Double Denial: How Both the DOL and Organized Labor Fail Domestic Agricultural Workers in the Face of H-2A

• Author: Alison K. Guernsey
• Position: J.D. Candidate, The University of Iowa College of Law, 2008; B.A., University of Michigan, Ann Arbor.
• Pages: 279-323

Page 279

Alison K. Guernsey: Thank you to my friends and family for their support throughout law school. Deep gratitude to Volumes 92 and 93 of the Iowa Law Review for their excellent guidance and editing skills. Most of all, thank you to those attorneys with whom I worked at the Northwest Justice Project-your dedication is an inspiration.

I Introduction

For decades, agricultural employers have been complaining about a pending shortage of labor in the fields.¹ The importation of guest workers, or foreign laborers who work under temporary visas in the United States, is often their proposed solution.² As the regular use of guest workers has spread across the country, however, the Department of Labor ("DOL"), the entity responsible for administering the H-2A guest-worker program, has failed to ensure that the importation of foreign workers does not adversely affect the wages and working conditions³ of the domestic workforce.⁴ These adverse affects have intensified as farmworker unions have begun to sidestep their traditional domestic constituencies in order to represent the increasing number of guest workers entering the country.⁵

This Note begins by discussing the history of the United States' guest- worker programs and the history of organized labor in the fields.⁶ Part II describes the current federal temporary agricultural guest-worker visa program and its statutory and regulatory requirements.⁷ Part III addresses the deficient manner in which the DOL currently administers the H-2A program, focusing specifically on the agency's failure to analyze applications for foreign workers adequately in light of the program's statutory criteria.⁸Part III further highlights the impact that the DOL's mistaken approval of Page 280 applications for foreign workers has on the domestic labor force and proposes certain changes to the program that may mitigate this negative impact.⁹

Part IV contends that to effect these changes, organized labor must assume a greater advocacy role.¹⁰ It then outlines the ways in which farmworker unions currently fail to help protect local workers by readily contracting with entities that bring H-2A workers into the United States.¹¹This Note concludes by detailing how farmworker unions can better ensure that their representation of H-2A workers does not compromise their role as advocates for the domestic labor force.¹² With a few changes to the H-2A guest-worker program and its implementation under the supervision of the DOL, as well as changes within organized labor, agricultural employers may be able to obtain much-needed labor without adversely affecting the domestic workforce.

II Guest-Worker Programs and Farmworker Organizing

Fields and orchards filled with foreign workers are nothing new for the United States.¹³ For many of these foreign laborers, however, the dangerous and arduous nature of working in the fields¹⁴ often makes agricultural labor the "last resort."¹⁵ At its core, a worker's decision to work in the field in the United States stems from discrimination and lack of education and opportunity, as opposed to occupational preference.¹⁶ Still, the workers arrive in record numbers,¹⁷ both with and without the sanction of the U.S. Page 281 government.¹⁸ Sometimes foreign workers are welcomed into the farmworker movement with open arms; sometimes they are shunned.¹⁹ A history of guest-worker programs and the programs' relationship to the organized-labor movement is helpful in understanding the situation of the domestic farmworker today and the impact of temporary guest-worker programs on the local labor force.²⁰

A The Bracero Program: 1940s and 1950s

While the United States has a long history of using foreign labor for domestic agricultural needs,²¹ the historical labor initiative that had the largest impact on the nation was the Bracero Program.²² As men left the country to fight in World War II, growers struggled to find hands to harvest their crops.²³ In 1942, these growers looked to Mexico to provide the labor that the United States lacked.²⁴ Faced with the powerful political pressure of an agricultural industry without sufficient labor, the U.S. government quickly approved the Bracero Program, one of the country's most expansive agricultural guest-worker programs to date.²⁵

Under the program, the United States helped ease growers' fears of an impending labor shortage by issuing temporary work visas for Mexican Page 282 nationals who were willing to work in agriculture.²⁶ President Truman's Commission on Migratory Labor spoke about the agreement purely in labor terms.²⁷ The agreement was a "collective bargaining situation in which the Mexican Government [was] the representative of the workers and the Department of State [was] the representative of our farm employers."²⁸ And even though the labor shortage caused by World War II provided the original justification for the Bracero Program, the program continued after troops began arriving home.²⁹ Between 1942 and 1964, it brought close to 400,000 Mexican workers per year into the United States.³⁰ By the program's end, the United States had authorized entry for close to 4.6 million Mexican farmworkers.³¹

While the Bracero Program seemingly included provisions designed to protect the local labor force,³² its existence coincided with a general "depression of agricultural wages and . . . displacement of domestic workers."³³ This displacement happened, in part, because the agencies overseeing the program failed to enforce the substantive provisions of the Page 283 braceros' contracts,³⁴ which outlined and mandated basic wage and working conditions. The agencies' inattention to the program's requirements allowed growers to undercut its provisions, provisions that the U.S. government had established (in its "collective bargaining" role with the Mexican government) as the minimum required to protect the local workforce while still providing employers with labor.³⁵

Despite hopes to the contrary, the Bracero Program also failed to discourage undocumented laborers from entering the United States.³⁶ This failure worked to undercut wages and working conditions for the local labor force. To obtain a work visa under the Bracero Program, the U.S. government required Mexican workers to jump numerous bureaucratic hurdles at a time when those same workers could easily move across the border without authorization; consequently, workers often did so.³⁷Additionally, when Congress reauthorized the Bracero Program, it made undocumented workers already in the United States the preferred recipients of the new bracero visas.³⁸ Not surprisingly, workers realized that clandestinely crossing the border was the easiest way to become eligible for a visa.³⁹ Confronting an undocumented workforce that was willing to work for less and free from the contractual requirements of the Bracero Program, growers hired without regard for whether a worker had authentic work permission.⁴⁰ Consequently, a poorly enforced program and incentives to circumvent the program altogether combined to affect the local labor pool by lowering wages and creating sub-par working conditions.

Although numerous methods existed for growers and undocumented workers to undercut the Bracero Program, many Mexican nationals were active participants.⁴¹ By the time the Bracero Program ended in 1964, it had become one of the forces that ultimately "institutionaliz[ed] the Page 284 dependence of many rural Mexicans on the U.S. labor market"⁴² and helped set the stage for the future influx of foreign agricultural labor.⁴³

B The Emergence of Farmworker Unions

Although farmworkers are seemingly an ideal union constituency, organized labor only recently emerged in the agricultural industry and was not heavily involved in farmworker issues during the days of the braceros.⁴⁴Early organizers faced several barriers when dealing with farmworkers. First, farmworkers generally have found that "exiting the farm labor market [is] a surer path to upward mobility than joining or forming a farm labor union to voice demands for higher wages and benefits."⁴⁵ In other words, farmworkers look to improve life by leaving the field, not by bargaining. The geographically dispersed nature of farm work poses additional barriers to effective organizing.⁴⁶ Perhaps most detrimental to organizers' efforts, however, is the government's slow recognition of farmworkers' need for legal protection. In fact, the National Labor Relations Act ("NLRA"), which...