STATE OF NORTH CAROLINA

WAKE COUNTY

LEONCIO ACOSTA, LUIS ACOSTA,

FRANCISCO ACUA, JOSE EDUARDO
GAUNA, FERNANDO RODRIGUEZ,
AVERTANO MALDONADO,
ANASTACIO HERNANDEZ, JULIO
CESAR GUERRERO
AND JUAN VILLARREAL,
PLAINTIFFS
v.
STEVE BEASLEY, E.J. VICK FARMING
CO., LLC, JEFFREY C. LEE FARMS,
INC., FRANK DAIL, RODNEY
JACKSON, RICKY WILSON, RICKY
BELL, ERNEST EVANS, CHESTER
PILSON AND THE NORTH CAROLINA
GROWERS ASSOCIATION, INC.,
DEFENDANTS.

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION
CASE NO: 04 CV 005067
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2ND AMENDED COMPLAINT FOR

DAMAGES, DECLARATORY,
AND INJUNCTIVE RELIEF

I. PRELIMINARY STATEMENT
1. Plaintiffs are nine Mexican farmworkers who came to North Carolina on visas
procured for them by Defendants, the nations largest agricultural labor broker and various
agricultural employers. Defendants controlled Plaintiffs visas and hence their ability to be
lawfully employed in the United States. Defendants took unusual advantage, exploiting
Plaintiffs on wages, working conditions, and, ultimately, through a blacklist shared among at
least one thousand employers, threatening Plaintiffs very livelihood.
2. Plaintiffs bring claims under the North Carolina Anti-Blacklisting statute, N.C.G.S.
14-355; the North Carolina Wage and Hour Act (NCWHA), N.C.G.S. 95-25.1 et seq.; the
North Carolina Racketeer Influenced and Corrupt Organizations Act (RICO), N.C.G.S. 75D-

1; and the North Carolina Retaliatory Employment Discrimination Act (REDA), N.C.G.S. 95240 et seq.
II. PARTIES

A. PLAINTIFFS
3. All the Plaintiffs are citizens of Mexico and were employed by the Defendants as
temporary foreign agricultural workers on visas which restricted them from working for any
other employer. Defendant North Carolina Growers Association (NCGA), on behalf of the
other Defendants, applied for these visas for the Plaintiffs and other workers.
4. Plaintiff Leoncio Acosta worked for Defendants Steve Beasley and NCGA in 2001
and 2002 and for another NCGA member and Defendant NCGA in 2003. Plaintiff Leoncio
Acosta was employed and an employee within the meaning of N.C.G.S. 95-25.2(3) and (4).
5. Plaintiff Luis Acosta worked for Defendants E.J. Vick Farming Co. LLC and NCGA
in 2002. Plaintiff Luis Acosta was employed and an employee within the meaning of N.C.G.S.
95-25.2(3) and (4).
6. Plaintiff Francisco Acua worked for Defendants Ricky Bell and NCGA in 2001.
Plaintiff Acua was employed and an employee within the meaning of N.C.G.S. 95-25.2(3)
and (4).
7. Plaintiffs Jose Eduardo Gauna, Fernando Rodriguez, and Avertano Maldonado
worked for Defendants Jeffrey Lee and NCGA in 2002. Plaintiffs Rodriguez, Maldonado and
Gauna were employed and were employees within the meaning of N.C.G.S. 95-25.2(3) and
(4).

8. Plaintiff Anastacio Hernandez worked for Defendants Frank Dail and NCGA in 2002.
Plaintiff Hernandez was employed and an employee within the meaning of N.C.G.S. 9525.2(3) and (4).
9. Plaintiff Julio Cesar Guerrero worked for Defendants Rodney Jackson, Ricky Wilson,
and NCGA in 2002. Plaintiff Guerrero was employed and an employee within the meaning of
N.C.G.S. 95-25.2(3) and (4).
10. Plaintiff Juan Villarreal worked for Defendants Ernest Evans, Chester Pilson, and
NCGA in 2001, 2002, and 2003. Plaintiff Villarreal was employed and was an employee within
the meaning of N.C.G.S. 95-25.2(3) and (4).
B. DEFENDANTS
11. At all times pertinent to this action, all grower Defendants were members of NCGA.
12. Defendant Steve Beasley is a resident of Wake County, where he was an employer of
Plaintiff Leoncio Acosta within the meaning of N.C.G.S. 95-25.2(5) and a person within the
meaning of N.C.G.S. 95-240(1).
13. Defendant E.J. Vick Farming Co., LLC (Vick Farming) has its primary place of
business and corporate offices in Nash County, where it was the employer of Plaintiff Luis
Acosta within the meaning of N.C.G.S. 95-25.2(5).
14. Defendant Ricky Bell is a resident of Franklin County, where he was the employer of
Francisco Acua within the meaning of N.C.G.S. 95-25.2(5).
15. Defendant Jeffrey C. Lee Farms, Inc. (Lee Farms) has its primary place of business
and corporate offices in Johnston County, where it was the employer of Plaintiffs Fernando
Rodriguez, Avertano Maldonado, and Jose Eduardo Gauna within the meaning of N.C.G.S. 9525.2(5) and a person within the meaning of N.C.G.S. 95-240(1).

16. Defendant Frank Dail is a resident of Pitt County, where he was the employer of
Plaintiff Anastacio Hernandez within the meaning of N.C.G.S. 95-25.2(5) and a person within
the meaning of N.C.G.S. 95-240(1).
17. Defendant Rodney Jackson is a resident of Sampson County, where he was the
employer of Plaintiff Julio Cesar Guerrero within the meaning of N.C.G.S. 95-25.2(5) and a
person within the meaning of N.C.G.S. 95-240(1).
18. Defendant Ricky Wilson is a resident of Franklin County, where he was the
employer of Plaintiff Julio Cesar Guerrero within the meaning of N.C.G.S. 95-25.2(5) and a
person within the meaning of N.C.G.S. 95-240(1).
19. Defendant Ernest Evans is a resident of Harnett County, where together with
Defendant Chester Pilson, he was the employer of Plaintiff Juan Villarreal within the meaning of
N.C.G.S. 95-25.2(5) .
20. Defendant Chester Pilson is a resident of Moore County, where, together with
Defendant Ernest Evans, he was the employer of Plaintiff Juan Villarreal within the meaning of
N.C.G.S. 95-25.2(5). At all relevant times, Defendant Pilson was a member of the Board of
Directors of the NCGA and a person within the meaning of N.C.G.S. 95-240(1).
21. Defendant North Carolina Growers Association, Inc. (NCGA) is a North Carolina
corporation doing business in the counties of residence of all the other Defendants. Defendant
NCGA was the employer of all Plaintiffs within the meaning of N.C.G.S. 95-25.2(5) and a
person within the meaning of N.C.G.S. 95-240(1).

III. FACTS
A. NCGA AND TEMPORARY FOREIGN AGRICULTURAL WORKERS
22. Since its inception in 1989, the North Carolina Growers Associations business has
been to provide North Carolina growers with a steady supply of workers with H-2A visas,
special non-immigrant visas reserved for temporary foreign agricultural workers, to harvest their
crops. NCGAs strategy has been to completely and systematically dominate H-2A workers by
means of economic incentives, threats, and penalties so as to maximize grower member
satisfaction with the workers and with NCGA.
23. By the terms of their visas, H-2A workers may be lawfully employed in the United
States only by the employer who sought the visa and by none other. H-2A visas are only for
temporary or seasonal agricultural work and may not be issued for any job opportunity whose
duration is anticipated to exceed one year. 20 C.F.R. 655.100(a) and (c)(2).
24. The U.S. Department of Labor (USDOL) oversees a regulatory scheme which is
supposed to ensure that U.S. workers are given preference over foreign workers for the positions,
and that, to the extent H-2A workers are employed, their employment does not adversely affect
the compensation and working conditions of U.S. workers. Donaldson et al. v. U.S. Dept of
Labor et al., 930 F. 2d 339, 341(4th Cir, 1991). See generally Alfred L. Snapp & Sons, Inc. v.
Puerto Rico ex rel. Barez, 458 U.S. 592, 594-596, 73 L. Ed. 2d 995, 102 S. Ct. 3260 (1982).
25. The goal of the regulations is to protect U.S. workers by preventing employers from
lowering standards through hiring foreign workers. Regulations found at 20 C.F.R. 655.100 et
seq. govern the contents of the job offers that must be made to both U.S. and temporary foreign
workers.

26. The regulations stipulate certain benefits that must be offered, including, but not
limited to: a) an hourly wage determined by USDOL for each contract which cannot be less than
the higher of the federal minimum wage, the prevailing wage, or a special wage rate known as
the Adverse Effect Wage Rate (AEWR); b) transportation and subsistence expenses for a
worker to return home (return transportation); and c) a guarantee of at least three-fourths of the
hours of work offered in the contract during the contract period (three-fourths guarantee). 20
C.F.R. 655.102.
27. As a part of the job offers, employers must attest that they will abide by the
assurances contained in the regulations 20 C.F.R. 655.103.
28. The job offers are incorporated by regulation and by operation of law into the
contracts under which workers are employed. 29 C.F.R. 501.10(d).
29. USDOLs Wage and Hour Division is empowered to enforce the work contracts,
including those provisions incorporated by regulation and operation of law, for both U.S. and H2A workers. 29 C.F.R. 510.15.
30. All of NCGAs H-2A workers are from Mexico and seek to come to the U.S. as
H-2A workers because of acute economic need. H-2A workers in North Carolina use their
wages for basic needs such as the care and feeding of their families and the education of their
children.
31. NCGA has accomplished its strategy of establishing and maintaining total
domination of H-2A workers through a system of controls which deprives the workers, such as
Plaintiffs, of their rights under North Carolina law and the law governing the H-2A program.
Key elements of this system include, among other things:

a. a blacklist, preventing from re-employment by other H-2 employers workers

who for whatever reason displease one of NCGAs members or NCGA;
b. overt hostility towards workers who exercise their rights, challenge their
treatment, or consult with attorneys;
c. manipulation of the work contract so that most workers do not receive the
benefits required to be provided in their contracts, including return
transportation;
d. enforced worker dependence upon transportation provided by NCGA
principals; and
e. a pervasive scheme of written waivers, which NCGA bilingual staff require,
coerce, or trick workers into signing at each critical phase of the workers
employment, and which NCGA then uses to defend against worker complaints
or three-fourths guarantee claims.
32. NCGA was formed in 1989 by Craig S. Eury and Kenneth White, both of whom
had been terminated from their positions as Rural Manpower representatives with the North
Carolina Employment Security Commission (NCESC) earlier that year.
33. Eury and White formed NCGA as a money-making venture, seeking to capitalize on
their knowledge of the federal regulations governing the Job Service and H-2A workers and their
connections with North Carolina growers made through their jobs with the NCESC.
34. NCGA charges growers using its services an annual membership fee and a fee for
each H-2A worker a grower wants.
35. NCGA grew steadily from 1989 to 2000, attaining approximately 1,000 members
and employing approximately 10,000 H-2A workers in 2000. In the intervening years, NCGA

employed additional former NCESC staff and subsumed another similar organization, gaining a
virtual monopoly on brokering H-2A workers for North Carolina farmers.
36. NCGA and its principals have controlled job opportunities for more than 30% of the
total number of H-2A workers employed in the United States over the last seven to ten years.
37. The principals of NCGA created and control other similar businesses brokering
H-2A and H-2B (non-agricultural temporary foreign workers, such as those engaged in planting
trees for reforestation or in seafood processing) workers. These businesses include the South
Carolina Growers Association (SCGA), the Kentucky-Tennessee Growers Association (KTGA),
and International Labor Management Corporation, Inc (ILMC).
38. The principals and employees of NCGA also used every opportunity presented by
their position as brokers of H-2A labor to enrich themselves further by extending their control
into other aspects of the lives of H-2A workers. Among other things, at all relevant times:
a) principals of NCGA were principals of NTEX Transit, LLC (NTEX), a for-profit
corporation which brokers transportation for H-2A workers to and from the Mexican
border. NCGA requires H-2A workers to utilize transportation arranged by NTEX as a
condition of employment. Upon information and belief, NCGA, SCGA, KTGA, and
ILMC all regularly used and use NTEXs services, for which NTEX receives a fee; and
b) one or more principals of NCGA were, upon information and belief, also the
principals of Manpower of the Americas, S.A. (sociedad anonima or anonymous
partnership, a form of business organization that, under Mexican law, permits some of the
principals to remain anonymous). Manpower of the Americas, or MOA, has
headquarters in Monterrey, Mexico, and selects H-2A and H-2B workers in Mexico for
NCGA, SCGA, KTGA, and ILMC, according to their instructions.

39. NCGA requires H-2A workers, as a condition of employment, to use transportation

arranged by NTEX and to use MOA for recruitment.
B. Plaintiffs
1. Leoncio Acosta
40. Plaintiff Leoncio Acosta regularly worked as an H-2A worker in North Carolina
from the mid-1990s.
41. In 2000, while working with an NCGA member, Leoncio Acosta suffered a workrelated injury. He received medical attention and, with the assistance of his counsel, filed a
workers compensation claim.
42. In 2001, Leoncio Acosta returned to North Carolina where NCGA assigned him to
work with Steve Beasley.
43. Leoncio Acosta informed an NCGA field representative about his work-related
injury. The NCGA representative was dismissive about his injury but eventually promised to get
him medical attention which never materialized.
44. Leoncio Acosta obtained another contract for the Christmas tree harvest and the
NCGA assigned him to an NCGA member in the northwestern part of the state.
45. Although Leoncio Acosta required further medical attention for his work-related
injury, he had to return to Mexico before he could have the surgery his doctor recommended.
46. On or around May 2, 2002, Craig. S. Eury, Executive Director of NCGA, signed,
under the penalty of perjury, an application for temporary foreign labor certification agreeing to
abide by assurances outlined in 20 C.F.R. 655.103. This application was submitted to USDOL
and received approval.

47. Pursuant to this approval, on information and belief, an H-2A visa was issued to
Leoncio Acosta.
48. In or around June 2002, Leoncio Acosta returned to North Carolina as an H-2A
worker and NCGA again assigned him to work with Beasley. When Leoncio Acosta first arrived
in North Carolina at the NCGAs headquarters, he was questioned by NCGA employees
concerning his injury and retention of counsel. The NCGA employees expressed disapproval of
Leoncio Acostas decision to retain counsel for his work-related injury.
49. In late July, Leoncio Acosta had the recommended surgery on his foot. A few days
later, against his wishes, NCGA transferred him to a labor camp of Lee Farms. The transfer
made him isolated because he was separated from his friends at the Beasley camp and lacked
easy access to a telephone.
50. Leoncio Acosta remained at the Lee Farms labor camp, recuperating from his
surgery. The Lee Farms labor camp lacked adequate heat.
51. His doctor released him to return to work in late October. Lee Farms and NCGA
refused to provide him any work at this time. Leoncio Acosta also requested another contract
for the Christmas tree harvest as in 2001, but NCGA denied his request.
52. Because of the lack of heat at Lee Farmss labor camp, Leoncio Acosta filed an
Occupational Safety and Health Act (OSHA) complaint with the North Carolina Department of
Labor (NCDOL).
53. Leoncio Acosta was not offered any work and returned to Mexico.
54. In January of 2003, Leoncio Acosta reached a settlement on his workers
compensation claim.

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55. In late May of 2003, Leoncio Acosta sought employment as an H-2 worker through
MOA. The MOA recruiter told him that he was fired and showed him his name on a list of
people who were terminated forever. The MOA recruiter denied Leoncio Acosta employment
because of NCGAs blacklist system.
56. Plaintiffs counsel intervened on his behalf and Leoncio Acosta returned to North
Carolina as an H-2A worker in mid-July of 2003. NCGA assigned him to work with another
NCGA member.
2. Luis Acosta
57. Plaintiff Luis Acosta came to North Carolina as an H-2A worker, first in 1999, and
again in 2001 and 2002.
58. In 2002, NCGA assigned him to work at Vick Farming, operated by Jerome Vick.
59. Luis Acosta learned that his minor daughter had become seriously ill in Mexico. He
informed Vick and his wife of this and told them that he needed to return to Mexico to be with
his daughter. Vick and his wife helped him purchase a plane ticket to return home.
60. In late spring of 2003, Luis Acosta sought employment as an H-2 worker through
MOA. Luis Acosta was denied employment based on the NCGA blacklist system.
3. Francisco Acua
61. Plaintiff Francisco Acua came to North Carolina as an H-2A worker for the first
time on or around April 20, 2001.
62. No less than 45 days before Acuas arrival, Craig. S. Eury, Executive Director of
NCGA, signed, under the penalty of perjury, an application for temporary foreign labor
certification agreeing to abide by assurances outlined in 20 C.F.R. 655.103 and stating that the

11

employment contract would end November 5, 2001. On information and belief, this application
was submitted to USDOL and received approval.
63. Pursuant to this approval, on information and belief, an H-2A visa was issued to
Acua.
64. NCGA initially assigned him to work for Defendant Ricky Bell. Acua and other
Bell workers were subsequently transferred to another NCGA member.
65. At this farm, Acua suffered a minor work-related injury which required medical
attention. Acua retained counsel to assist him in filing a workers compensation claim and to
obtain medical care. His counsel also notified NCGA that he was represented in this matter.
66. Upon notification that Acua was represented, an NCGA field representative came to
the labor camp to tell Acua that it was wrong for him to have consulted counsel.
67. Acua returned to work soon after his injury.
68. In or around October of 2001, he was informed that there was no more work and that
he had to return to Mexico.
69. Before leaving, Acua called NCGAs office and requested additional work. The
NCGA employee informed him that there was no more work available and that NCGA would
not pay his return transportation unless he stayed until the end date of the contract.
70. Plaintiff was required to pay his own return transportation. He paid an NCGA
representative a fare of one hundred dollars before boarding the bus for the border.
71. In the spring of 2002, Acua sought employment as an H-2 worker through MOA.
The MOA recruiter denied Acua employment based on NCGAs blacklist system.

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4. Jose Eduardo Gauna, Fernando Rodriguez and Avertano Maldonado

72. Plaintiff Fernando Rodriguez had worked each season as an H-2A worker in North
Carolina beginning in the mid-1990s. Plaintiff Avertano Maldonado had worked as an H-2A
worker in North Carolina each season from 1999. Plaintiff Jose Eduardo Gauna came to North
Carolina as an H-2A worker for the first time in 2002.
73. On or around February 28, 2002 and March 14, 2002, Craig. S. Eury, Executive
Director of NCGA, signed, under the penalty of perjury, an application for temporary foreign
labor certification agreeing to abide by assurances outlined in 20 C.F.R. 655.103 and stating
that the employment contract would end November 5, 2002. These applications were submitted
to USDOL and received approvals.
74. Pursuant to these approvals, on information and belief, H-2A visas were issued to
Rodrguez, Maldonado and Gauna.
75. In 2002, Plaintiffs Rodrguez, Maldonado and Gauna came to North Carolina as H2A workers and were assigned by NCGA to work for Lee Farms.
76. Lee Farms, through its foreman, controlled the pace of field work and would not
allow the workers, including Plaintiffs, to have a short rest period unless workers purchased beer
or carbonated beverages from him in the field. These sales were unlawful. He also denied
workers reasonable access to water in the field by keeping the drinking water on a moving
tractor.
77. Lee Farms foreman showed favoritism toward crew members who made more
purchases and gave such workers additional work even when there was not enough work for
every worker.

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78. On or around August 7, 2002, Gauna protested to Lee Farms foreman the policy of
requiring a purchase in order to take a break in the fields and Lee Farms foreman told him that
there was no more work for him. Soon thereafter, Lee Farms foreman tried to get Gauna to sign
a piece of paper but he refused. Lees foreman told him that he would be taken to the bus station
the next morning.
79. On or around August 7, 2002, an NCGA field representative visited the labor camp
and presented Gauna with a document to sign. Upon information and belief, this document was
a Voluntary Quit form. Gauna requested a transfer to another NCGA member. The NCGA
field representative tried to discourage him by telling him that the conditions might be worse, but
Gauna persisted and refused to sign the document, so the NCGA field representative told him
that he would try to get him transferred.
80. Gauna lost wages during the period that Lee and NCGA refused to give him work
and he was forced to wait for his transfer.
81. Gauna was eventually transferred by NCGA to another NCGA member.
82. Gauna then filed an OSHA complaint with the NCDOL about the lack of reasonable
access to water in the field and sale of beverages at Lees farm.
83. After his transfer to another NGCA member, Gauna worked until he completed his
assigned tasks. Although his contract period had not expired, there was no more work made
available to him for the remainder of the contract period.
84. NCGA required Gauna to pay for his own return transportation back to Mexico.
85. Meanwhile, Lee Farms foreman forbade workers to leave the camp without his
permission and expressed disapproval of their relationship with the priest at Episcopal
Farmworker Ministry. An NCGA field representative visited the labor camp and threatened

14

Rodriguez and Maldonado not to attend services at the Ministry and not to communicate with the
priest.
86. After Gauna was transferred, Rodriguez submitted a written complaint signed by
Maldonado and other workers about conditions in Lee Farms labor camp. Rodriguez made
copies and gave one to Jeffrey Lee. He also attempted to give a copy to an NCGA field
representative, who refused to accept it and told him that he and the other workers who signed
the complaint were troublemakers.
87. Thereafter, NCDOL investigated Gaunas OSHA complaint. The NCDOL
investigator interviewed Rodriguez within sight of Lees foreman. NCDOLs investigator found
that beer and carbonated beverages were being sold in the field and orally warned Jeffrey Lee
about this practice. NCDOL referred the complaint to the Wage and Hour Division of USDOL.
88. Immediately following the investigation, Lee Farms harassed Rodriguez and changed
his job assignment to more physically demanding work. The signers of the written complaint
were singled out for derision by Lee Farms foreman and the entire crew was told that all would
suffer because of their actions.
89. Rodriguez and Maldonado completed all assigned tasks on their last day of work, on
or about November 1, 2002. Rodriguez understood that he had no choice but to take
transportation arranged by NCGA or else he would face the consequences of not getting his
return transportation paid and not being able to return the following year. Rodriguez had to pay
out-of-pocket expenses while waiting for NCGA to arrange transportation. On or about
November 6, 2002, Rodriguez and Maldonado left for Mexico on an NTEX bus.

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90. In the spring of 2003, Rodriguez and Maldonado sought employment as H-2 workers
through MOA. The MOA recruiter denied Rodriguez and Maldonado employment based on
NCGAs blacklist system.
5. Anastacio Hernandez
91. Plaintiff Anastacio Hernandez worked as an H-2A worker in North Carolina each
season from 2000.
92. In 2000, Hernandez arrived in North Carolina as an H-2A worker and was assigned
by NCGA to work for an NCGA member. He suffered a work-related injury and sought counsel.
An NCGA field representative chastised Hernandez for consulting with a legal assistance
program and warned him against further contacts with the program.
93. In 2001, NCGA assigned Hernandez to another NCGA member, Defendant Frank
Dail.
94. On or around June 20, 2002, Plaintiff returned to North Carolina as an H-2A worker.
95. No less than 45 days before Hernandezs arrival, Craig. S. Eury, Executive Director
of NCGA, signed, under the penalty of perjury, an application for temporary foreign labor
certification agreeing to abide by assurances outlined in 20 C.F.R. 655.103 and stating that the
employment contract would end November 5, 2001. On information and belief, this application
was submitted to USDOL and received approval.
96. Pursuant to this approval, on information and belief, an H-2A visa was issued to
Hernandez.
97. NCGA assigned him again to work for Dail.
98. On or about August 13, 2002, Hernandez suffered a second work-related injury. On
or about September 18, 2002, Hernandez underwent surgery for this injury.

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99. Hernandezs doctor released him to return to work at the end of September. Dail
refused to provide him any work.
100. Although Hernandezs contract period had not expired, no more work was made
available to him for the remainder of the contract period. NCGA required him to pay his return
transportation and to take NTEX transportation.
101. In the spring of 2003, Hernandez sought employment as an H-2 worker through
MOA. The MOA recruiter denied Hernandez employment based on NCGAs blacklist system.
102. Hernandez filed a REDA complaint with NCDOL. On or around December 19,
2003, during the NCDOL investigation of Hernandezs, NCGA, through its counsel, produced a
Voluntary Resignation form which they claimed Hernandez had signed, and alleged the
document meant that he had waived his contract rights. On information and belief, his signature
was forged on the form.
6. Julio Cesar Guerrero
103. Plaintiff Julio Cesar Guerrero had worked as an H-2A worker in North Carolina
each season from 2001.
104. In June of 2001, Guerrero arrived in North Carolina as an H-2A worker and was
assigned by NCGA to work for Anthony Smith.
105. Smith denied Guerrero and one of his co-workers access to medical attention. The
co-worker suffered a high fever and Guerrero suffered from a work-related injury due to
inadequate protective gear.
106. Guerrero trekked from the Smith labor camp to the nearest public phone and called
an ambulance for his co-worker. He also called a legal assistance program and obtained counsel.
Staff from the legal assistance program consulted with Guerrero at the labor camp. Upon

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learning of their presence, Smith and his wife were hostile and threatened Guerrero that he was
not allowed to have visitors, especially staff from a legal assistance program.
107. The Smiths behavior caused Guerrero to feel unsafe at Smiths labor camp so that
he requested through counsel that NCGA transfer him to another NCGA member.
108. Guerrero worked for another NCGA member where he finished his contract and
returned to Mexico.
109. In the spring of 2002, Guerrero sought employment as an H-2 worker through
MOA. The MOA recruiter denied Guerreros employment based on NCGAs blacklist system.
Guerreros counsel negotiated his return as an H-2A worker in North Carolina.
110. On or around April 18, 2002, Craig. S. Eury, Executive Director of NCGA, signed,
under the penalty of perjury, an application for temporary foreign labor certification agreeing to
abide by assurances outlined in 20 C.F.R. 655.103. This application was submitted to USDOL
and received approval.
111. Pursuant to this approval, on information and belief, an H-2A visa was issued to
Guerrero.
112. In 2002, NCGA assigned Guerrero to work for Defendant Rodney Jackson.
113. Jackson unlawfully denied workers reasonable access to water in the fields. The
only water provided to workers in the field was attached to a moving truck. Because no cups
were provided, the workers had to place their mouths under the spigot while keeping pace with
the moving vehicle if they needed a drink of water.
114. Guerrero complained to a Jackson supervisor about the drinking water violations.
115. Guerrero also filed an OSHA complaint with the NCDOL.

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116. Thereafter, Jackson presented to Guerrero a written Warning Notice stating that
workers must follow supervisors instructions. Guerrero refused to sign the warning notice.
117. Jackson then gave him his paycheck and fired him. Jackson had Guerrero taken to
the bus station to send him back to Mexico.
118. From the bus station, Guerrero contacted his counsel. Guerreros counsel
negotiated his transfer to another NCGA member, Defendant Ricky Wilson.
119. NCDOL investigated and substantiated Guerreros OSHA complaint about Jackson.
120. On or around August 7, 2002, an NCGA representative came to the Wilson labor
camp and presented Guerrero with a warning notice stating that Plaintiff had engaged in poor
conduct. Guerrero refused to sign the warning notice.
121. Plaintiff Guerrero continued to work for Wilson until all the work was completed.
He returned to Mexico on transportation arranged by NCGA.
122. In December of 2002, Guerrero, through his counsel, sought and subsequently
received his unpaid wages.
123. In the spring of 2003, Guerrero sought employment as an H-2 worker through
MOA. The MOA recruiter told him that he had only been allowed to return in 2002 on the
condition that he makes no complaints. The MOA recruiter stated that Guerrero was being
punished since had made complaints. The MOA recruiter denied Guerrero employment based on
NCGAs blacklist system.
7. Juan Villarreal
124. Plaintiff Juan Villarreal had worked as an H-2A worker in North Carolina each
season from about 1997.

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125. In 2002, Villarreal arrived in North Carolina as an H-2A worker and was assigned
by NCGA to work for Chester Pilson. On April 17, 2002, Villarreal suffered a work-related
injury. Pilson acknowledged notice of the injury.
126. In May 2003, Plaintiff returned to North Carolina as an H-2A worker.
127. No less than 45 days before Villarreals arrival, Craig. S. Eury, Executive Director
of NCGA, signed, under the penalty of perjury, an application for temporary foreign labor
certification agreeing to abide by assurances outlined in 20 C.F.R. 655.103. On information
and belief, this application was submitted to USDOL and received approval.
128. Pursuant to this approval, on information and belief, an H-2A visa was issued to
Villarreal.
129. NCGA assigned him to work for Ernest Evans and Chester Pilson.
130. Villarreal sought additional medical treatment for problems stemming from his
2002 injury. Villarreal retained counsel to represent him on his workers compensation claim.
131. On August 13, 2003, Villarreals counsel informed NCGA in writing that he was
represented. On September 3, 2003, Villarreals counsel informed NCGA by fax that she was
arranging medical treatment.
132. On or around September 3, 2003, an NCGA representative went to the field where
Villarreal was working and chastised him for retaining counsel. The NCGA representative
ordered him to leave the field and drove him to NCGAs headquarters, where, several NCGA
employees interrogated Villarreal regarding his workers compensation claim and his retention
of counsel. NCGA employees told Villarreal he would have problems and would not be able
to come back in other years to work.

20

133. That evening, Pilson came to the labor camp where Villarreal was housed and
shouted angrily at him.
134. Subsequently, an NCGA representative returned to Villarreals living quarters
threatening and pressuring him to sign a piece of paper. Villarreal is illiterate and could not read
what he was being asked to sign so he refused to sign.
135. Pilson and Evans stopped offering work to Villarreal.
136. Villarreal filed a REDA complaint with NCDOL on or around September 11, 2003,
and sought a transfer with another NCGA member through counsel.
137. On or around September 26, 2003, an NCGA field representative went to visit
Villarreal at Evans labor camp and told him there was no more work for him.
138. On or around September 29, 2003, Evans demanded Villarreal accompany him with
his belongings.
139. Evans took Villarreal to the NCGA headquarters where several NCGA employees
interrogated Villarreal for a second time. These NCGA employees told Villarreal that his
lawyers had dropped his case and abandoned him.
140. NCGA offered Villarreal money for his return transportation to Mexico if he would
sign a document they presented to him. Under duress, Villarreal drew his memorized name on
the document and NGCA gave him his return transportation and allowed him to board the bus
back to Mexico. Villarreal did not write anything else on the document.
141. Upon information and belief, this document was a Voluntary Quit form which
stated that Villarreal had voluntarily resigned from his H-2A employment contract and done so
after being offered additional work for the balance of the employment contract.

21

142. On or around October 29, 2003, in the course of NCDOLs investigation of his
REDA complaint, NCGA, through its counsel, produced this document which Villarreal signed.
143. The document had additional handwritten language, which Mr. Villarreal did not
write, stating that he had resigned his employment because of family sickness.
144. On or around October 30, 2003, Villarreal filed a complaint with the Wage and
Hour Division of USDOL.
C. BLACKLISTING
145. At all relevant times, Defendants have participated in a blacklisting system, led and
managed by Defendant NCGA, which has resulted in many thousands of individuals being
foreclosed from employment with at least a thousand employers using temporary foreign labor.
146. The dimensions and cruelty of this blacklisting system are enormous, affecting
many thousands of impoverished workers with few other employment opportunities.
147. Blacklisting is prohibited under the laws of the state of North Carolina.
148. The blacklisting system utilized by NCGA and the grower Defendants has
prevented many workers from obtaining employment for reasons including, but not limited to:
a. a work-related injury or disease;
b. illness in a workers family, necessitating his return to his home;
c. other family emergencies, necessitating a workers return to his home;
d. failing to purchase return transportation through NTEX; and
e. leaving prior to the end of the contract period when no work was offered
to the worker.
149. Defendants deliberately reinforce the message of the blacklisting system as a labor
management tool, in an effort to maintain a totally dependent workforce and to minimize

22

complaints of violations of the contracts or the law governing working and living conditions for
workers.
150. At all relevant times, NCGA presented each member grower, at the end of the
season, with a questionnaire listing each H-2A worker initially assigned to him the prior season
by NCGA.
151. At all relevant times, this questionnaire had boxes for the grower to place an X in
one of three categories for each worker: preferred; pool; or no return.
152. Prior to sending the questionnaires to each grower, NCGA would sometimes premark certain workers as no return.
153. After the growers returned the completed questionnaires, NCGA melded those
categorizations with information NCGA kept about individual workers.
154. Each year, NCGA compiled a list of the workers to be recalled (the preferred
worker list) and provided that information to MOA.
155. Each year, NCGA also compiled a list of workers who were ineligible to return (the
no return list) and provided that information to MOA.
156. Each year, NCGA also compiled a list of workers with the pool designation (the
pool list) and provided that information to MOA. NCGA has had a policy to not utilize any
workers from the pool list, unless NCGA gives specific instructions otherwise.

This policy

favored new workers over pool workers.

157. Placement on either NCGAs no return list or pool list prevents employment
with at least one thousand (1000) other employers in the U.S. who employ temporary foreign
workers.

23

158. At all relevant times, NCGA has communicated, by word or writing, how individual
workers are categorized to MOA, and MOA has selected workers to be employed by NCGA and
NCGA member growers as H-2A workers in accordance with these instructions from NCGA.
159. Upon information and belief, workers who are blacklisted from employment with
NCGA members are also blacklisted from employment with SGCA, KTGA, and ILMC.
D. WAGE AND HOUR ACT VIOLATION
160. At all times that Plaintiffs were employed or jointly employed by NCGA and/or one or
more grower members of the NCGA, NCGA possessed and exercised the power and authority to
direct, control, and supervise the work that the Plaintiffs performed in various locations within
North Carolina.
161. NCGA authorized MOA to locate, recruit, and hire Mexican nationals for employment
as H-2A workers by NCGA and its member growers at all times relevant to this complaint.
162. MOA recruited the Plaintiffs in their home villages and neighboring towns in rural
Mexico. The Plaintiffs each paid a mandatory recruiting fee to MOA to be included among the
group of individuals selected to be H-2A workers on the operations of the members of NCGA.
163. After recruitment, MOA instructed the Plaintiffs to report to the United States
Consulate in Monterrey, Nuevo Leon, Mexico, to obtain an H-2A visa. The Plaintiffs paid their
own travel and subsistence expenses for the trip to Monterrey.
164. . Plaintiffs each paid a visa application fee of $65 in 2002, and Plaintiffs Leoncio
Acosta and Villarreal each paid a visa application fee of $100 in 2003, as specified in 22 C.F.R.
22.1. In addition, Plaintiffs each paid $100 as a visa reciprocity fee each year for issuance of an H2A visa, as set forth in 9 FAM Appendix C.

24

165. In 2003, MOA required Juan Villarreal to spend two nights in Monterrey to obtain his
H-2A visa. Villarreal incurred expenses for his overnight stay and subsistence during this time.
166. In 2003, MOA required Leoncio Acosta to make more than one trip to Monterrey to
obtain his visa.
167. Following the issuance of their H-2A visas, the Plaintiffs boarded charter buses
organized by MOA for their trip to the U.S.-Mexico border. The Plaintiffs paid their own travel and
subsistence expenses for this trip.
168. When they entered the United States, the Plaintiffs each paid a $6.00 fee to U.S.
immigration authorities for the issuance of INS Form I-94, in accordance with 8 C.F.R. 103.7.
169. After crossing the border, the Plaintiffs boarded a different charter bus for their trips to
North Carolina. The Plaintiffs each paid $100 to NTEX for their bus fare. Plaintiffs paid their own
subsistence living expenses during their travel to North Carolina.
170. NCGA reimbursed Plaintiffs for the cost of their local transportation from their homes
to Monterrey, Nuevo Leon, inbound transportation between Monterrey, Nuevo Leon and NCGAs
headquarters in Vass, North Carolina, and their subsistence living expenses of $9 per day for each
day of the trip from Monterrey to Vass. This reimbursement was only made after Plaintiffs had
completed the first 50 percent of the contract period.
171. At no time did NCGA or the grower Defendants reimburse Plaintiffs for the visa
application or issuance fees, recruiting fees, lodging as referred to in 165, extra travel costs as
referred to in 166, nor the border crossing fees.
172. Neither NCGA nor the grower Defendants reimbursed Plaintiffs for any expenses in
the first workweek.

25

173. The transportation, subsistence, lodging as referred to in 165, extra travel costs as
referred to in 166, visa, recruitment, and border crossing expenses were an incident of and
necessary to the Defendants' employment of Plaintiffs.
174. The charges for transportation, subsistence, lodging as referred to in 165, extra
travel costs as referred to in 166, visa, recruitment, and border crossing were primarily for the
benefit of the Defendants.
175. The Plaintiffs had an express, implied, or constructive agreement with the Defendants
that one or more of the Defendants would compensate them, free and clear, at the adverse effect
wage rate (as defined by 20 C.F.R. 655.102(b)(9) and 655.107) for any actual hours of work that
the Plaintiffs performed for one or more of the Defendants.
176. In 2002, the adverse effect wage rate for Plaintiffs was $7.53 per hour.
177. In 2003, the adverse effect wage rate for Plaintiffs was $7.75 per hour.
178. By failing to make the wage reimbursements during the first workweek and by
requiring the charges described in 162-169, the Defendants did not comply with the express,
implied, and/or constructive agreement described in 175 above.
179. As a result of Defendants failure to reimburse Plaintiffs for the transportation,
subsistence, visa, lodging as referred to in 165, extra travel costs as referred to in 166,
recruitment and border crossing expenses during the first workweek, the Plaintiffs were not paid all
of their wages when due at the wage rate that the Defendants had agreed to pay them during the first
workweek they were employed.

26

E. NORTH CAROLINA RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (NC

RICO)
180. NC RICO became effective on October 1, 1986 with the purpose and intent to deter
organized unlawful activity, including the prevention of unjust enrichment of those engaged in
such unlawful activity. See N.C.G.S. 75D-1 et seq.
181. NC RICO allows any innocent person, who is injured by reason of a person
conducting an enterprise involving a pattern of racketeering activity, to have a cause of action to
recover their damages. N.C.G.S. 75D-8(c).
182. NCGA conducted an organized and unlawful worker exploitation scheme for the
purpose of obtaining pecuniary gain which injured the Plaintiffs. NCGA fraudulently obtained
visas to employ H-2A workers, making it possible for NCGA to tightly control these workers
through a series of intimidating acts, threats and retaliatory conduct, all for personal profit.
183. In order to perpetrate this unlawful worker exploitation scheme, NCGA knowingly
and willfully committed multiple acts of racketeering activity under N.C.G.S. 75D-3(c)(1)
(blacklisting in violation of N.C.G.S. 14-355 and extortion in violation of N.C.G.S. 14118.4).
184. In order to perpetrate this unlawful worker exploitation scheme, NCGA knowingly
and willfully committed multiple acts of racketeering activity under N.C.G.S. 75D-3(c)(2),
which references acts in 18 U.S.C. 1961(1) (tampering with a witness in violation of 18 U.S.C.
1512 and visa fraud in violation of 18 U.S.C. 1546).
1. Blacklisting - Violation of N.C.G.S. 14-355
185. NCGA knowingly and willfully created a blacklisting system of H-2A workers who
cannot return to work in North Carolina with the purpose of punishing thousands of H-2A

27

workers for various kinds of conduct including asserting their rights under the employment
contract.
186. NCGAs blacklisting system looms over these workers as an effective threat to
submit to NCGAs authority. NCGAs blacklisting system, therefore, is an essential tool for
controlling the H-2A workers with the purpose of maximizing NCGAs pecuniary gain from
these workers.
187. At all relevant times, NCGA operated the blacklisting system as described in
145-159.
188. As a result of the blacklisting system, thousands of H-2A workers are deprived of
the opportunity to work with at least one thousand (1000) other U.S. employers who employ
temporary foreign workers.
189. As described in 40-56 (Leoncio Acosta), 57-60 (Luis Acosta), 61-71 (Acua),
72-90 ( Rodrguez & Maldonado), 103-123 (Guerrero), and 91-102 (Hernandez), these Plaintiffs
were discharged by NCGA.
190. As described in 40-56 (Leoncio Acosta), 57-60 (Luis Acosta), 61-71 (Acua),
72-90 ( Rodrguez & Maldonado), 103-123 (Guerrero), and 91-102 (Hernandez), NCGA
prevented and/or attempted to prevent, by word and writing, these Plaintiffs from obtaining
employment with other employers in violation of N.C.G.S. 14-355.
191 . As described in 40-56 (Leoncio Acosta), 57-60 (Luis Acosta), 61-71 (Acua),
72-90 ( Rodrguez & Maldonado), 103-123 (Guerrero), and 91-102 (Hernandez), as a result of
the blacklisting system, these Plaintiffs suffered economic injuries based on lost wages.

28

2. Tampering with Witnesses and Documents - Violation of 18 U.S.C. 1512

192. NCGA knowingly and willfully, after being informed that an H-2A worker has
asserted his rights under his employment contract, used intimidation, threats and/or generated
falsely altered documents to influence, delay or prevent the potential testimony of that H-2A
worker.
193. Complaints of an H-2A worker raised under his employment contract can be
investigated and enforced through the administrative complaint system of the Wage and Hour
Division of USDOL. 29 C.F.R. 501.1(c).
194. These rights in the H-2A employment contract include, among others, the right to
field sanitation, housing conditions in compliance with state and federal law, and workers
compensation. Under this employment contract, retaliation against H-2A workers who have
asserted these rights or consulted a legal assistance program about these rights is strictly
prohibited.
195. When H-2A workers first arrive in North Carolina, however, the NCGA tells them
they should not consult with a legal assistance program and that if they have problems they
should contact NCGA. NCGA instructs workers, through writing and orally, that they may lose
their jobs if they consult with a legal assistance program.
196. If workers do call NCGA with a complaint, an NCGA field representative will
frequently visit the workers at the camp or in the field. NCGA field representatives also make
these visits in response to grower requests to NCGA or when NCGA has reason to believe a
worker has consulted with a legal assistance program.
197. These visits by the NCGA representatives sometimes involve intimidation and
threats in order to stifle the H-2A workers potential administrative complaint under the

29

employment contract. At the same time, the NCGA representatives may try to obtain signatures
of these H-2A workers on documents with false information.
198. As described in 75-87 (Gauna), 112-123 (Guerrero), 97-102 (Hernandez), and
126-144 (Villarreal), NCGA knowingly and willfully committed multiple predicate acts of
tampering with a witness in violation of 18 U.S.C. 1512.
199. As described in 75-87 (Gauna), 112-123 (Guerrero), and 126-144 (Villarreal),
NCGA knowingly intimidated, threatened, corruptly persuaded and/or engaged in misleading
conduct, or attempted to do so, with the intent to influence and/or prevent the testimony of these
Plaintiffs about their complaints under their H-2A employment contract.
200. As described in 97-102 (Hernandez) and 130-144 (Villarreal), NCGA
wrongfully altered documents, by adding false and/or forged information, with the intent to
impair its integrity, and/or otherwise attempted to obstruct, influence and/or impede the
complaints of these Plaintiffs under their H-2A employment contract.
201. As described in 75-87 (Gauna), 112-123 (Guerrero), 97-102 (Hernandez), and
126-144 (Villarreal), NCGAs intimidation, threats, misleading conduct, alteration of documents
and/or attempts to obstruct the complaints of these Plaintiffs caused them economic injuries
based on lost wages, lost three-fourths guarantee claims and out-of-pocket expenses related to
pursuing their complaints.
3. System of Reprisals - Visa Fraud Violation of 18 U.S.C. 1546
202. NCGA knowingly and willfully devised a scheme to defraud USDOL, immigration
authorities and the U.S. Department of State (USDOS) by making materially false statements
that they would not participate in retaliatory conduct against workers, in order to continually
obtain foreign H-2A workers.

30

203. These statements were made despite the fact that NCGAs practice is to blacklist,
discharge, discriminate against and intimidate H-2A workers who had, with just cause, raised
their rights under their employment contract. Without these false statements, however, NCGA
would not be able to obtain H-2A workers nor would they be able to profit from the control of
these workers.
204. Federal immigration law authorizes agricultural employers to obtain H-2A visas
through an application process. 8 U.S.C. 1188. The H-2A application consists of several parts.
205. First, an application for temporary foreign labor certification must be submitted to
the USDOL and the appropriate state agency, consisting of: (1) Application for Alien
Employment Certification, Form ETA 750; and (2) Agricultural and Food Process Clearance
Order, Form ETA 790. USDOLs approval of this application for temporary foreign labor
certification verifies the need for foreign labor and the appropriateness of the wages and working
conditions offered.
206. Second, the approved labor certification, along with the Petition for a
Nonimmigrant Worker, Petition I-129, is submitted to immigration authorities (currently U.S.
Citizenship and Immigration Services). The approved labor certification determines the number
of positions and period of employment for issuance of the H-2A visas.
207. Third, upon approval of the Petition, the employer sends the notice of approval to
the USDOS and one of its consulate offices issues the visas in the home country of the H-2A
worker.
208. Each H-2A application must include an agreement to abide by assurances outlined
in 20 C.F.R. 655.103.

31

209. In particular, the application for temporary foreign labor certification would not be
approved without the inclusion of the assurances as required by 20 C.F.R. 655.101(b)(2).
210. The applicant must certify to abide by assurances outlined in 20 C.F.R.
655.103(g) which prohibit retaliation against H-2A workers for having exercised or asserted their
rights provided by the H-2A program. This provision states:
The employer shall not intimidate, threaten, restrain, coerce, blacklist, discharge,
or in any manner discriminate against, and shall not cause any person to
intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner
discriminate against, any person who has with just cause:
(1) Filed a complaint under or related to 216 of the INA (8 U.S.C. 1186), or
this subpart or any other DOL regulation promulgated pursuant to 216 of the
INA;
(2) Instituted or caused to be instituted any proceeding under or related to 216
of the INA, or this subpart or any other DOL regulation promulgated pursuant to
216 of the INA (8 U.S.C. 1186);
(3) Testified or is about to testify in any proceeding under or related to 216 of
the INA (8 U.S.C. 1186), or this subpart or any other DOL regulation
promulgated pursuant to 216 of the INA;
(4) Consulted with an employee of a legal assistance program or an attorney on
matters related to 216 of the INA (8 U.S.C. 1186), or this subpart or any other
DOL regulation promulgated pursuant to 216 of the INA; or
(5) Exercised or asserted on behalf of himself/herself or others any right or
protection afforded by 216 of the INA (8 U.S.C. 1186), or this subpart or any
other DOL regulation promulgated pursuant to 216 of the INA.
211. In the years prior to events alleged in this complaint, NCGA participated in
prohibited retaliation by: blacklisting, discharging, discriminating against, harassing and
intimidating workers who had either asserted their rights or consulted a legal assistance program
about their rights afforded under their H-2A employment contract.

32

212. During these years, NCGA intimidated, harassed, restrained, blacklisted, discharged
and/or discriminated against workers who, with just cause, had complained about various rights,
such as field sanitation, housing conditions and wages.
213. During these years, NCGA had also intimidated, harassed, restrained, blacklisted,
discharged and/or discriminated against workers who, with just cause, had consulted a legal
assistance program about their contract rights.
214. In the years pertinent to this complaint, NCGA similarly submitted fraudulent H-2A
applications for temporary foreign labor certification in order to obtain workers.
215. Notwithstanding NCGAs agreement to abide by assurances in all submitted H-2A
applications during the years pertinent to this complaint, NCGA knew from its past practices that
it would not abide by assurances with all H-2A workers.
216. With all the H-2A applications submitted during the years pertinent to this
complaint, NCGA signed and submitted under the penalty of perjury, 28 U.S.C. 1746, that it
would abide by assurances outlined in 20 C.F.R. 655.103(g).
217. As described in 61-71 (Acua), 40-56 (Leoncio Acosta), 91-102 (Hernandez),
102-123 (Guerrero), 72-90 (Maldonado, Gauna & Rodriguez), and 124-144 (Villarreal), NCGA
knowingly and willfully made, under the penalty of perjury, material false statements to abide by
assurances in 20 C.F.R. 655.103(g), in multiple H-2A applications filed pursuant to the
immigration laws, in order to obtain foreign labor through the H-2A program in violation of 18
U.S.C. 1546.
218. As described in 61-71 (Acua), 40-56 (Leoncio Acosta), 91-102 (Hernandez),
102-123 (Guerrero), 72-90 (Maldonado, Gauna & Rodriguez), and 124-144 (Villarreal), NCGA

33

knowingly presented these H-2A applications filed pursuant to the immigration laws, containing
material false statements, under the penalty of perjury, to abide by assurances in 20 C.F.R.
655.103(g), in order to obtain foreign labor through the H-2A program in violation of 18 U.S.C.
1546.
219. As described in 61-71 (Acua), 40-56 (Leoncio Acosta), 91-102 (Hernandez),
102-123 (Guerrero), 72-90 (Maldonado, Gauna & Rodriguez), and 124-144 (Villarreal),
NCGAs wrongful actions of visa fraud caused these Plaintiffs economic injuries based on lost
wages.
4. Return Transportation Scheme - Visa Fraud Violation of 18 U.S.C. 1546
220. NCGA knowingly and willfully devised a scheme to defraud USDOL, immigration
authorities and USDOS by making materially false statements about the period of employment
with the purpose of depriving thousands of H-2A workers of their rights to return transportation.
These false statements about the duration of thousands of jobs made it impossible for a majority
of H-2A workers to complete their contracts.
221. As a result, NCGA profited by depriving thousands of H-2A workers of their return
transportation.
222. In order to obtain H-2A visas, an employer must file an H-2A application as
described in 204-207.
223. On the H-2A application, the employer is required to specify the dates of
employment. In particular, the employer is required to do so on the application for temporary
foreign labor certification, Form ETA 750 and Form ETA 790.

34

224. If the labor certification is approved, the certifying officer will approve the
certification for this period of employment. The immigration authorities rely on this stated
period of employment in issuing its approval of Form I-129, specifying the time period of the H2A visas.
225. The USDOL cannot process an application unless the duration of employment is
provided as it is an essential item for labor certification to be accepted for consideration under
20 C.F.R. 655.100(b). ETA Handbook No. 398, p. I-10.
226. From 1998 through 2002, virtually all labor certifications submitted by the NCGA
for non-Christmas Tree work, were submitted with an ending date of November 5th of each year.
The period of employment dates specified in the H-2A application are sworn to under the penalty
of perjury, 28 U.S.C. 1746.
227. Notwithstanding that representation, during these years, NCGA did not intend to
have work for a majority of its H-2A workers through November 5th of each year.
228. On information and belief, during these years, only approximately thirty percent
(30%) of the H-2A worker positions could have conceivably lasted through November 5th.
229. USDOL approved these fraudulent labor certifications submitted by NCGA during
these years, immigration authorities approved the I-129 petition, and the U.S. DOS issued H-2A
visas for workers for employment by producer members.
230. During these years, producer members paid NCGA approximately $200 per worker
to pay the workers return transportation. NCGA deposited this money into a separate bank
account.

35

231. During these years, on information and belief, when thousands of workers were
unable to complete the contract, they did not receive return transportation. Producer members
were not reimbursed for unclaimed transportation. As a result, NCGA, on information and
belief, obtained hundreds of thousands of dollars over the years from this return transportation
scheme.
232. As described in 61-70 (Acua), 72-84 (Gauna), and 91-100 (Hernandez), NCGA
knowingly and willfully made, under the penalty of perjury, material false statements about the
period of employment for the work contract, in these H-2A applications filed pursuant to the
immigrations laws and obtained foreign labor through the H-2A program in violation of 18
U.S.C. 1546.
233. As described in 61-70 (Acua), 72-84 (Gauna), and 91-100 (Hernandez), NCGA
knowingly presented these H-2A applications filed pursuant to the immigration laws, containing
material false statements, under the penalty of perjury, about the period of employment for the
work contract and obtained foreign labor through the H-2A program in violation of 18 U.S.C.
1546.
234. As described in 61-70 (Acua), 72-84 (Gauna), and 91-100 (Hernandez), as a
result of the visa fraud, these Plaintiffs suffered economic injuries based on NCGAs refusal to
furnish these Plaintiffs with return transportation.
5. NTEX Monopoly - Violation of N.C.G.S. 14-118.4
235. NCGA devised an extortion scheme to force H-2A workers to take return
transportation with NTEX with the wrongful purpose of making a profit at the expense of
thousands of workers. NTEX had a virtual monopoly over the return transportation market for
all H-2A workers in North Carolina.
36

236. Some of the principals of NCGA are also the principals of NTEX.
237. In the years pertinent to this complaint, the NCGA threatened H-2A workers that
they must take NTEX transportation to return to Mexico or else they would not be able to return
the following season and/or would not receive money for return transportation.
238. During these years, H-2A workers learned during the NCGA orientation and in later
contacts with NCGA employees that they must take NTEX return transportation.
239. On information and belief, fares for comparable trips with commercial common
carriers are substantially less. Luggage restrictions for commercial common carriers are also
more generous.
240. Furthermore, the H-2A employment contract specifies that the cost of transportation
shall be no less (and shall not be required to be more) than the most economical and reasonable
similar common carrier transportation charges for the distances involved. 20 C.F.R. .
655.102(b).
241. During these years, some H-2A workers had to pay NTEX for their own return
transportation and/or extra luggage charges.
242. In the years pertinent to this complaint, some H-2A workers, instead of taking a
commercial common carrier after there was no more work available, were forced to wait several
days while NCGA arranged NTEX transportation.
243. As a result, thousands of H-2A workers had to pay a for a more expensive NTEX
return transportation fare, NTEX luggage charges and/or out-of-pocket expenses for having to
wait for NTEX transportation to be arranged.
244. NCGA, on information and belief, has profited thousands of dollars during these
years from this NTEX monopoly.

37

245. As described in 89 (Rodriguez) and 100 (Hernandez) above, NCGA threatened

those Plaintiffs, with the wrongful intent of making them take NTEX transportation, in violation
of 18 U.S.C. 1951 or N.C.G.S. 14.118.4.
246. As described in 89 (Rodriguez) and 100 (Hernandez) above, as a result of
NCGAs NTEX extortion scheme, Plaintiffs z suffered economic injuries based on the
difference between the NTEX fare and that of a common carrier and/or out of pocket expenses
for having to wait for NTEX transportation.
6. Voluntary Resignation Scheme - Violation of N.C.G.S. 14-118.4
247. NCGA devised an extortion scheme to force H-2A workers to sign documents
stating that they were quitting of their own free will and waiving any rights under their
employment contract (voluntary resignation). NCGA threatened H-2A workers into signing
the voluntary resignation with the wrongful purpose of depriving thousands of workers of their
rights under their employment contract.
248. Thousands of H-2A workers have signed these forced resignation forms which
stated that they have voluntarily quit their jobs.
249. While the format of the resignation forms has sometimes differed, they contain
common language. All state that the H-2A worker has voluntarily resigned his job under the
H-2A employment contract and that the worker has declined an offer of additional work during
the balance of the contract
250. Most commonly, the NCGA forces H-2A workers into signing resignation forms by
threatening that workers who refuse to sign will be blacklisted.
251. H-2A workers are pressured to sign resignation forms in various situations,
including but not limited to:
38

a) when they leave before the end date of the employment contract
because no more work is available; or
b) after having raised complaints under their employment contract.
252. NCGA induces H-2A workers to sign resignation forms with the pecuniary purpose
of depriving workers of legal claims they may have under their employment contract.
253. As a result, many thousand H-2A workers have signed resignation forms depriving
them of their rights afforded under their employment contract.
254. As described in 139-143, NCGA threatened Plaintiff Villarreal, with the
wrongful intent of making him sign a resignation form and thereby abandoning his three-fourths
guarantee claim, in violation of N.C.G.S. 14-118.4.
255. As described in 139-143, Plaintiff Villarreal suffered economic injuries based on
lost wages and his three-fourths guarantee claim.
7. Pattern of Racketeering Activity
256. The predicate acts of criminal racketeering activity described above constitute a
pattern of racketeering activity as defined in RICO, N.C.G.S. 75D-3(b). Since 2001 to
present, NCGA committed multiple incidents of racketeering activity of visa fraud, extortion,
tampering with witnesses and blacklisting against Plaintiffs and, on information and belief,
against thousands of similarly situated H-2A workers.
257. The incidents of racketeering activity described above are interrelated in the
following ways. They had common participants (NCGA, its officers and employees) and
common victims (Plaintiffs). They also each had the same purpose and result of economically
benefiting NCGA at the expense of Plaintiffs. Finally, they were interrelated in that, without the

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acts of visa fraud, blacklisting, witnesses tampering and extortion committed by the common
methods of intimidation, threats and misleading conduct, they could not have successfully
exploited Plaintiffs out of their rights under their employment contract.
258. Since at least 2001, these acts of racketeering activity described above have been a
part of NCGAs regular conduct of business, and therefore, imply a threat of continued
racketeering activity.
F. LEE FARMS WAGE AND HOUR ACT VIOLATIONS
259. Bernardo Perez was a foreman and agent of Lee Farms during all times relevant to this
complaint.
260. Lee Farms foreman charged Maldonado, Rodriguez, and Gauna for food while
Plaintiffs were jointly employed by Lee Farms and NCGA.
261. Lee Farms did not provide Maldonado, Rodriguez, and Gauna with access to cooking
facilities or food storage areas at the camp where they lived, in violation of N.C.G.S. 95225(g)(1), so purchase of prepared food was unavoidable.
262. The food Lee Farms provided to Maldonado, Rodriguez, and Gauna for the fixed
charge was not adequate for a healthy diet. Lee Farms foreman charged an additional charge for
nutritious items. Maldonado, Rodriguez, and Gauna occasionally purchased these additional items
in order to have an adequate diet.
263. Lee Farms foreman took Maldonado, Rodriguez, Gauna, and their co-workers to the
bank each week to cash their paychecks. That same day, Lee Farms foreman required Plaintiffs to
pay the mandatory charge for food, plus the cost of any additional food and any beverages
purchased while working in the field during the previous week. Lees foreman maintained a tally
list to track each workers payments.

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264. Lee Farms did not pay Maldonado, Rodriguez, and Gauna "free and clear" because
he required that they kick back" part of their wages to pay for food and beverages as described
in 263.
265. Upon information and belief, the amount of the payments made by Maldonado,
Rodriguez, and Gauna for food and drinks exceeded the actual or reasonable cost to Defendant
Lee Farms for furnishing these items.
266. Maldonado, Rodriguez, and Gauna did not provide Defendant Lee Farms with
written and signed authorizations as required by N.C.G.S. 95-25.8(2) for any wage deductions
made from Plaintiffs weekly wages.
G. REDA
267. As described in 40-56 above, Plaintiff Acosta engaged in protected activities as
defined in N.C.G.S. 95-241(a).
268. As described in 61-71 above, Plaintiff Acua engaged in protected activities as
defined in N.C.G.S. 95-241(a).
269. As described in 72-90 above, Plaintiffs Rodriguez and Maldonado engaged in
protected activities as defined in N.C.G.S. 95-241(a).
270. . As described in 91-102 above, Plaintiff Hernandez engaged in protected
activities as defined in N.C.G.S. 95-241(a).
271. As described in 103-123 above, Plaintiff Guerrero engaged in protected activities
as defined in N.C.G.S. 95-241(a).
272. As described in 124-144 above, Plaintiff Villarreal engaged in protected
activities as defined in N.C.G.S. 95-241(a).

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273. As described in 40-56 (Leoncio Acosta) 61-71 (Acua), 72-90 (Rodriguez and
Maldonado), 103-123 (Guerrero), 91-102 (Hernandez), and 124-144 (Villarreal), Plaintiffs were
subjected to retaliatory or unfavorable action by the Defendants because they engaged in
protected activities.
274. Defendants acted willfully.
275. Plaintiffs Leoncio Acosta, Acua, Rodriguez, Maldonado, Hernandez, Guerrero,
and Villarreal filed administrative complaints with the North Carolina Department of Labor
pursuant to N.C.G.S. 95-242(a) and were issued right-to-sue letters in accordance with
95-242(c) on or about April 8, April 19 and April 20, 2004.
FIRST CLAIM FOR RELIEF
(NORTH CAROLINA BLACKLISTING EMPLOYEES STATUTE)
Plaintiffs reallege and incorporate by reference 1 through 275.
276. The following Plaintiffs bring claims under the North Carolina Anti-Blacklisting
statute, N.C.G.S 14-355:
a. Plaintiff Leoncio Acosta against Defendants Steve Beasley and NCGA;
b. Plaintiff Luis Acosta against Defendants Vick Farming and NCGA;
c. Plaintiff Francisco Acua against Defendants Ricky Bell and NCGA;
d. Plaintiff Anastacio Hernandez against Defendants Frank Dail and NCGA;
e. Plaintiff Julio Cesar Guerrero against Defendants Rodney Jackson, Ricky
Wilson, and NCGA; and
f. Plaintiffs Fernando Rodriguez and Avertano Maldonado against Defendants
Lee Farms and NCGA.
277. Plaintiffs were discharged.

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278. Defendants, by word or in writing, prevented or attempted to prevent Plaintiffs from

obtaining employment with another person, company or corporation.
279. As a result, Plaintiffs suffered damages.
SECOND CLAIM FOR RELIEF
(NORTH CAROLINA WAGE AND HOUR ACT)
Plaintiffs reallege and incorporate by reference 1 through 279.
280. The following Plaintiffs bring this claim under the North Carolina Wage and Hour
Act, N.C.G.S. 95-25 et seq.:
a. Plaintiff Leoncio Acosta against Defendants NCGA and Beasley;
b. Plaintiff Luis Acosta against Defendants NCGA and Vick Farms;
c. Plaintiff Julio Cesar Guerrero against Defendants NCGA and Jackson;
d. Plaintiff Anastacio Hernandez against Defendants NCGA and Dail;
e. Plaintiffs Fernando Rodriguez, Avertano Maldonado, and Jos Eduardo Gauna
against Defendants NCGA and Lee Farms; and
f. Plaintiff Juan Villarreal against Defendants NCGA and Pilson and Evans.
281. In violation of the agreement described in 175 above, Defendants did not pay
Plaintiffs all wages when due for the work they performed for Defendants.
282. As a result of these actions of the Defendants, the Plaintiffs suffered and/or will
suffer damages in the form of unpaid wages and liquidated damages that may be recovered under
N.C.G.S. 95-25.22(a) and (a1).
THIRD CLAIM FOR RELIEF
(N.C. RICO)
Plaintiffs reallege and incorporate by reference 1 through 282.
283. All Plaintiffs bring this claim against Defendant NCGA.

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284. Specifically, at all relevant times, NCGA engaged in racketeering activity within
the meaning of RICO, N.C.G.S. 75D-3(c) by engaging in the acts set forth above. The acts set
forth above constitute a violation of one or more of the following statutes: N.C.G.S. 14-118.4
(extortion), N.C.G.S. 14-355 (blacklisting) and those incorporated by 18 U.S.C. 1961(1) (18
U.S.C. 1512 (tampering with a witness), and 18 U.S.C. 1546 (visa fraud)).
285. The acts of racketeering activity referred to in the previous paragraphs constitute a
pattern of racketeering activity within the meaning of RICO, N.C.G.S. 75D-3(b). The acts
alleged were interrelated by having the common purpose of deriving pecuniary gain from the
deprivation of rights of H2-A workers under their employment contract.
286. As a direct, intended and foreseeable result of NCGAs violation of RICO,
N.C.G.S. 75D-4(a)(1), Plaintiffs have suffered an identifiable and distinct injury or damage to
their business or property.
287. As a result of its misconduct, NCGA is liable to Plaintiffs for its losses in an
amount to be determined at trial.
FOURTH CLAIM FOR RELIEF
(REDA)
Plaintiffs reallege and incorporate by reference. 1 through 287.
288. The following Plaintiffs bring claims under the North Carolina Retaliatory
Employment Discrimination Act, N.C.G.S. 95-240 et seq. against the following Defendants:
a. Plaintiff Leoncio Acosta against Defendants Steve Beasley and NCGA;
b. Plaintiff Francisco Acua against Defendant NCGA;
c. Plaintiffs Fernando Rodriguez and Avertano Maldonado against Defendants Lee
and NCGA;

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d. Plaintiff Julio Cesar Guerrero against Defendants Jackson, Wilson and NCGA;
e. Plaintiff Anastacio Hernandez against Defendants Dail and NCGA; and
f. Plaintiff Villarreal against Defendants Pilson and NCGA.
289. The willful actions or failures to act by the Defendants, as set forth above,
constitute illegal discrimination or retaliation against Plaintiffs because Plaintiffs engaged in
protected activities under the REDA.
290. Plaintiffs have suffered damages and irreparable injury.
FIFTH CLAIM FOR RELIEF
(NORTH CAROLINA WAGE AND HOUR ACT LEE FARMS)
Plaintiffs reallege and incorporate by reference 1 through 290.
291. Plaintiffs Fernando Rodriguez, Avertano, and Gauna bring this claim against
Defendant Lee Farms.
292. Lee Farms made weekly wage deductions from the wages that were due Maldonado,
Rodriguez, and Gauna for food and beverages when Lee Farms had not obtained the written
authorization required by N.C.G.S. 95-25.8(2).
293. As a result of these actions of Lee Farms in violation of the rights under N.C. Gen.
Stat. 95-25.8(2), Maldonado, Rodriguez, and Gauna suffered damages in the form of unpaid
wages that may be recovered from Defendant Lee Farms under N.C.G. St. 95-25.22(a) and
(a)(1).
PRAYER FOR RELIEF

WHEREFORE Plaintiff respectfully requests that the Court:

(a)

Grant a jury trial on all issues so triable;

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(b)

Declare that the relevant Defendants violated their obligations to Plaintiffs under
Blacklisting Employees, N.C.G.S. 14-355, NCWHA, N.C.G.S. 95-25.3;
NC RICO, N.C.G.S. 75-D1; and REDA, N.C.G.S. 95-240;

(c)

Enjoin the relevant Defendants from continuing and/or further violations of

Blacklisting Employees, N.C.G.S. 14-355, NCWHA, N.C.G.S. 95-25.3;
NC RICO, N.C.G.S. 75-D1; and REDA, N.C.G.S. 95-240;

(d)

Enter judgment against relevant Defendants for penal damages under N.C.G.S.
14-355;

(e)

Enter judgment against relevant Defendants, jointly and severally, for unpaid
wages due under N.C.G.S. 95-25.3 and/or 95-25.6 and/or 95-25.8(2), plus an
equal additional amount as liquidated damages under N.C.G.S. 95-25.22(a)
and 95-25.22(a1);

(f)

Enter judgment against Defendant NCGA for threefold damages under

N.C.G.S. 75D-8(c);

(g)

Enter judgment against relevant Defendants for treble damages under

N.C.G.S. 95-243(c).

(h)

Enter judgment awarding full reinstatement of Plaintiffs Luis Acosta,

Francisco Acua, Fernando Rodriguez, Avertano Maldonado, Julio Cesar
Guerrero and Anastacio Hernandez;

(i)

Award Plaintiffs the costs of this action;

(j)

Award a reasonable attorneys fees to the North Carolina Justice and

Community Development Center under N.C.G.S. 95-25.22(d), N.C.G.S. 95243(c) and N.C.G.S. 75D-8(c).

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(k)

Award prejudgment and post judgment interest at the highest amount authorized
by applicable law on any amount of monetary damages awarded as may be
appropriate under applicable law; and

(l)

Award any other relief as may be just and proper in this action.

Respectfully submitted,
Legal Aid of North Carolina
Farmworker Unit
P.O. Box 26626
Raleigh, North Carolina 27611
(919) 856-2180

By:____________________________________
Mary Lee Hall, Bar No. 16347
Lori J. Elmer, Bar No. 24227
Jennifer J. Lee, Bar No. 28635
C. Andrew McGuffin, Bar. No. 31970
_____________________________________
Carol L. Brooke
Attorney at Law
North Carolina Bar No. 29126
North Carolina Justice and
Community Development Center
P.O. Box 28068
Raleigh, North Carolina 27611
(919) 856-2144
Attorneys for Plaintiffs

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