rest periods and late meals.
Another listed potential option was that L&I could have selected to have assessed a penalty of $2,951,802.00. That dollar amount was based on $513 multiplied by the “per person/per violation” figure (5,754). There were some other listed options as well.
Even though Sarbanand Farms committed a total of 13 violations during the 15-day period reviewed by L&I, the department decided to only use the date on which the largest number of workers were affected by the violations, July 27, 2017, and base the penalty on that one violation which occurred on that one day.
So, while there was a total of 13 violations during the 15-day period reviewed by L&I, the department chose to ignore the rest of those 12 violations committed by Sarbanand Farms which impacted hundreds of workers on multiple days, and instead, based its assessed penalty on only 292 workers which, as noted above, is only half of the total number of workers affected on that single date of July 27. Also, keep in mind that these missed rest breaks and late meals occurred while workers were putting in 11-hour to 13-hour workdays, as reflected in the records I received.
That kind of seemingly extraordinary consideration given to Sarbanand Farms for its supposed good faith that L&I said its department felt the company demonstrated during the investigations does not appear to be deserved when weighed against the findings from the investigations.
DOSH inspection finds farm did not maintain required OSHA 300 log
For example, contained in L&I’s 278-page pesticide investigation (number 317946346) records released to me on April 4, 2018, is a table displayed on page 7 of the report. A note in that table reads as follows: “The employer was cited in DOSH [Division of Occupational Safety and Health] Inspection 317945641 for not maintaining OSHA [Occupational Safety and Health Administration] 300 records and are therefore not included in this report.” Below that it shows OSHA 300 data/records for 2016 and for 2017 were “Not Available.” Additionally, the table shows OSHA data/records for year 2013 as “Data Checked Not Recorded.”
According to L&I’s website, most employers are required to record workplace injuries and illnesses in an OSHA 300 log. Pursuant to Washington Administrative Code (WAC) Chapter 296-27, Sarbanand Farms does not meet any of the listed exemptions to the requirement that a company must maintain OSHA 300 data/records, so it is required to do so.
So far, while it appears that L&I cited Sarbanand Farms for not maintaining OSHA 300 data/records, it does not appear that the company was fined for that cited infraction. Upon seeing the brief reference in the pesticide report I reviewed, to that citation issued in another inspection (DOSH Inspection 317945641), I sent an April 9, 2018 email to L&I’s Public Affairs Manager Tim Church, asking him a few questions relating to the citation issued by DOSH. He responded on April 12, saying he would get back to me early in the following week, which, so far, he has not done as of the date of publication of this article.
On Tuesday, April 17, I submitted a public records request to L&I for any records pertaining to the DOSH inspection in which Sarbanand Farms was found not to have available for the years 2016 and 2017, the required OSHA 300 records/log and what looks like might also be missing OSHA 300 records/log for 2013. I will be addressing that subject in a follow-up article when I receive more information about it from L&I, as well as addressing some more details from the findings contained in the inspection records I have already received which I’ve provided some basic information about above.
L&I’s pesticide and safety investigations found no violations by farm
In its safety investigation L&I found no safety and health violations. In the department’s investigation into pesticide concerns, it found that the farm followed all re-entry interval, sign posting, training, handling and application requirements pursuant to Washington state statutes in terms of pesticide use. Matt Hoezee is the licensed pesticide applicator who applied the pesticides, and he is also the Blueberry Ranch Manager for Munger Companies, the parent company of Sarbanand Farms.
As for L&I’s investigation into safety at the workplace in terms of Mr. Silva Ibarra’s death, the department reported in its February 1 press release that according to an autopsy conducted by the King County Medical Examiner’s Office, his death was from natural causes, and not related to occupational issues.
I called the King County Medical Examiner’s Office on April 10, 2018, to ask some questions. The staff person who I spoke with told me that Honesto Silva Ibarra died of “Diabetic Ketoacidosis due to Diabetes Mellitus, and the manner of death is natural.” I asked the date of the autopsy, but was told that it “did not show a date for the autopsy.” I believe the information being accessed at that time by the staff person was from a computer screen.
Some things to think about when considering investigation findings
Here’s what I can’t stop thinking about when going through these hundreds of pages of public records, knowing that according to the King County Medical Examiner’s Office, Mr. Silva Ibarra died from natural causes, and it was not related to occupational issues at Sarbanand Farms.
- It was hot in the days leading up to August 2, 2018, the day on which Mr. Silva Ibarra had to be taken by ambulance to a hospital. And, according to historical weather data on Accuweather.com for August 2, it was very hot, 90 degrees, on that particular day, in Sumas, Washington.
- A July 31, 2017 article published by The Bellingham Herald reported that there was an excessive heat warning in effect for Tuesday, August 1 through Friday, August 4, “for areas including Whatcom and Skagit counties from the Salish Sea shoreline to the Cascades Mountains.”
- At this same time during which Whatcom County was experiencing extreme heat, there were very smoky air quality conditions in Whatcom County due to the hundreds of wildfires burning in nearby British Columbia. The city of Sumas, in which Sarbanand Farms is located, is adjacent to the Canadian border and borders the city of Abbotsford, British Columbia, so it would certainly have been impacted greatly by the smoke from the B.C. wildfires. The Northwest Clean Air Agency issued a July 31, 2017 press release which announced in part:
“Starting today (Monday, July 31), forecasts show B.C. wildfire smoke could impact Whatcom, Skagit and Island communities for the next few days. Air quality could be unhealthy at times in particular on Tuesday and Wednesday.
“In addition, the hot, sunny weather could add complications by increasing levels of ground-level ozone that increase the chance of breathing problems.
“If you experience breathing problems, please take precautions to protect yourselves, family members and animals.
“Stay inside and keep doors and windows closed when harmful smoke is present. Limit or avoid strenuous outdoor activity.”
- The combination of hot, sunny weather and smoky air which presented potential health issues for people did not seem to deter Sarbanand Farms from having its farm workers continue to work in those conditions even though a government agency such as the Northwest Clean Air Agency, advised the public to limit or avoid strenuous activity, and even to stay inside when harmful smoke is present. Instead, from reviewing the limited public records made available to me, the farm had its workers on Crew #212 continue to work 9-hour days on August 1 and August 2.
- It’s likely other crews of Sarbanand Farms’ workers were also working on those dates, however there is no information about other worker crews in the records provided to me since it appears that L&I’s review of work records was limited by the specific scope the department determined it needed. We do not know if there were any missed rest periods or late meals for August 1, August 2, and beyond, because L&I did not include those dates in its investigation.
- It should be noted that in the records L&I provided to me, there was only a summary for the dates worked and the number of hours worked on those dates, including the field numbers they worked in, for two workers who were on Crew #212, one of whom, was Mr. Silva Ibarra. And, in those records, there were only three time sheets displaying some (not all) of the worker names for Crew #212, showing the hours they worked for three particular dates: July 14, July 15, and July 16. Also, there were only three time sheets displaying some (not all) of the worker names for Crew #211, showing the hours they worked for the same three particular dates: July 14, July 15, and July 16. All of these records referenced in this paragraph were contained in the findings of the pesticide investigation.
- L&I records show that on Tuesday, August 1, Mr. Silva Ibarra did not work that day, yet he was on Crew #212, which according to those records, the crew was working in Field #4 on that date. Seeing that he did not work on August 1, when his crew was picking blueberries in Field #4, causes me to wonder if Mr. Silva Ibarra was feeling too ill to work that day. If he was not working, it would then be likely that he would have had to let his supervisor/boss know that he was not working, and the reason why he was not. If Sarbanand Farms had maintained OSHA 300 log records as is required, then there might have been information about that which could have been germane to the investigation.
- L&I records also show that on August 2, Mr. Silva Ibarra worked only 2.50 hours in Field #4. According to news reports last summer, Sarbanand Farms management said after feeling very ill, Mr. Silva Ibarra came to the office to say he was ill and needed attention. Farm management also claimed that Mr. Silva Ibarra never told anyone that he was diabetic, and that they only found out on August 2 that he had diabetes.
- Prolonged, strenuous work in hot weather can easily cause dehydration if you are not getting adequate fluids. If you add to that the possibility of having diabetes, then the potential for life threatening consequences is greatly increased. That is why it seems so critical that companies make it clear to their employees that they should feel absolutely confident that reporting an illness or injury to their employer will not be viewed as a negative by their employer. It also seems critical that companies clearly articulate a protocol for employees to follow when they become ill or injured while working, and continuously encourage that to be followed, and that the company follow that protocol too. Part of that protocol should include maintaining an OSHA 300 log so there are records of employee illnesses and injuries.
Details to come about interactions with L&I relating to its investigations
It should be noted that obtaining the particular set of records from L&I relating to its department’s findings regarding its investigation into employment standards at Sarbanand Farms was like pulling teeth. I will be publishing a companion piece to this article to provide the public a picture of the manner in which, so far, L&I has handled my public records requests and my communications with its department in relation to its multi-pronged investigations of Sarbanand Farms. This experience has, so far, caused me to lose a good deal of confidence in the leadership of our state’s Department of Labor & Industries and the department’s ability to adequately protect workers.