Corporate Treason: What The Zirkle Case Reveals
In this exclusive analysis of the
successful class action law suit brought against the
Selah WA-based Zirkle Fruit Company—which cravenly
doesn`t have a website, but
this is its marketing arm—VDARE.COM will expose the
company and its officers for illegal behavior so craven
hard-boiled observers like myself are taken aback.
Zirkle was so brazen in its
preference for illegal aliens that by 2001 no more than
30 percent of the Zirkle workforce was legal.
When you read all the revolting
facts, you will quickly understand why Zirkle threw in
the towel. The
truth, as you`ll soon learn, is far worse than you
Howard Foster, a
Chicago lawyer, brought the case under an ingenious
legal theory based upon the Racketeer Influenced and
Corrupt Organizations Act—RICO.
He sued Zirkle, and another local operation, the
Matson Fruit Company, on behalf of legal workers,
alleging that their
wages had been depressed by the companies`
"illegal immigrant hiring scheme."
(Brief and important facts about
1996 when the GOP Congress passed immigration reform,
several laws were affected, including the Racketeer
Influenced and Corrupt Organizations Act. The RICO list
of "predicate offenses" was amended to include
violations of Section 274 of the Immigration and
Nationality Act, which prohibits knowingly
transporting illegal aliens. For the first time, it
became possible for private citizens to sue for
violations of the key provision of our immigration law.)
Foster was certain that, if the two
fruit companies had complied with the law—that is, not
hired illegal workers—his clients would have received
wages that were at least 20 percent higher than what
they were actually paid to sort and
pack apples into boxes—$6.00 an hour,
barely above minimum wage.
(The Matson case wasn`t certified
as class action, and Foster subsequently dropped it.)
The local federal judge initially
dismissed the Zirkle case. But Foster appealed the
dismissal to the San Francisco-based
Ninth Circuit Court of Appeals.
And the Ninth Circuit, perhaps
aware of the studies of Harvard economist
George Borjas that show the relationship between an
immigrant workforce and wage depression,
reversed the dismissal and ordered the case to
Very happily, this reversal
established a precedent that can be used in similar
cases throughout the country. [Mendoza
v. Zirkle Fruit Co., 301 F.3d 1163, 9th Cir.
2002, for those of you who want to read it.]
Two weeks after the Ninth Circuit`s
decision, Zirkle shamelessly placed a full-page ad in
the Yakima Herald Tribune comparing Foster to the
September 11th hijackers. Many Zirkle employees, all
with Hispanic surnames, signed the ad. The signatories
attested to the good faith of their employer and the
soundness of the company`s hiring policies.
Zirkle`s smear notwithstanding,
Foster`s first step was to take depositions of the apple
companies` owners and human resources managers.
A crucially important figure in the
case turned out to be Juana Castenada, a naturalized
American citizen who holds a key position at Zirkle: she
decides whether applicants are
eligible for employment based upon the documents
Castenada, court filings reveal,
has remarkable qualifications for her job. She herself
entered the U.S. illegally. She obtained her job at the
fake social security and green cards which she
purchased in Yakima for $50.
It was then and is now a
federal crime for Castenada to have used fake
documents to obtain employment. And it`s
another federal crime for Zirkle to have accepted
such documents knowing they were fakes.
Let`s be realistic. It takes
well over a decade to
lawfully obtain a green card. Castenada had only
been in the U.S. a relatively short period when she
presented her "lawful permanent residency" and
social security cards to Zirkle. She knew little if any
But, needless to say, the manner in
which Castenada obtained her first job at Zirkle has not
adversely affected her employment.
Castaneda, as it turns out, fit the
typical profile of most of Zirkle`s hourly paid workers:
illiterate, Spanish-speaking and possessing shiny
new green cards, sometimes issued to someone else with
the original falsifier`s picture on the card.
One Zirkle employee familiar with
the company`s scam
said the documents were obviously falsified:
a whole bunch of them, they made at home, they took a
photo, they sliced the plastic and put the photo in
there… you look at the picture and it was somebody
illegal alien employees bogus documents were
borrowed, like a library book, for a fee often cheaper
than the cost of the original purchase.
But no matter how obviously phony
the documents, Zirkle hired all comers.
Even today at Zirkle, on the rare
occasion that there is some question as to whether or
not to hire an
illegal alien applicant, the final decision rests
Castenada is now married to the
human resources director Gary Hudson. Despite her
position in the company, her
English is still rudimentary. She gave her
deposition in Spanish, translated by an interpreter,
while claiming that her actions were perfectly legal
because she was simply following the orders of her
Zirkle has a long history of
immigration law breaking. In the late 1990s,
Zirkle`s hiring practices were so flagrantly offensive
that even the usually inert
Immigration and Naturalization Services took action.
After a raid on the company, the
I.N.S. ordered Zirkle to fire over 100 workers.
Previously the I.N.S. would
announce its "inspections" to area
agricultural companies in advance. Supervisors would
warn illegal aliens and, on inspection day, up to half
the workforce would be "absent."
This happened so often at Matson
Fruit Co. that it decided to skip the pretense and
maintained two sets of employment documents, one for
I.N.S. use, and another one for its own.
During discovery, Foster learned
more sordid details:
70 percent of Zirkle`s
warehouse and orchard workers were using
social security numbers that were not issued to
them; of those using Alien Registration Cards, 80
percent had someone else`s name.
The human resources department
actively abetted the hiring of illegal aliens.
Castaneda filled out
I-9 forms— the one-page U.S. government document
every employer must complete upon the hiring of each
new worker—for new hires who in all likelihood could
not read or write English. Both the employer and
employee must sign under oath, subject to the
penalties of perjury, that the worker has shown the
employer documentation establishing his or her
employment eligibility and identity. If the parties
follow the law, the I-9 form will prevent the
employment of illegal immigrants. But, as noted
earlier, Castaneda gained employment at Zirkle in
much the same fashion as she permitted hundred of
others to do…by using false documentation.
The company`s office manager,
Ms. Toni Jenft, pre-printed over several years
thousands of I-9 forms, with the company`s signature
affixed before any documents were examined,
in flagrant violation of federal law. Although Jenft
belatedly admitted doing so, she received no
punishment and is still in her job.
Some orchard foremen
perjured themselves in their depositions by
denying the I-9 forms were pre-signed (a fact they
later admitted to). Others could not understand the
most basic concepts of the I-9 process, like what is
Ten days before the January 9, 2006
trail date, in an abrupt conclusion to the case, Zirkle
agreed to pay $1.3 million to the small band of
legally authorized workers. Significantly, it
appears the cave-in was motivated by the publicity that
the case was starting to receive.
Three courageous “class
representatives”, legal workers who agreed to be
examples for their class, will receive $10,000 each for
their years of struggle. Their sacrifices have not been
painless, however. Two of the workers claim that they
are now "blacklisted" by local agriculture firms.
Foster`s settlement sets a powerful
precedent for future cases against employers like
Tyson Foods, notorious for hiring illegal aliens.
And the Zirkle case has already
sent shudders throughout the corporate community that
hires and exploits aliens, as well as their lobbyists
who promote illegal activity.
For example, Dianne Solis in the
Dallas Morning News Dallas Morning News has
reported that in April the U.S. Supreme Court is
expected to hear a
Georgia racketeering case against carpet giant
Mohawk Industries Inc., regarding its employment
practices and the possible use of illegal labor
Howard Foster will argue the case
for the plaintiffs—four women who are suing as a class
assert that Mohawk conspired to artificially and
illegally depress wages by hiring illegal immigrants. (Illegal
Labor Could Cost Firms in Court, February 14,
Mohawk, the nation`s second largest
carpet manufacturer, employs about 32,000 people and
reported over $6 billion in sales during 2004. The
company denies any illegal conduct.
But the plaintiffs` co-counsel
Bobby Lee Cook says Mohawk operates in a
region known as the world`s carpet capital, and he
estimates that nearly half the workers there are illegal
Cook, one of the most prominent
litigators in the South, said
inundated by illegal workers."
U.S. Chamber of Commerce, which filed a brief in
support of Mohawk, is worried about the over-all impact
on illegal alien hiring that Foster`s ground-breaking
RICO work will have.
Said Amar Sarwal, general counsel
of the National Litigation Center, the public policy law
firm of the U.S. Chamber of Commerce:
case is about RICO, which was initially used to go after
the mob, and now it is being expanded by smart plaintiff
lawyers to go after employers who have nothing to do
with the mob."
But Foster sees it differently. As
fully intended to make illegal immigrant hiring a RICO
violation when it reformed immigration in 1996."
Foster`s victory over Zirkle and
the pending Supreme Court case against Mohawk ensure
that many more RICO cases are yet to come.
And concerned citizens are on the
prowl for companies that knowingly employ aliens.
An Internet watchdog site,
WeHireAliens.Com, lists nearly 750 employers in
forty states that hire aliens. The interactive site
allows outraged Americans to post the names of companies
like Zirkle when they violate immigration laws.
No matter where in the U.S. you may
be reading this column, you are probably saying, "I
know a business right here in town that would be a make
a good RICO case."
In the Zirkle case, Foster has done
a valiant deed, not only for the immigration reform
community, but also for all Americans who are
fed up to here with illegal immigration.
More triumphs are certainly on the
E-mail addresses for Zirkle Fruit and its key employees
- Zirkle Fruit Company (general
- William Zirkle, President (e-mail)
- Gary Hudson, Human Resources Director (e-mail)
Castenada, Assistant Human Resources Manager (e-mail)
Joe Guzzardi [email
him], an instructor in English at the Lodi
Adult School, has been writing a weekly newspaper column
since 1988. This column is exclusive to VDARE.COM.