“He’s Going to Get Himself Shot!” -- Inside the Struggle for Washington Farmworkers Rights (1970-1973)

  • By Michael Fox
  • Posted 3/16/2023
  • HistoryLink.org Essay 22690
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Michael Fox, now a retired King County Superior Court judge, was a young and idealistic lawyer in the early 1970s when he got involved in the legal struggle for farmworkers rights in Eastern Washington. Fox wrote about his experiences in a series of Facebook posts that were published by Post Alley on February 26, 2023. In these excerpts, reprinted with the author's permission, Fox recounts the periord from 1970, when he secured his first small legal victory, to 1973, when a ruling by the state Supreme Court became a major milestone in the legal and political struggle for farmworkers rights in Washington. 

Meeting Lupe

I met Lupe Gamboa during the Spring of 1970. Little did I know at the time how much our friendship – and our work together organizing and representing migrant farm workers in the Yakima Valley – would mean in my life.

I had graduated from the University of Virginia Law School in June 1969, and I wound up in Seattle, working with Greg Dallaire, the Director of Seattle Legal Services. Greg knew I spoke passable Spanish and was interested in working with farm workers, so I went over to the Yakima Valley in the winter of 1969-1970 and connected with Tomas Villanueva, who encouraged me try to get some lawyers involved with civil rights issues in the valley

I did get involved, but not much was happening at first. But it wasn’t long before I would get myself into a bit of trouble. The good kind.

Lupe at the time was a first-year law student at the University of Washington. He’d grown up in the Yakima Valley working in the fields from a very young age, so he knew first-hand the appalling conditions under which farm workers lived and worked. He was one of a handful of young Latinos who in the late 1960s were the first generation to come to the UW from the Yakima Valley to get an education, and who were committed to changing the oppressive conditions under which their community was living and working in the fields.

In September 1970, Greg received a call from Lupe, who told him that workers at about a dozen Yakima Valley hops ranches had gone out on wildcat strikes. Greg told me to go to the Valley, reconnect with Lupe, and see how we could help.

Securing a Small Win

I was 26 years old, had just passed the bar exam, and had hardly any real trial experience. When I got to the Valley that September, I somehow got myself to a picket line on a rural road bordering a hops ranch. I remember clearly that a uniformed Yakima County Sheriff, Deputy Birkilbine, was there. I was immediately on guard.

I was thinking, "my next stop will be the county jail." Instead, he said to me, "Can you figure out some way to get these guys back to work? I should be out patrolling the highways, and I’m stuck here." His demeanor was friendly, which was totally unexpected. So I began to talk to the leaders of the workers. They explained to me that they wanted higher pay, and that they wanted the women’s hourly pay to be equal with the men’s. 

After a half hour, I drew up a simple handwritten contract on a yellow legal pad setting a raised hourly wage, and some other language protecting the workers who joined the strike. Much to my surprise, the grower agreed and signed the "contract." Everyone went back to work. What I didn’t know then was that hops are a crop that is particularly vulnerable to a strike. The flavoring agent in hops is the "alpha resins," and the hops must be picked when the resins are at their peak. If not, the price for the picked buds decreases. So the growers in the Valley were under a lot of pressure when the workers refused to continue the harvest.

So that was the first farm worker-related legal development I was involved in.

Looking back, I’m now surprised how warmly I was received by the workers, and how they accepted and trusted me. I was a young, inexperienced, long-haired Anglo lawyer. I didn’t realize at the time that I was embarking on a life-changing experience. I spent lots of time over the next week with Tomas and Lupe, as well as Roberto and Carlos Trevino and other young Chicanos, and we bonded.

Lupe and I Get Busted

After the wildcat hops strikes were resolved with the growers conceding the higher pay rate, I would often accompany Lupe, Tomas, the Trevinos, and others as they visited Yakima Valley migrant labor camps and urged the workers to organize. We didn’t have any trouble visiting the camps and talking to the workers, but that changed one day the following summer.

In June 1971, Lupe and I, along with photographer Irwin Nash, and Sandy O’Brien and Patricia Cope, two summer volunteers with the United Farm Workers (UFW), went to the Rogers Walla Walla labor camp to meet with workers who believed they had valid wage and contractual claims. The armed guard at the camp called the sheriff’s office to have us arrested for trespassing, and that happened shortly.

Irwin, Patricia, and Sandy left in my car and two deputy sheriffs, B. J. Lang and G. O. "Scotty" Ray (in a wonderful twist of fate, Scotty and I ran into each other decades later in Seattle and became friends), arrested Lupe and me and took us to the Walla Walla County jail, where we were booked and then released. 

In September 1971 Lupe and I returned to Walla Walla for a brief trial before District Court Judge Howard Martin, and were convicted of trespassing. We submitted a detailed trial brief, arguing that we had constitutional rights under the First Amendment to enter into the workers’ residential area to talk to them about their legal claims and their organizational rights over the objections of their employer, who held title to the labor camp and the surrounding asparagus fields. 

We appealed the convictions. That trial in Walla Walla Superior Court, which lasted three days, took place in January 1972. We were again convicted, and given a chance to speak before the sentence was passed. Lupe got up and offered a quote from Victor Hugo: "Nothing can stop the force of an idea whose time has come!" Not to be outdone, I delivered, in Spanish, a quote from Emiliano Zapata: "It is better to die on your feet than live on your knees." Judge Al Bradford, who was not amused, sentenced us to each pay a $25 fine.

By now our little trespassing case was starting to attract some notice, and we decided to appeal our convictions directly to the Washington State Supreme Court. More on how that turned out below. 

Cesar Chavez Takes Notice

After the hops strikes, the workers returned to the fields and kilns to finish the harvest. But the growers quickly realized their vulnerability to work stoppages, and developed strategies to prevent future harvest time strikes.

Yakima Chief Ranch, located near Mabton, began discussion with their workers’ representatives and agreed to conduct an election to determine union representation. The whole process of labor organizing, union representation, and collective bargaining for farm workers was without historical or legal precedent in Washington.

As part of FDR’s New Deal, Congress had passed the Wagner Act, which provided legal protection for American workers to organize. Section 7 provided a federally guaranteed right to organize. The Act also established the National Labor Relations Board as an enforcement agency to protect workers by prohibiting employers from interfering with their employees’ organizing efforts. However, Southern Democrats refused to support the bill unless agricultural workers and some others were excluded from the legal protections of the Act. As a result, agricultural workers could be intimidated, fired, or discriminated against by their employers because they tried to form a union, and they would have no federal remedy.

In Washington, however, the State Supreme Court had decided a case which arguably provided ALL workers in the state a right to organize free of employer interference. There were other workers who were excluded from the Wagner Act’s protections: domestic workers, and employees working for companies with less than 10 employees. In 1965, the Washington State Supreme Court, in Krystad v. Lau, a case involving a small dry cleaning company in Seattle, held that employees of the company had a right under state law to organize free of employer intimidation.

During September 1970, the striking workers and their supporters held several meetings in a small movie theatre in Granger. Before the first meeting, the organizers requested that I contact the UFW and request their assistance. I telephoned Jerry Cohen, the head lawyer for the UFW in Delano, California, and told him about the legal protections seemingly protected by the Krystad case, and asked him "What should we do now, and can you help us?"

He said he’d get back to us. After about 30 minutes, he called back and told me that Cesar Chavez would be calling me back shortly. A few minutes later, the phone in the theatre’s tiny office rang; I answered it. Chavez was on the line. I again explained what was going on, and that the workers wanted UFW representation.

Chavez then spoke with one of workers’ leaders, and decided to send the UFW’s Treasurer, Rudy Ahumada, to the Valley to assess the situation. He arrived the next day, met with the workers’ leaders, and recommended to Chavez that the UFW commit to representing the workers. So began a multi-year effort to secure union representation. Shortly after the harvest concluded, Yakima Chief Ranch agreed to a union representation election, and the workers voted, by 105-3, to authorize the UFW to act as their collective-bargaining representative.

The Growers Strike Back

That wasn’t how every farm responded. Before the harvest was over, hops ranchers Elie Patnode and Don Riel threatened their employees, who had set up a picket line on the road in front of Patnode’s home and hops kiln. Riel, the more emotionally volatile of the two, became enraged and brought a double-barreled shotgun to the picket line. He yelled at the strikers, "If this doesn’t stop, there will be some dead beaners in the road!" After an hour or so, many workers left the picket line, and others went back to work. The strike was broken.

I remember that Lupe Gamboa called me and we filed a lawsuit against Patnode and Riel, seeking an injunction prohibiting further anti-organizational activity, based on the 1965 Krystad v. Lau decision. The lead plaintiff was Victorino Garza, one of the striking employees, who had emerged as a leader of the workers.

This was the first lawsuit ever filed in Washington asserting that farm workers had a legal right to organize and that employers could not interfere. We also realized that we were going to be trying the case in very conservative Benton County, where the growers were politically powerful. We took the case to trial in Prosser in January 1971, four months after the picket line incident. The case was assigned to Judge Richard Patrick, who had been appointed to the Superior Court by Governor Dan Evans in 1970. I was a rookie lawyer, and he was a rookie judge.

There was a lot of media interest – the Tri City Herald, the Yakima Herald-Republic, and the local TV stations covered every day of the trial. About 20-30 farm workers also attended. I was very nervous about my own inexperience and about Judge Patrick, and the political pressure he surely faced. The trial testimony, for me and I think a lot of others, was electric.

Dolores Huerta, the co-founder of the UFW (who later was awarded the Presidential Medal of Freedom by President Obama), testified that the union’s board had authorized support of the Washington workers. The growers didn’t contest the testimony about Riel’s conduct, and his brandishing of the shotgun. The defense lawyer was Dale McKenzie of Grandview, who was about 50 years old, with lots of trial experience.

We argued the evidence on the fifth day of trial, and Judge Patrick asked us to return the next morning at 9 a.m. for his decision. He spent about 20 minutes summarizing the evidence, and concluded that Patnode and Riel had violated the workers' protected legal rights, and that he would issue a permanent injunction against the growers. We had won, and established that farm workers had legal rights to organize.

I think all of us were tremendously impressed by Judge Patrick, his intelligence, and his courage. Seventeen years later, when I became a judge, I got to know him personally and visited him at his home in Pasco. He told me that he had indeed experienced pressure from community members who were opposed to the UFW and unionization efforts. He’s been one of my heroes ever since. He passed away at age 80 in 2014.

Building on the Initial Legal Victory

Other growers weren’t as stupid as Patnode and Riel. As mentioned above, Yakima Chief Ranch, owned by George Gannon and run by his son-in-law, Dan Alexander, had agreed to a union representation election in which the UFW prevailed overwhelmingly. Negotiations began between the UFW and YCR, and meetings took place in Mabton and California. Before too long, though, the negotiations collapsed, and George Gannon became a vociferous opponent of the UFW. He produced anti-union pamphlets, and made sure that he recruited a new anti-union work force for the 1971 and 1972 fall hops harvests. One of these new recruits was Alejo Guerrero, who started to campaign against the UFW and to recruit other anti-union workers to YCR. He was soon given the nickname "Alejo Pendejo" [which translates to "Alejo Asshole"] by the UFW organizers.

Yakima Chief Ranch and Guerrero soon stimulated the creation of the Agricultural Working Peoples' Committee (AWPC), a classic company union paid for by YCR and Gannon to oppose the UFW. Shortly thereafter, the AWPC, Guerrero, and other anti-union workers filed a lawsuit – funded by Gannon – against the UFW seeking to keep union organizers out of the YCR labor camp. Their suit alleged that the union organizers were interfering with the labor camp residents’ rights of privacy and solitude in their homes.

By this time, I was working for the UFW. The case was so controversial that none of the Yakima County Superior Court judges were willing to handle the trial. So the Office of the Administrator of the Courts assigned a quite conservative Skagit County judge, Harry Follman, to handle the trial. John Hoerster, a Seattle lawyer with the Garvey, Schubert, and Barer law firm, volunteered to help me with the trial on a pro bono basis. He was terrific, and did a lot better job than I did at the trial. After a week-long trial, it became clear that the conduct of the UFW organizers had been polite, non-confrontational, and entirely appropriate. So Follman ruled in our favor, but YCR appealed. We won in the Court of Appeals, too, in Venegas v. UFW, decided in 1976.

Tough Talk in Olympia

A number of growers were angry with Patnode and Riel for their threats of violence against the picketing workers. George Gannon also didn’t win any friends with his unhinged diatribes against Cesar Chavez and the UFW. The more strategic growers, acting through their statewide organization, embarked on a legislative lobbying effort in 1972. Sad to say, the State Labor Council cooperated with them in an effort which, if it had succeeded, would have made it exceedingly hard for farm workers to organize, conduct elections, and collectively bargain.

Labor had long desired to pass a state law that would provide a "Little Wagner Act" to establish a state procedure that would provide a mechanism for employees of small companies, not covered by the federal NLRA, to organize and bargain collectively. We learned that the growers were talking with labor, and that they had agreed to jointly push a bill which would cover virtually all employees not covered by the NLRA.

But, when we looked at a draft of the bill, we realized that it would never work for seasonal agricultural employees. The process to compel an election would take 4-6 months, while workers were rarely employed for longer than two months at a time. After the seasons end, "migrants migrate" – they move on to another town, another employer, and another crop.

So we opposed the bill. And, uncomfortably, we wound up in a serious dispute with the State Labor Council and its president, Joe Davis. Our biggest supporter in the State Senate was Sen. Martin Durkan, recent Seattle Mayor Jenny Durkan’s late father. He was smart, shrewd, and didn’t seem at all worried about alienating the Labor Council. Our primary opponent in the Senate was Democratic Senator R. R. "Bob" Grieve. We met with him a number of times, and couldn’t get anywhere. So someone from the local UFW leadership – I think it was Roberto Trevino – called Cesar Chavez to get help.

A couple of days later, Dolores Huerta flew into SeaTac. Then all hell broke loose. I vividly remember an unplanned meetup with Grieve in the halls of the legislature where we introduced Dolores to Grieve. She said to him: "Senator, my name is Dolores. In Spanish, that means sadness and pain. And unless you stop supporting this bill, that’s what you’re going to experience – mucho sadness and mucho pain." Grieve was taken aback, but quickly recovered and made some kind of demeaning insult and walked away.

So what happened next? First, Dolores called Cesar. Cesar called Teddy Kennedy. Teddy called Senator "Scoop” Jackson, the most powerful Democratic politician in Washington, and Teddy’s good friend. And Scoop called Grieve and said, in effect, "What the hell are you doing making it impossible for farm workers to form a union?" Grieve then gave in and withdrew his support of the legislation, ensuring its collapse. I can remember his fury, and then this statement: "I don’t know what you did or how you did it, but you should understand that you can never ask me for anything ever again!"

Later that year, Cesar Chavez publicly endorsed Martin Durkan for Governor.

"He’s Going to Get Himself Shot!"

After our victory in the legislature, we returned to the state courts. Ed Raftis, a lawyer for the Pacific Northwest Bell telephone company, had secured an invitation for me to speak to the monthly luncheon meeting of the Seattle King County Bar Association. I seriously prepared for the speech, which would be my first exposure to the "pillars of the Seattle Bar." My message was simple:

1. farm workers were being exploited; 
2. they had legal remedies which had not been utilized on their behalf;
3. we intended to utilize those remedies on behalf of these exploited workers, and bring them better pay;
4. we would see that current safety and sanitary regulations were enforced by the state, and help them get out of poverty, and live a life working in safe conditions and with personal dignity.

I also discussed the trespassing arrest and our convictions. I rashly declared that I was confident that our convictions would be reversed, and that the State Supreme Court would clearly establish a strong legal basis for union organizers and lawyers to go into the labor comps to provide organizing and legal assistance to residents of the camps. As I recall, I got a "Standing O" from the crowd of about 300 lawyers. A couple of days later, Ed Raftis called and told me that he thought it was a "powerful speech," that he had recorded it, and that he was going to run it in the next issue of the statewide Bar News. I was initially elated, but then thought, "All those judges and lawyers in Eastern Washington are going to read this, and then what’s going to happen?"

Well, one thing that happened is that I soon received a call from Llewelyn Pritchard, a very supportive Seattle lawyer and a member of the Board of Governors of the State Bar Association. Not everyone, however, was so thrilled. Pritchard told me that the President of the State Bar, Fred Velikanje, had read my speech and then said at a Board of Governors meeting words to the effect of, "If that kid Fox keeps bringing these lawsuits against the growers, he’s going to get himself shot!"

So, a couple of days later, I wrote a letter on Legal Services stationery to President Velikanje. I told him I was alarmed by his statement, and requested that if he had any specific information, would he please turn it over to law enforcement and to me "so I could take appropriate precautions."

About three days later, he called me back, acted very friendly, mentioned that "every dollar comes down those irrigation ditches," and then invited me to come speak to a luncheon meeting of the Yakima Bar Association. I emphasized that I believed that "the dignity of the entire profession" is enhanced when lawyers bring the force of the law to those in our society who had been denied it. No "Standing O," but a friendly reception. Still wary of any would-be snipers, I asked a couple of friendly lawyers if they’d walk out of the meeting hall beside me until I was in my car.

At the State Supreme Court

In the spring of 1972, the Washington State Supreme Court ruled that it would accept direct review of the appeal of Lupe Gamboa’s and my criminal trespass convictions. This encouraged us, because why would they grant direct review unless they wanted to reverse the convictions?

The appeal had attracted a lot of interest nationally in labor and civil rights circles. Llew Pritchard and Bill Neukom, both activist Seattle lawyers, notified me that they were going to try to convince the American Bar Association (ABA) to file an amicus curiae ("friend of the court") advisory brief in the Supreme Court urging reversal of the convictions. I was skeptical of their chances, as the ABA had always seemed to me be a conservative organization, never fully on board with the civil rights movement during the ‘50s and ‘60s.

They were successful, however, and Llew and Bill wrote a wonderful brief. Lupe and I were shocked and delighted. Several other organizations also filed amicus briefs urging reversal. That said, the response from lawyers was NOT universal approval: About 20 lawyers from the Walla Walla County Bar Association resigned from the ABA in protest.

By the time of the argument at the Supreme Court in October 1972, Lupe Gamboa, Carlos Trevino, Roberto Trevino, and Jesus Lemos and the UFW were using the hearing, conveniently scheduled after the hops harvest and toward the end of the apple harvest, as an organizing event. They hired two school buses and transported over 80 farm workers to Olympia from Sunnyside to attend the hearing.

The Supreme Court hearing room in the Temple of Justice is a grand, formal auditorium with ornate fixtures and high ceilings. Up until this time, few members of the public would attend Supreme Court hearings. About 30 minutes before the hearing began, the workers, all men as I recall, filed in quietly and took their seats, dressed neatly in clean work clothes. The two prosecutors from Walla Walla, Arthur Eggers and Jerry Votendahl, looked astonished – I think, in retrospect, that they then realized that this was not just a legal hearing.

The nine Justices filed out onto the bench in their robes and took their seats. The Chief Justice, Frank Hale  sat down and said something like "Welcome, everyone, to your state Supreme Court." Very few of the workers spoke much English, but I think they detected a friendly environment.

Since we were the losers at the trial court, and it was our appeal, our two lawyers began their arguments first. Charles Ehlert, my lawyer and lifelong friend, made a clear and unemotional argument, reviewing the First Amendment case authorities and constitutional legal arguments advanced in our brief.

Then, the moment we’d all been waiting for: Mario Obledo, Director Counsel of the Mexican American Legal Defense and Education Fund (MALDEF), who was representing Lupe, got up and began his argument. I don’t believe a Mexican American lawyer had ever appeared before the Supreme Court. Justice Robert Utter made a friendly welcoming comment and Obledo was off to the races. Where Charles was formal and legalistic, Obledo was forceful and emotional. He described the Rogers Walla Walla labor camp, which he had visited once with Lupe, as a "scar sitting under the beautiful Blue Mountains." He assailed Rogers Walla Walla and the Sheriff’s Department for isolating the workers from services available in the community, and denying them access to legal help and the union trying to help them.

Even though few of the workers could follow all of his arguments, their support – and delight – was obvious. I’m convinced that seeing a brown-skinned lawyer, in an impeccable pinstriped grey suit, advocating on their behalf was a big part of that. Obledo made a final point about "ending this injustice, and removing the clouds over the heads of these two young men. Reverse these terribly mistaken convictions!" He turned, looked at Lupe and me seated behind him, and sat down.

After a moment, Jerry Votendahl, the Deputy Prosecuting Attorney, began the counter argument. Justice Hugh Rosellini stopped him and asked: "Where in the Constitution or laws of the United States or the State of Washington does it give YOU the right to bring these workers up to Walla Walla from Texas, put them in a labor camp and HOLD THEM PRISONER?" Charles leaned over and whispered to me, "I think we’ve got one vote." For Votendahl, the argument went downhill from there, as he faced multiple questions from the justices all based on skepticism and outrage.

The hearing could not have gone better. We headed to the home of June and Greg Dallaire, where we had a party with about 40 co-workers and supporters.

Charles Ehlert passed away in January 2017 after a long career practicing law in Seattle. He later described the day of the Supreme Court argument as the "most meaningful day of my legal career." Mario Obledo went on to serve in the cabinet of California Governor Jerry Brown from 1976-1984 as Secretary of Human Services.

In the 1990s, when Lupe was awarded the Goldmark Award by the Legal Foundation of Washington for his outstanding career long work as a lawyer for farm workers, Obledo traveled to Seattle to honor him and present him the award, despite being debilitated by diabetes. He died a few years later.

Llew Pritchard continued a distinguished career in Seattle, remaining active in pushing the ABA toward advancing the concept of "Justice for All." In 2022 the Bar honored him with a civil rights award for his lifetime of work. Bill Neukom went on to become the President of the Young Lawyers Section of the ABA, then the General Counsel of Microsoft, and eventually the President of the entire ABA. He and his wife started a private foundation, and one of its guiding principal is advancing "The Rule of Law."

In May 1973, the Supreme Court handed down its unanimous decision reversing our convictions, and clearly establishing the legal rights of union organizers and lawyers to enter onto private property where workers live in order to provide organizing and legal assistance. It remains a major milestone in the legal and political struggle for farmworkers rights in Washington State.

In October 2022, the Jordan Schnitzer Museum at Washington State University formally opened an exhibition of Irwin Nash’s photographs of the struggle for farmworker rights during this period. One they included in the exhibition is a 1971 photo of Lupe and I, our arms raised and our hands clasped, as we stood in front of the "No Trespassing" sign at the Rogers Walla Walla labor camp. More than 50 years later, we posed again, our hands clasped in the same way, standing in front of the photo on the museum wall. I even wore the same orange suede jacket I wore that day in 1971 when Irwin Nash snapped our photo.

For me, a now retired lawyer and King County Superior Court judge, that moment stands as a testament to what became a lifelong friendship between Lupe and I, and also a reminder that, while the arc of the moral universe is long, it really does bend towards justice.

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