Labor/Employment
Aug. 6, 2002
Former Braceros Ask Judge for Justice and Lost Wages
SAN FRANCISCO - A federal judge appears sympathetic to claims by thousands of Mexican migrant workers that they were cheated of a contractual right to millions of dollars in wages between 1942 and 1964.
But U.S. District Judge Charles Breyer also seemed prepared Friday to hold that Mexico had sovereign immunity for its alleged role during the early years of the program.
A suit filed in 2001 seeking class action status for former braceros and their descendants contends the Mexican government and its banks, as well as Wells Fargo Bank and the U.S. government, breached their contracts to repay the money withheld from U.S. wages as a savings plan and instead enriched themselves. Cruz v. United States, C01-892CRB.
The suit seeks repayment of the withheld money. Lawyers for the banks and the two governments asked Breyer on Friday to dismiss the suit.
Mexico once had absolute sovereign immunity, Breyer said during the hearing. That changed in 1952, making foreign governments vulnerable to some suits in the United States, he said. Ultimately, Breyer said, the central question is whether the 1952 change could be applied retroactively to 1942.
An attorney for the braceros, Bill Lan Lee, argued that the pre-1952 cases should be allowed to proceed because "absolute sovereign immunity was not absolute."
Lee, former head of the Office of Civil Rights in the Clinton administration, said a 1976 change in the law created federal jurisdiction.
Jonathan Blackman, an attorney for Mexico and its banks, argued that the 1976 law "reaffirmed the prospective nature" of the 1952 understanding.
The arguments extended into the evening before a courtroom packed with nearly 100 former farmworkers, their relatives and supporters.
Between 1942 and 1964, the United States allowed 400,000 Mexican migrant workers into the United States, originally to replace farm and railroad workers who had left to fight World War II. Later they were widely employed as farmworkers.
The Mexican government, concerned about the history of lower wages, discrimination and forced repatriation of its workers from the United States after World War I, negotiated a savings fund for workers.
In its effort to protect the braceros (derived from brazo, meaning arm), the Mexican government required that 10 percent of their wages be withheld and sent to banks in Mexico as "savings" awaiting the workers' return.
The suit alleges that the United States failed to collect or promptly transmit the withheld wages and that Wells Fargo failed to transmit the money promptly and failed to document who should receive it.
The suit also contends that the Banco de Mexico failed to document who was to receive the funds and failed to transmit the money promptly to the Banco de Credito Agricola.
Breyer, who laid out his tentative positions in the case at the outset of Friday's hearing, made it clear he considers the initial arrangement the equivalent of a labor contract, which helps the braceros.
Breyer went on to suggest that he was "not sure" what Wells Fargo had done wrong in the case. As for the United States, the six-year statute of limitations may be the biggest hurdle for the plaintiffs.
A 1945 letter sent to a State Department official overseeing the program described how the braceros were allegedly denied the money.
A man would travel from his rural home to Mexico City to ask the bank for his savings funds, according to the letter. He would be put off for several days by the bank until he had no money left and had to either return home or sleep on the streets.
"When he is in this malleable state and it is easy to so determine, he may be offered a chance by one of the bank tellers or some individual outside to discount his savings at, say, anywhere from 25 to 50 percent. He is only too glad to accept, gives clearance, takes his share and goes back [home] while the coyotes start to clean up," according to the letter in the court files. The writer estimated the amount of savings involved in 1945 was roughly $10 million.
The government of Mexico contends that $34 million was collected, but $30 million was repaid to the workers or designates who may have tricked the workers out of their shares. The plaintiffs dispute the size of the repaid amount.
Wells Fargo's role was to collect the funds and transfer them to the Banco de Credito Agricola in Mexico City, where it was to be distributed to the workers.
An individual worker might have $400 or less in the savings account, representing 10 percent of two years' work. Frequently the amounts were much smaller.
Of the 400,000 workers employed over the life of the program, 136,000 were used as railroad workers at 32 separate rail companies throughout the country. In the 1940s, more than half the workers were employed in California harvesting crops.
Pamela Mac Lean
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