Katherine Zehnder
Carolina Journal
The North Carolina Farm Bureau Federation recently filed a lawsuit with two North Carolina farmers against the US Department of Labor (DOL) over provisions allowing temporary farm workers (H2A workers) to unionize.
“Our complaint is that the DOL doesn’t have the authority to require collective bargaining or to provide collective bargaining and self-organization rights to workers; that’s Congress’ job,” Jake Parker, general counsel for the NC Farm Bureau, told the Carolina Journal.
On June 28th, the “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” better known as “the Farmworker Protection Rule,” went into effect.
The rule allows temporary or H2A workers to unionize. In contrast, domestic workers (full-time and part-time) are exempt from the National Labor Relations Act laws governing unionization. Parker noted that attempts have failed to include collective bargaining rights for domestic workers in the National Labor Relations Act.
“What the DOL did is they tried to use the department’s very narrow ministerial authority under the H2A program to grant these effective union rights to these agricultural employees when Congress has expressly said in the National Labor Relations Act farm workers are exempt from those protections,” said Parker.
Additionally, the Farm Bureau argues that collective bargaining should be decided by the states and not at the federal level.
“When Congress exempted those agricultural employees from those protections, it left the decision-making in that area to the states,” said Parker.
On August 26th, a US District Court for the Southern District of Georgia issued a preliminary injunction prohibiting the DOL from enforcing the rule in certain states and entities. This injunction follows a lawsuit filed by 17 states (North Carolina is not one of them), seeking to block the H2A rule in all 50 states. The DOL is currently complying with the injunction.
“Basically, the entire southeast and the agriculture industry are saying ‘stop DOL’,” said Parker. “Unfortunately, this is how it works in public policy litigation at the outset; many federal District Court judges don’t like to do nationwide stays. They feel like we need to provide relief to the parties that are actually in front of the court versus folks who may not be in front of the court, and so they tend to take this narrower approach to providing that relief.
Now, if you win on the merits that the administrative procedure act says the rule must be set aside, that would have nationwide effects. So in every lawsuit, we’re all shooting for that same type of ruling.”
“The Court finds no evidence of federal Congressional intent to create a right to collective bargaining for agricultural workers,” wrote Judge Lisa Wood in her opinion blocking the rule. “The Final Rule does just that. The Court therefore finds that the Final Rule exceeds the DOL’s constitutional authority because it creates a right. This is not in ‘accordance with law’ as required by the APA. … Administrative agencies, including the DOL, cannot create law, and the DOL cannot create rights that Congress has not. The DOL cannot make both executive rules and congressional laws.”
The DOL has published the final rule, saying, “The revisions in this final rule focus on strengthening protections for temporary agricultural workers and enhancing the Department’s capabilities to monitor program compliance and take necessary enforcement actions against program violators.”
Changes include requiring seat belts in most vehicles used to transport workers; increasing existing enforcement provisions, collecting information about owners, operators, managers, and supervisors to better and enforce program requirements; updating or clarifying some regulations, and imposing five criteria that employers must meet to fire workers “for cause.”
“On behalf of its farmer members, Farm Bureau advocates for congressional reforms to the H-2A program,” reads the lawsuit. “Farm Bureau’s volunteer farmer members hold strong views relating to private property ownership and their exclusive rights to determine who is authorized to access their property. Farm Bureau farmers members have consistently opposed the unionization of agricultural employees. Farm Bureau’s farmer members believe that unions make resolving disputes with their employees more difficult, costly, and time consuming. Further, unions often engage in coercive tactics that put pressure on a farmer’s supply chain or attempt to negotiate the terms of production contracts to favor farmers to employ workers who are members of a union. Farm Bureau farmer members also have concerns about unions in agriculture because unions increase the cost of doing business in a local market.”
Parker explained the Bureau’s stance on unionization and why it isn’t good for farm workers; the brief lays out many of the reasons behind this position.
“We have a policy that opposes the unionization of farm workers,” said Parker. “We don’t think unionization and collective bargaining make sense in the agricultural context: strikes, boycotts, and other types of activities don’t help the farmer or the farm worker in those situations. If you have to get your crop out of the ground and your workforce strikes on you because of a collective bargaining effort, well, then the farmer obviously is going to be hurt by that. However, so are the workers because they’re not going to be working, they’re not going to get paid for the work that they do because most of these folks are paid hourly or by based on what they pick.”
NC Farm Bureau filed a similar lawsuit against the DOL in the states of Kentucky, Ohio, West Virginia, and Alabama. Another lawsuit was filed against the DOL in Mississippi by American Farm Bureau Federation, the Mississippi Farm Bureau Federation, the International Fresh Produce Association, the U.S. Chamber of Commerce, and AmericanHort.
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