Binational guestworker unions: moving guestworkers into the house of labor.

• Author: Hill, Jennifer

INTRODUCTION

In the mid-1990s, Francisco Hernandez Juarez, head of the Mexican telephone workers' union, proposed the establishment of "an International Union for Migrant Workers." (1) This idea never came to fruition, but the recent success of three unions in organizing groups of agricultural guestworkers (2) again raises the question of how unions might best represent workers who cross borders for employment.

Agricultural guestworkers are temporary employees hired in their home country who travel to the host country to work for a limited period of time. Under U.S. and Canadian immigration laws, agricultural guestworkers are intended to fill positions when a shortage of domestic workers exists. (3) Each country's guestworker program includes provisions that make guestworkers more expensive to hire than workers already in the host country; the goal is to ensure that domestic workers and labor standards are not undermined.

Unions generally have not seen guestworkers as either desirable or feasible groups for organizing. (4) In fact, unions often opposed guestworker programs, arguing that employers facing a shortage should improve wages and working conditions to attract domestic workers rather than import others. (5) In addition to being undesirable, guestworkers have been seen as largely "unorganizeable" because they are hyper-contingent workers--inherently temporary, dependent on employers for jobs and immigration authorization, and often isolated because of geography or language. (6)

The view that guestworkers are impossible to organize has changed, at least among agricultural worker unions. In the United States, the Farm Labor Organizing Committee ("FLOC") won union recognition for roughly 8500 guestworkers employed by the North Carolina Growers Association ("NCGA") in 2004, and the United Farm Workers ("UFW") organized 3000 employees working for Global Horizons in 2006. (7) In 2006, the United Food and Commercial Workers ("UFCW") in Canada organized several farms as part of a long-term outreach program. (8) These successes stand out in the midst of declining overall union density numbers (9) and abysmally low numbers among agricultural workers in particular. (10)

Organizing guestworkers is just a first step. Whether a union can effectively monitor and enforce contract improvements or other legal entitlements is still an open question. To do this, guestworkers need the same thing any other union member needs--an organization that can fully engage and represent members, as well as use organizing, education, bargaining, political action, legal advocacy, coalition work, and other tools to promote members' interests.

Each of the agricultural unions has explored some sort of work in Mexico, where the overwhelming majority of North American agricultural guestworkers live. FLOC is the only union that has built a program in Mexico to communicate with members, educate workers about their rights, and confront abuses. FLOC opened an office in Monterrey, Mexico, in 2005, and FLOC organizers started running outreach programs to educate workers in Mexico about their rights. (11) Soon after, FLOC began to receive threats. (12) The threats escalated in 2007 after FLOC began educating workers about an agreement reached with an employer prohibiting recruiters in Mexico from charging fees for visa applications, travel costs, or other expenses. (13) In the spring of 2007, Santiago Rafael Cruz, a FLOC organizer recently assigned to Monterrey, was attacked in the FLOC office and beaten to death by agents believed to be associated with corrupt recruiters. (14) If corrupt agents are willing to assassinate an organizer whose death is bound to receive attention, the likelihood that individual workers in remote towns will be able to avoid exploitation without significant help appears low. FLOC's work is a model of the importance of Mexico-based work in order to stop abuses and protect gains. Because of FLOC's lack of status as a union in Mexico, however, some mechanisms that might further the union's goals are not available, and these limits undermine the effort to provide full representation.

Part I briefly describes U.S. and Canadian guestworker programs and recent organizing campaigns. Part II lays out the notion of full representation, arguing that a program of Mexico-based work is necessary to represent agricultural guestworkers fully; moreover, union status under Mexican law is required to have access to the entire range of activities and protections that would make union work more effective. Part II then reviews some of the activities FLOC has carried out in Mexico as well as others that might be relevant to the union's success. Finally, Part II describes elements of the UFW and UFCW approaches that call for Mexico-based work.

Part III discusses Mexico's registration system. Registering is mandatory under Mexican law to function as a union in Mexico, though the process is supposed to be a formality that does not prevent legitimate unions from gaining legal status. Mexican officials, however, have been criticized for abusing the registration process and denying the petitions of independent unions seeking to register. (15) In the case of guestworkers, there are two provisions of Mexican law that are likely obstacles to registration: the requirement of an employment relationship in Mexico and the bar on foreigners as trade union officials. Part III suggests that given the broad scope of protective labor laws under Mexican law as a whole and the requirement that ambiguities be interpreted in favor of workers, neither provision should be applied so as to bar a guestworker union from registering.

If the obstacles in current Mexican law were eliminated, the door would be open for the creation of binational guestworker unions, a new phenomenon. While there already are international unions that include members from both Canada and the United States, these unions are formed when domestic workers in each country, in effect, hold hands across the border. In contrast, a binational guestworker union presents the image of one transnational worker straddling the border with a foot on each side. The image of a binational guestworker union presents challenges to the primarily domestic nature of labor law, but also allows for imagining a way to bring immigrant workers fully into the house of labor. (16)

1. GUESTWORKER PROGRAMS AND VICTORIES

   1. Historical Context: The "Perfect Immigrant"

      Guestworker programs have been called a "distinctively modern form of transnational migration." (17) It is possible to trace the evolution of guestworker programs from the early Polish agricultural workers in 19th century Prussia, to South African diamond miners brought in first from what is now Mozambique and later other areas, to domestic workers from the Philippines working throughout Asia and the Middle East, and finally to the North American agricultural guestworker programs. (18) All of these temporary labor programs were:

      compromises designed to maintain high levels of migration while placating anti-immigrant movements. They offered employers foreign workers who could still be bound like indentured servants but who could also be disciplined by the threat of deportation. They placated trade unionists who feared foreign competition by promising to restrict guestworkers to the most onerous work and to expel them during economic downturns. And they assuaged nativists by isolating guestworkers from the general population. Finally, states got development aid from poor countries in the form of ready workers, without the responsibility of having to integrate those workers or provide for their welfare. The perfect immigrant was born. (19) The Canadian Seasonal Agriculture Worker Program ("CSAWP") and the H-2A agricultural guestworker program in the U.S. are modeled on this "perfect immigrant" theory. The guestworker cycle starts with recruitment, hiring, visa processing, and travel in the home country. This is followed by travel to--and actual work in--the host country, and then a return to the home country. (20) When workers return, they carry with them the ongoing effects of any abuse, injuries, or deprivations suffered in the host country. Since most guestworkers seek repeat engagements, rehiring is also an important part of home country activity. Most guestworkers who work in the United States and Canada are from Mexico, (21) making Mexico the springboard for the current "perfect immigrants."

   2. The Rules: Making Guestworkers Expensive

      Many countries with guestworker programs attempt to establish rules making guestworkers more expensive to employ than workers already in the host country. Both the Canadian and U.S. agricultural guestworker programs include such rules.

      The current agricultural guestworker program in the U.S. is the H-2A program, a successor to the original H visa program established in the Immigration and Nationality Act in 1952, (22) and amended by the Immigration Reform and Control Act of 1986 ("IRCA"). (23) The IRCA reflects a balance between two policy goals "to assure ... employers [of low-skilled laborers] an adequate labor force while at the same time protecting the jobs of U.S. workers." (24) In order to authorize hiring of guestworkers, the Department of Labor must certify that there is a shortage of U.S. workers available and that there will be no adverse effect on U.S. workers if guestworkers are employed. (25) There is no numerical cap on H-2A visas, and 31,774 H-2A visas were issued by the Department of State in fiscal year ("FY") 2004, a dramatic increase from the 6445 in FY 1992 but still "quite small relative to total U.S. agricultural employment, which stood at 3.2 million in 2002...." (26) H-2A workers receive visas for seasonal work of up to one year, with a maximum extension of up to three consecutive years. (27)

      The H-2A statute includes provisions that seem to offer guarantees better than any accorded domestic...