By Chris Roberts
By Joe Eskenazi
By Albert Samaha
By Mike Billings
By Rachel Swan
By Erin Sherbert
By Joe Eskenazi
By Albert Samaha
As the Aguilar brothers remember it, one afternoon last August the management had some workers cook up shrimp soup and fried fish for the Latino construction men who were picking up their checks. It was a strange show of hospitality from the bosses who'd otherwise made work on Hunters Point Hill miserable from day one.
Fausto, 39, and Gonzalo, 41, knew meetings were supposed to be for all workers, not just the ones with roots south of the Rio Grande. Having toiled in this country for nearly 20 years, with a general knowledge of labor laws and an encyclopedic recall of carpenters' union rules, the Aguilars had been keeping close track of the growing tally of what they believed to be racist incidents at the job site.
The brothers say that the Latino and black crews were kept separate, with Latinos heavily outnumbering the blacks. Worse yet, many Latinos were forced to give cash kickbacks from their checks, which were shared among management.
And here was another example: "We have two really big problems," said foreman Ernesto Cunningham of San Rafael-based Bay Building Services, Inc. Cunningham spoke in Spanish to the dozens of men gathered in a warehouse, blocks away from the job site. According to Gonzalo Aguilar's testimony at a public hearing last month, Cunningham said the first problem was the "fucking union," which he said often stopped their work because many workers didn't have union cards. Cunningham said the second problem was the "pinches negros" (which translates roughly to "fucking niggers"). As he explained it, they want to work in the place of "you guys," and we (meaning Latinos) are at "war" with them. (The attorney representing the company Cunningham worked for said his clients will not respond to questions due to pending litigation.)
Gonzalo Aguilar says in his testimony that Cunningham had some solutions to these "problems." Cunningham allegedly said that when the union reps come around, the workers should ignore them, tell them "to go to hell," and refuse to show their union cards. Better yet, they could follow the example of one man who'd heckled the reps and thrown his identification cards at them.
Of the black workers, Cunningham is accused of saying they were "too slow" and that he wanted to fire them all.
If this was supposed to be a call for solidarity among the Latinos, it was lost on the Aguilars. In fact, for the Aguilars, who refer to black carpenters as "our black brothers," it just seemed plain wrong. So when Fausto returned to his Hayward home, he wrote down Cunningham's words.
The racist rhetoric wasn't just reserved for off-site meetings to which black workers were not invited. Gregory Hall, an African-American carpenter, met with company representatives on the job site to ask why black workers were not being hired even though the site was smack-dab in the Bayview, one of the city's few majority black neighborhoods. Experienced black carpenters had constantly inquired about jobs.
The answer, according to court documents, was that the site's bosses would give the "community" group, or African Americans, and the "core" group, meaning the Latinos, separate walls to work on. If the community group could "keep up" with the core group, then more black workers would be hired. This was 2007 in one of the most progressive and über-PC cities in America, but management appeared to be talking straight Jim Crow.
The racist allegations go on and on in the civil lawsuit filed in San Francisco Superior Court and sent out to be served last week on Denver-based Apartment Investment and Management Company (AIMCO), which calls itself the largest apartment owner in the country. AIMCO owns and manages the 604 federally subsidized units on the hill overlooking the Hunters Point shipyard. The properties are currently under extensive renovation after the city zapped the company with a 2002 lawsuit for negligent upkeep to force it to fix serious housing violations, including bad plumbing and toxic mold that residents complained was making them sick.
Having wrangled itself out of trouble by making the renovations and paying millions to the city and to a nearby Boys and Girls Club as required in the 2004 settlement, AIMCO undertook the current project to update units in La Salle, Shoreview, Bayview, and All Hallows Gardens with new windows, doors, flooring, bathrooms, kitchens, lighting, and paint.
Now the housing giant is being targeted again for alleged collaboration in wrong-doing during the new construction project, bankrolled in part by $73 million in tax-exempt bonds and $42 million in federal low-income-housing tax credits. The suit also names Fortney & Weygandt Inc., the Ohio-based general contractor AIMCO hired to coordinate the construction and hire of subcontractors, three of which are also being sued. The suit alleges that AIMCO, Fortney & Weygandt, and the three subcontractors created a "supermanagement team" that waged a campaign of racism and exploitation.
The 27 black and Latino carpenters who brought the suit decided they wouldn't tolerate what they say is an extreme example of the construction industry's "best-kept nonsecret," as one Bayview activist puts it, where black workers are passed over in favor of largely undocumented Latino immigrants who are more easily exploited.
As Latinos have passed blacks as the country's largest minority group, much controversy has ensued over whether one group's success means pushing the other out of jobs. A 2006 Pew Research Center poll indicated that blacks are more likely than whites to see immigrants as taking jobs away from Americans. Former Mexican President Vicente Fox created a media circus in 2005 after he commented that Mexicans take the U.S. jobs "even blacks don't want to do." In 2006, 28 percent of construction workers in this country were born in another country, according to the Bureau of Labor Statistics.
But in San Francisco, even with the unemployment rate of African-American men hovering at three times that of Latino men, the alleged efforts at the AIMCO site to divide the two races instead had the opposite effect. The two groups have joined in a perhaps a uniquely American display of solidarity — suing their common enemy, the employer, as one.
The suit alleges a number of violations of state labor code and antidiscrimination law, including:
• Job-site supervisors and foremen, mostly Latinos themselves, took $100 to $400 a week from Latino workers, either by cashing paychecks and withholding the money or having workers cash their own checks and give kickbacks.
• Qualified black carpenters were repeatedly told there was no work available, even while subcontractors continued to hire Latinos.
• Black and Latino workers worked on separate crews.
• Black workers hardly ever worked a 40-hour week, while Latinos often worked overtime and sometimes weekends.
• Management hid several nonunion workers in a warehouse when the carpenters' union reps came to visit.
• Black workers were repeatedly told they were too slow and inexperienced. At least once, instructions for a job were given only in Spanish to a group of Latinos and blacks, leaving the black workers without instructions.
• Latino workers were pressured to do fast and shoddy work; one job-site supervisor said it was because only black people would live in those units.
For now, construction at the site has stopped for what a spokesman says is a normal delay in building phases, though the company vows it will restart work in early April. The carpenters and community activists demand that the individuals named in the lawsuit do not return. Meanwhile, AIMCO is passing the blame. In a letter to city supervisors before a hearing on the issue last month, senior vice president Patti Shwayder said that the allegations focus on employees of the subcontractors hired by Fortney & Weygandt, and that AIMCO would require that company to remove the subcontractors from the job if the allegations were true.
Fortney & Weygandt's general superintendent on the site, Mike Cunningham (no relation to Ernesto), who is named in the suit, says he was sorry to hear "there's just so much discontent," and was surprised by the allegations of kickbacks: "I wasn't aware of every little detail that was going on, but so be it," he told SF Weekly. All hiring and firing is up to the subcontractors, he added.
Attorney Paul Simpson represents the two subcontractors accused of extorting wage kickbacks, Daly City-based roofing company IMR Contractor Corporation, and San Rafael-based Bay Building Services. Simpson says his clients deny any discrimination or kickbacks, and that they would take "appropriate action" if any employee was proven to have done so. While the lawsuit accuses IMR owner Moises Avila of sharing kickbacks and echoing Ernesto Cunningham's racist rhetoric, Simpson describes Avila as "a roofer [who] worked his way up. He's an American success story, and these allegations are very hurtful to him." (Avila referred all questions to Simpson, his attorney.)
Simpson's clients have reason to worry: This could result in a costly settlement or jury-awarded damages, and multiple city officials and carpenters say that the district attorney is investigating. (The DA's office will not confirm or deny an investigation.) The state criminal code allows a two-to-four-year prison sentence for extortion, possibly tacking on a year for each consecutive count up to a total sentence of eight years. Three Latino carpenters say that managers were taking money from at least a dozen workers every week for months on end, although it's unknown how many would testify to it in court.
For now, the allegations must be treated with skepticism, but there's little denying that it would be an extraordinary feat of coordination for 27 workers, half of whom can barely communicate with the other half without a translator, to come up with similar tales. As Bob Salinas, the Oakland attorney who is representing the workers in the suit, asks, "Could my guys have been making that up?"
At a City Hall public hearing last month, supervisors were clearly concerned. Carmen Chu nodded in solemn agreement as Jeff West, a carpenter apprentice who lives in one of the AIMCO properties and worked on the site, explained that he wanted to be a role model to men in the area by getting a job. "But to come to work and be a taxpayer and be called a nigger? I deserve everything ... that another man deserves."
Salinas adds that the alleged statements from the warehouse meeting — that the bosses wanted to fire all the blacks and that the Latinos were "at war" with them — hark back to antidiscrimination cases of eras past, before employers knew to hide their racist hand. "To prove this, the jury just has to believe this statement is true, and it's over," he says. "Do you think it takes a trained legal expert to see these things were based on race?" Other evidence is even more explicit. Salinas provided the SF Weekly with a photo he said West had taken of graffiti scrawled in a bathroom on the construction site in January, including the words "fuck all nigger's," "slave," "monkey's," and "AID'S."
Simpson, the attorney for two of the defendants, called the testimonies at the hearing "inflammatory," and said his clients weren't informed of the hearing until it was already in progress. "They are people that are hard-working, honest individuals that are being accused of wrongdoing, and nobody has come up with any evidence substantiating the accusations," he said.
But the carpenters say they've witnessed plenty.
The hiring at the AIMCO site was problematic from the start. According to the lawsuit, not one black worker was hired for the first month of work in May. Black carpenters who inquired were told contractors weren't hiring, or that they were waiting for materials. But black workers noticed that more Latinos were hired. Finally, some carpenters and community activists stopped work at the site with a protest.
After the rally at the end of May, a dozen black carpenters were hired, according to the lawsuit, including 61-year-old carpenter Bob Ivy. Having grown up in the Bayview just blocks away, he considered it his duty to rehabilitate the neighborhood. But once on the job site, Ivy and the other black workers rarely got a full week's work, while the Latinos often worked overtime and weekends. One day, carpenter Roy Edwards complained about always being the first to be sent home; according to the lawsuit, Ernesto Cunningham called him a "motherfucker." The two men got into a yelling match, and it was announced that nobody would work that day, according to Edwards and foreman Randy Keys. But soon after, Keys says he drove by the job site and saw the Latinos still at work.
In his 35 years as a carpenter, Ivy says he's always had to fight to get and keep jobs. But in recent years, he says the color of the competition has shifted. When a black Vietnam vet like Ivy visits construction sites and sees mostly Latinos, some of whom are willing to brush aside a union man's "safety first" creed and don't speak English, it's hard for it not to sting. "I feel bad for them, but they're taking money out of my hands and food out of my mouth," he says. "How do these other ethnic groups come to America and succeed, and the black people still stay stagnated?"
Ivy said at the public hearing that the crews for the company he worked for, Livermore-based Bay Area Construction Framers, were divided by race — his all-black crew was assigned to tearout, while white workers came in for the installation. Joe Powell, the company's attorney, says the job assignments had nothing to do with race. He says it's normal for a company to assign a crew it has worked with before and knows is trained in a certain specialty to one type of work, and then the local hires with whom it has never worked to another.
Other black carpenters in the suit report that the various bosses often told them they were slow, and threatened to dock their pay for stopping work for just a moment. When one carpenter complained about the dangerous conditions the Latinos were working in, the suit claims one foreman retorted, "Scared or something?"
Meanwhile, the Latinos faced their own woes. Problems started for Hector Rodriguez on his first visit to the job site. A union journeyman carpenter, Rodriguez was instructed by Bay Building Services foremen Ernesto Cunningham and Jesus Sandoval that he would earn $24.25 an hour, $9 an hour less than union wage, according to the lawsuit, though the work he did for IMR and Bay Building Services was only what he considers carpentry work – siding, windows, sliding doors, and walls. After a few weeks, Rodriguez began getting paid carpenters' wages, but had $100 deducted from his paycheck each Monday by Bay Building Services foreman Qaltemo Arellano, according to the lawsuit. Rodriguez, 28, says he has paid taxes for the 11 years he's lived in the United States, and thought what his bosses were asking was illegal. Yet he had problems finding work, and had four children: "I wasn't happy, but I had to work." After he had worked there for several weeks, one of his sons required emergency dental surgery. Rodriguez' Kaiser copay was $6,000. He pleaded that his supervisors not take a cut of his pay that week, but they still did, as Rodriguez explained at the hearing.
Rodriguez complained to the carpenters' union along with the Aguilars and others, but things only got worse. According to the lawsuit, Rodriguez said he was threatened on the job site by Jesus Sandoval's brother, Elias, that if he kept complaining to the union, something "might happen to him outside of work." One night last fall, months after he'd been laid off, Rodriguez says he donned his cowboy boots and cowboy hat to go to the Fiesta Nightclub in San Jose to see El Potro de Sinaloa, a popular singer from his home state. He later noticed other job-site supervisors were at the club, and the scene that ensued seemed taken straight from a mob movie, as described in the suit: Carlos Delgado, Cunningham's brother-in-law, grabbed Rodriguez by the neck and called him a "fag," saying that complaining to the union wasn't something a "man" does. "They could do something to me easy," Rodriguez says. "I was scared. I have family, and if something happened to me, I don't know what would happen." Delgado could not be reached for comment.
The carpenters' union filed three charges against IMR and Bay Building Services with the National Labor Relations Board. The two companies "settled" the charges for the alleged antiunion comments at the warehouse meeting by accepting the slap on the wrist of having to post a bilingual notice saying that federal law grants them the right to union activity. Another charge against Bay Building Services was withdrawn when NLRB reps said there wasn't enough evidence that the Aguilars and two other men had not been recalled from a layoff because of their union activity. The lawsuit alleges many black and Latino carpenters were laid off in retaliation for complaining to the union or signing a petition.
Rodriguez says the managers tried their best to stop communication between the Latinos and blacks. He speculates that was so they could get the Latinos to work fast and in unsafe conditions, and steal their money without anyone squawking. Rodriguez says he was discouraged from talking to blacks, and that the workers ate lunch separately, so communication was often limited to the black workers telling the Latinos there was a work stoppage in protest. Black carpenter Gregory Hall heard of the accusations regarding the Latinos' stolen wages and circulated a petition denouncing it among all the workers. Hall says it was intended to show solidarity; he didn't show it to the management.
Last fall, the Aguilars and Rodriguez attended one of the community meetings held by black workers at a church near the work site. Ivy remembers everyone whooping in disbelief as the details of the alleged wage stealing were translated into English. The separation tactics had failed. The two sides realized they were both victims of the same alleged business model: to employ the cheapest workers who wouldn't complain.
Upon hearing the stories, Ivy says he was reminded of black men he'd worked with through the decades who accepted bad working conditions out of fear of losing their jobs. "It was almost like slave labor," he says.
Last fall, some carpenters went to La Raza Centro Legal in the Mission to inquire about their rights. La Raza contacted Bob Salinas, who had just won a $100,000 settlement for three workers who had not been paid for all their hours worked at a Chinese buffet in the East Bay. After listening to the carpenters' stories, and doing his own investigation, Salinas decided they had grounds for a civil suit.
Although the carpenters' statements and the photo of hateful graffiti may be the only records of the alleged racism on the construction site, evidence that some of the work was done haphazardly is built right into the renovated units.
To the untrained eye, the neat row of the redone yellow-and-tan three-story units of All Hallows Gardens sloping down to the shipyard looks cheery and inviting, especially compared with the brown barracks-like Oakdale housing project across the street.
But Gonzalo and Fausto Aguilar pointed out the shoddy work earlier this month. The brothers say many of the hires were undocumented family members or acquaintances of the management who wouldn't protest kickbacks. The lawsuit says that Ernesto Cunningham would hide several nonunion Latinos in a warehouse, and told them to hide if the union steward came to the site. The union fined Cunningham and IMR, according to the suit. (The carpenters' union refused to comment for this story.)
The Aguilars say inexperienced workers bring down the level of safety for everyone. "It's like this: If you go to a job where there's blacks, whites, Latinos, safety is first, right?" Fausto says. "But if you go to a job where there's 70 percent Latinos, they don't care about safety."
"They want fast work," Gonzalo says. "It pains me to say it, but the Latino foremen are the ones who treat us the worst. This wasn't the first time. But here it was more evident."
The brothers point to the doorbell where Jesus Sandoval had told them not to leave a space for the wires while they were putting siding on the wall. When asked why, Sandoval told them, "Fucking black people, they don't deserve it," the lawsuit states.
The Aguilars point out how at a corner of the house, the siding doesn't align on the adjoining walls. At another place, siding runs up the front of the house at an angle.
Coming home from work, resident Patricia Williams opens up her garage door to show how the construction folks left it when she moved back in, after staying in another unit for a month during the renovation. Sawdust coats the floor, which is littered with nails, pallets, and an empty barrel. Uneven holes are cut into the walls around exposed wiring. The thick television cable mysteriously snakes out of the apartment's second-floor wall and into her garage, the only one like that on the block.
"It's tacky," Williams says. "They just did a bum job."
Such disappointment clouds what chief assistant city attorney Jesse Smith called a "fresh start" between AIMCO and the city, after the company settled the city's lawsuit in 2004. To encourage the company to completely redo the units, the city promised to endorse AIMCO's application to the state to receive tax-exempt status on bonds to finance the work. But the approval came with stipulations that AIMCO must pay prevailing wages, enact nondiscriminatory hiring, and abide by the city's First Source Hiring program to prioritize San Franciscans for entry-level jobs, especially residents of the Bayview.
"As a corporate entity, they're not known for their civic-mindedness," says Supervisor Sophie Maxwell, whose district includes the Bayview. "We had to sue them to get things repaired properly. ... That's why we put the conditions in, and not say we'll just leave it to their good graces."
But since no formal complaints were lodged with city agencies about violations of the agreement, the city did very little, although multiple officials say the district attorney is investigating. The city was limited in its ability to pressure for jobs, since the first hiring legislation applies only to entry-level workers, when much of the work at the AIMCO site was for journeymen, says Chris Iglesias. He was then the director of CityBuild, the city's program to help construction companies implement local hiring requirements. AIMCO says that by the end of 2007, nearly 40 percent of all hours worked on the construction site were by city residents.
While Maxwell says "the agreement did what it could," since in the end the pro-ject was not city-funded, the carpenters and community activists say the city and AIMCO let them down.
"I'm tired of people saying they need to put teeth into these agreements," says Dorothy Peterson, a longtime AIMCO opponent and activist for the building's residents. "C'mon, just do the right thing."
Will the city be suing for breach of the agreement? The city attorney is waiting to see if AIMCO will make good on its promise to force Fortney & Weygandt to investigate the allegations, Smith says. "Ultimately it could go to legal actions, but we're all hoping if there is a problem, [AIMCO] will take quick action to solve it," he says. "That's what everyone is hoping and expecting will happen."
"They're in trouble," says carpenter Terry Mackey, sitting against the back wall of the City Hall meeting room, referring to AIMCO and the other defendants.
The carpenters turned the Government Operations and Neighborhood Services Committee meeting into something resembling a pep rally, including applauding themselves and their supporters and heckling their villains.
"Get up there and tell us a lie!" one man yelled as Bill Wong, a former senior field representative of the carpenters' union, took the stand. Many carpenters say that if their union had reacted more aggressively to their complaints, or had better policed nonunion members on the site, it would have headed off the lawsuit. But carpenters' union attorney Salinas says the union had been looking into the wage grievances, but those cases were dissolved because of the pending lawsuit.
While testifying, one carpenter declared: "We love each other. We just didn't know this, but we know this now." And after the Aguilars' father testified of his support, placing his white cowboy hat on the podium, several black carpenters embraced him in a bear hug. While shooting a group photo outside on the steps, a few workers held up peace signs.
Certainly, carpenters complaining of poor treatment and expressing interracial brotherly love make sympathetic characters. "The carpenters are adorable, aren't they?" Salinas said.
AIMCO's pinstripe-suited attorney from the 2002 lawsuit, Jim Reuben, seemed to measure his words as he stood up to speak, careful to say nothing that would get him heckled, yet careful not to say anything that would come back to haunt the company in a courtroom.
"On the personal level, I found the testimony surprising and troubling," he said. A sarcastic "Psssh!" erupted from somewhere in the back. "Every time I heard the name AIMCO mentioned, it sounded to me like [IMR Contractor Corporation] should be mentioned as well, but that's what our investigation will find out."
Supervisor Maxwell dug in: "Yes, but by and large, AIMCO is who the people know. It's who we know, it's who we made the contracts with. So we have to take that kind of responsibility."
"Understood," Reuben defers.
Until the lawsuit goes to court, the carpenters are waging private battles, many brought on by their time at the job site. Bob Ivy is on disability for a herniated disc after he jammed a countertop into steps while carrying it unassisted, and now walks stiffly, with constant pain. Hector Rodriguez says he now checks his house before he lets his family enter, since he thought he spotted the man who took him to the job site and a foreman driving by multiple times. Felix Cortes is worried the defendants may try to exact vengeance back in Mexico, given that the family of the man he's accusing in the lawsuit of taking $400 from his $800 weekly paycheck lives near to his own family's village in Oaxaca.
"Here, there's justice," Cortes says. "If someone does wrong, they punish him. There, the richest person wins."
Ivy says the case is not about the money. "I'm looking for change," he says. "I've been doing this for 35 years, and I'm still fighting for a job.
"How can I call this a career?" he continues. "It's been a struggle."
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