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The Ombudsman Column

What Did NOW Know?

On Friday evening, Nov. 18, one of PBS's flagship public affairs programs, the weekly news magazine NOW with David Brancaccio, devoted a segment to a report on reconstruction efforts in New Orleans in the aftermath of Hurricane Katrina. Thousands of construction workers had come to that city, and lots of them were Latinos. The segment, reported by veteran Latin America correspondent Maria Hinojosa, looked into allegations that these Latino workers were being underpaid and exploited.

Specifically, it looked at claims by union officials and unionized workers — electricians, in this case — that Latino electricians were being hired at $14 an hour, with no benefits, to replace union workers who, under a law known as the Davis-Bacon Act, were required to get the local average wage for an electrician of $28 an hour. The dropping of the local workers in favor of the Latinos, NOW reported, was said to have come soon after President Bush, at the urging of conservatives in Congress, waived the Davis-Bacon provisions in order to keep reconstruction costs as low as possible. But the workers and union officials didn't buy that, NOW reported, and "they took their complaints to Washington, DC, and joined the growing, bipartisan criticism over the suspension of Davis-Bacon. A month later, President Bush reversed course: the act was reinstated."

The construction work that was focused on in the program was being done by an Alabama-based company, BE&K Inc., at the Belle Chasse Naval Air Station outside of New Orleans. The program reported, "The electricians were subcontracting for a company called BE&K. BE&K is a subcontractor for a branch of Halliburton." That name, of course, will ring bells for lots of viewers because that is the company formerly headed by Vice President Dick Cheney. The local unionized "workers were told they'd have nearly two years of work, at their normal wages — about $28 an hour, including benefits," Hinojosa reported.

But as it turned out, NOW reported, within just a few days of their being hired, and of the waiver of Davis-Bacon, a flow of Latino workers joined the locals. "The union guys worried their jobs were on the line," Hinojosa reported, "and sure enough, three weeks into the job they were let go. The supposed two years of work? Gone." A union worker, Sam Smith, says on the program: "I mean, what did we do? Why were we being let go when there was obviously a lot of work still there to be done? It definitely wasn't our work or our performance." A union official, Tiger Hammond, adds that, "if I can get me an employee to come take the job of a guy like this that makes $28.09 an hour and I can give a guy $14 an hour...I want the guy at half the wages. It's common sense economics for those big corporations."

The program then reports: "BE&K says the union electricians were let go because their work was 'substantially complete,' not because they were replaced by cheaper labor." That is all viewers hear about BE&K's side of this story.

The program then goes on to report that "soon after the electricians were let go, immigration officials appeared at the naval base. They detained 16 alleged undocumented workers, including four employed by BE&K."

The Company Complains

Soon after the broadcast, BE&K's Director of Corporate Communications, Susan Wasley, wrote to me — with a copy to NOW — about their concerns. The letter said that: "Despite our best efforts to provide accurate and verifiable information to the program's researcher, the resulting segment contained serious errors that unfairly misrepresent our company and its employment practices." Wasley added that, "We communicated with (NOW) production assistant (Reed) Penney numerous times and believed he understood the facts and our perspective, neither of which were represented in the piece." Wasley then goes on to lay out "some of the facts that we provided, but were ignored."

Since the initial BE&K complaint, I have corresponded with both Wasley and with NOW's Executive In Charge, Lesley Norman, in an attempt to assess the views of both sides in this dispute. In the course of these exchanges, Norman informed me that "for the show which airs on 12/16, David Brancaccio will talk about the BE&K issue on camera. He will refer readers to our web site, where we'll post the BE&K letter and our responses." I have no advance information, as I write my regular Friday column on the morning of Dec. 16, about what, exactly, NOW will say about the challenges to its report. But it is commendable when powerful TV outlets respond publicly to complaints.

What follows is my assessment of the situation based on what was aired Nov. 18 and what I have been able to gather since then.

First, I should say that after watching the segment, I added a journalistic observation of my own that wasn't in the original list of BE&K complaints. The main point of this segment rests on the assertion that these Latino workers were paid $14 an hour. But those assertions are made by what Hinojosa calls "union guys" who say that's what the Latino workers told them. The union official quoted also uses the $14 figure. Maybe they are correct, but this struck me as all second-hand; "union guys" telling the reporter that's what they were told by Latino workers and the reporter telling viewers. Hinojosa doesn't hide the fact that it is someone else saying this. But the program might have included a line, in my view, that said something like: "this could not be independently confirmed with the Latino workers" for whatever reason. The fact is that no Latino electricians working for BE&K were interviewed on the program and asked about this directly.

In looking further into the matter, and in response to follow-up inquiries that I made with the company, I received, from Wasley, a record of e-mail exchanges between BE&K and NOW production assistant Penney prior to the actual broadcast. These show that the company told the NOW researcher that, although wage information is considered proprietary by the firm, "claims that we are paying electricians $14 an hour with no benefits is false." That company statement came in a response to a question from NOW only 24 hours before the show aired. In other words, the request for a company response to the key issue on wages that had been known about for many weeks came right on deadline. The e-mail shows that Penney asked Wasley on Nov. 17, "One more question. How much are BE&K electricians at Belle Chase making now? We've heard that it's $14/hour with no benefits." The company responded the following morning, Nov. 18, before the program aired that night. But the denial never made it on the air.

BE&K also explained in that same Nov. 18 e-mail that its contract with the general contractor, Halliburton subsidiary KBR, for work at the air station stipulates use of "Service Contract Act" wages, not Davis-Bacon, and that the SCA requires that employers pay a minimum of $18.62 per hour plus a $2.87 fringe for health and welfare. The firm said it was paying all journeyman electricians more than those required numbers. That didn't make it on the air either, although the information was received in time, according to the e-mail record.

In addition, on Nov. 16, Wasley, at the request of the researcher, also sent to NOW a Nov. 7 letter to BE&K from the office of Senator Mary Landrieu (D-La.), along with other company information dealing with the alleged four undocumented workers. The letter from Landrieu's office notes the initial complaints from the union electricians, the Senator's request in mid-October that federal agents from the Bureau of Immigration Customs Enforcement (ICE) investigate, and the history of earlier press reporting on this issue that the Senator's office had a role in and that seemed credible at the time.

"At the time," Landrieu's Nov. 7 letter to BE&K says, "all the information coming in seemed to indicate that the detainees were the alleged BE&K workers reported to our office, but we could not document that link. We told all reporters we spoke to that we could not confirm whether or not the detainees were hired by BE&K. We learned several days later that the 10 investigated by ICE were in fact not BE&K-contracted. BE&K also informed us that a voluntary review of documents by BE&K revealed two of their workers to have insufficient documentation and that those workers were promptly dismissed. I apologize that many current press reports have not sought further comment from our office before publishing, and that they instead rely on three-week-old statements."

The firm, which says it employed 289 people at the air station at the peak time, also informed NOW on Nov. 16 that on "October 26, BE&K received a verbal report from ICE that, while BE&K was in complete compliance with its employment eligibility documentation and hiring practices, two employees (a carpenter and a general laborer) had provided false information, which is a crime under federal law. They were released by BE&K and removed by ICE personnel. At no time before October 26 had any BE&K employee or the employee of any BE&K subcontractor been detained or removed from the job site." A follow-up letter from ICE, according to Wasley's message to NOW, said that in addition to the two workers who provided false information, the documentation of two others needed further verification. These two are ineligible for employment until their cases are resolved.

And NOW Answers

Here's what NOW's Norman has had to say to me in three letters so far about the BE&K challenges, and my follow-up questions.

On the four alleged undocumented workers who worked for BE&K and were "detained" by ICE agents, Norman says, "Before our broadcast aired, we confirmed these facts with the Federal Immigration and Customs Enforcement division, including reading our narration to them over the phone the morning our broadcast aired. They confirmed that they conducted two enforcement actions at the naval station: one on October 20th, which involved ten illegally undocumented workers; and another on October 28th, which involved six. They also confirmed that four of these workers in fact worked for BE&K." She also said the company "provided us with a copy of the letter from the ICE to BE&K which details the questionable status of these four workers."

On the question of what contract these Latino workers were operating under, Norman says, "We acknowledge that, in our on-air reporting, we left out the fact that BE&K had told us they were operating under a SCA contract, not a Davis-Bacon contract. We just missed it. While the point of the piece is still clear, BE&K is correct in stating that they did tell us they were governed by the SCA. Again, we have no independent confirmation of this. The only BE&K contract we have in hand is the contract signed with Knight Enterprises (the firm that hired the union electricians), which is a Davis-Bacon contract."

On the $14-an-hour issue, Norman says, "It is also correct that that we did not say that this $14/hour wage couldn't be independently confirmed." That figure was used "because it was quoted to us directly by the union electricians we spoke to." The Naval Air Station, she said, was closed to all but contractors and military personnel. Our production team went to the entrance of the base, and were asked to leave the property by uniformed, armed, personnel. So there was no way to get first-hand information about the $14/hour wage." She says that by stating, on the air, that the Latino workers "told the union guys they were making about $14/hour without benefits" viewers would understand that this was second-hand information. In one of her letters, Norman also reported that, "This $14/hour wage was what Mike Moran, the job foreman, said in hearings before U.S. Senators on Oct. 17, 2005."

Norman says flatly on the wage issue that, "As we have stated and documented in our previous letters, we have independent statements from several places, including interviews and Senate testimony, which support our reporting that the non-union workers hired by BE&K were paid $14/hour."

So, Where Do I Come Out?

I must say, in advance of whatever NOW has to say publicly and whatever conclusions it is going to draw in its program tonight, that I have some sympathy for BE&K's case regarding the central theme in this matter — the reported hiring of Latino workers at half the wages of local unionized workers.

I think the program should have added a line just to make clear to viewers that there was no first-hand evidence from the Latino workers about what they were getting paid.

More importantly, I think it is bad form to ask a contractor to respond to a question about the $14/hour allegation just one day before the program is to air when that allegation had been at the heart of the issue for several weeks.

Most important, and even worse form, in my view, is to not acknowledge the company's flat denial of that claim, and its important counterpoint — that it was operating under a different contract, which called for $18.62 per hour plus fringe benefits, and that the firm was paying wages above that for its electricians. You don't have to accept the company's word, but it should be reported and attributed. PBS editorial guidelines state that fair treatment requires that a producer "gives individuals or organizations that are the subject of attack or criticism an opportunity to respond."

It may be that the Latino workers earned less under the SCA contract than union workers would have under Davis-Bacon. But, if BE&K is correct, it appears to be a good deal more than the $14/hour claimed in the program, and under a legitimate contract.

There is another, more vague and subjective point here. The segment on BE&K was actually fairly short and was just the first part of a broader segment in which correspondent Hinojosa does indeed talk to many Latino workers who work for other firms and does some powerful reporting on poor living conditions and allegations of unpaid wages. This part has nothing to do with BE&K. But Wasley said it is not just the words, but the imagery of the segment taken as a whole that is also damaging.

As a viewer taking a second look, I can understand that as well, in part because after the reporting on BE&K, the program moves seamlessly to the rest of the segment involving another company and on-air interviews with Latino workers. But the segment ends by coming back to the union worker featured at the start of the segment on BE&K. That worker seems like a warm and thoughtful person who sees a connection with the struggling Latinos. But the technique also tends to tie the segment, and the alleged abuses, together.