Nov 2, 2023

Administration’s union focus could affect H-2A

A key principle of laws protecting workplace rights of employees is that they should have a free and unfettered choice of whether they want union representation or not.

California Farm Bureau has long supported this principle, as we also worked to address labor shortages faced by farmers, ranchers and agricultural businesses.

One program helping to fortify the agricultural workforce has been the H-2A visa guest worker program. It enables farm employers who are unable to attract enough employees to bring in foreign workers for short-term or seasonal agricultural work such as planting, cultivating or harvesting.

Now we fear the Biden administration may be effectively using the H-2A visa program to create a union hiring hall.

Recent actions by the U.S. Department of Labor tighten use of the visa program to promote unionization in agriculture, as does a grant program related to H-2A visa workers recently unveiled by the U.S. Department of Agriculture. The USDA program pledges to “improve food and agriculture supply resiliency by addressing challenges agricultural employers face with labor shortages and instability.”

Farm Bureau has worked to convince policymakers to address the shortage of agricultural employees for the better part of two decades. Unfortunately, our calls for legislation to offer legal status to America’s agricultural workforce and to reform the visa program for agriculture have run into gridlock on Capitol Hill.

The Biden administration appears intent on transforming the H-2A program in a bid to boost labor unions, a key political constituency. Only a tiny fraction of agricultural employees has opted to unionize, as organizing pitches have largely failed to convince workers of the worthiness of giving up 3% of wages in union dues for representation.

The administration is purporting to offer grant assistance to farm employers using the H-2A visa program to hire temporary help. But to take advantage of the visa program, the catch is that they seemingly must put out the welcome mat for union organizers.

USDA announced its Farm Labor Stabilization and Protection Pilot Program on Sept. 25, pledging to provide $65 million in grants — in awards from $25,000 to $2 million — for employers that meet “specific regulatory requirements.” In the fine print for evaluating grant applications, it is clear that eligibility requirements for even the program’s smallest grant recipients are designed to promote union interests.

The USDA pilot program seeks to apply H-2A program rules even at sites or for activities where H-2A employees aren’t even working. H-2A rules have special mandates to ensure housing at no cost to employees, coverage of transportation expenses and guaranteed wage scales — and require employers to offer those benefits to U.S. residents working alongside H-2A employees. That apparent concession to unions would extend H-2A rules — without negotiation — to any farm labor contractors that employers may also work with.

Even the smallest-dollar grantees will be required to allow employees to attend on-the-clock “know your rights and resources” training sessions and provide access to employees to “farmworker-trusted entities.” USDA doesn’t specify if that means union advocates such as United Farm Workers. But employers would be required to have collective bargaining agreements in place.

Agricultural employers seeking grants of more than $200,000 will be required to recruit through labor ministries of Guatemala, Honduras and El Salvador, even though there are well-established networks of ethical recruiters and eager workers in Mexico.

The Department of Labor’s proposed H-2A program regulations would also require employers to agree to abide by mandates mirroring National Labor Relations Act rules that have never applied to agricultural employment. Rules would require employers using the H-2A program to disregard employee privacy by furnishing names and contact information of both H-2A employees and U.S. workers to any requesting labor group.

The Department of Labor’s rule would prohibit employers from meeting with workers to discuss concerns about negative impacts of unionization. Employers that provide employee housing would also need to allow labor unions access to that housing. That is an end-run around the 2021 U.S. Supreme Court ruling in Cedar Point Nursery v. Hassid, in which the court found the California Agricultural Labor Relations Board’s mandate for farm-site access for union organizers constituted an unconstitutional taking of property.

It appears the Biden administration is seeking to impose unionization on agricultural workplaces where employees have historically rejected it. The proposals would subject those employees to intimidation and narrow property rights of employers. They should be rejected.

— Jamie Johansson, California Farm Bureau

Photo courtesy of California Farm Bureau.