The East and West Coasts’ labor laboratories never fail to send out alerts on trends worth watching, and unions’ tactics toward farm workers are no exception. That includes how some states navigate around these workers being generally excluded from union representation under the NLRA.
The Big Labor-lobbied approach hasn’t gone as well as unions anticipated, including in California, where the United Farm Workers (UFW) previously exchanged fighting words with the state’s Agricultural Labor Relations Board. Currently, in New York, the UFW is embroiled in a case that could be a barometer of how much states can skirt federal law in this industry.
A brief legal history: 2019’s Farm Laborers Fair Labor Practices Act made farmworkers eligible to unionize in New York. This law didn’t allow these unions to call strikes, nor did it issue guidance on enforcement of union contracts. Yet in 2021, New York gave the green light for farm workers to unionize via card check, and then it was off to the races for the UFW, which has claimed over half of the fifteen New York farms that have since unionized through card check “wins.”
The stakes: In New York, 50,000+ farm workers seasonally head to apple and cherry orchards, vineyards, and dairy farms that have been family-run for generations. These businesses have been thrown into disarray by UFW scooping up workers without elections and, via state law, forcing employers to arbitration for contracts. Now, Wafler Farms is fighting back.
The H-2A visa lowdown: Wafler Farms regularly employs workers who hail from Jamaica and hold temporary H-2A visas, which allow them to enter the U.S. and work for a specific employer. The DOL mandates clean and safe housing as part of their employment, but UFW is pushing for much more, including 401(k) plans, bonuses, and paid holidays. It goes without saying that the UFW aims to drastically increase Wafler Farms’ labor costs, which will probably cause a reduction in workers. Those who are dismissed would also lose their legal status to remain in the U.S.
The ongoing dispute: Wafler Farms opted not to recognize UFW. The farm is also challenging both the card check process and whether H-2A workers can unionize, and the case now sits with a state court. Further, the UFW filed a ULP charge with New York’s Public Employment Relations Board (PERB), but even if PERB sides with UFW, the issue of contract enforcement remains unknown.
Can H-2A visa workers unionize? Not under federal law. In August 2024, a federal judge ruled that the Biden administration went too far in trying to extend NLRA protections to H-2A visa workers who attempted to organize and otherwise participate in concerted activity within 17 GOP-led states. California and New York see things differently.
Meanwhile, in another current case, 20 California farm workers and 2 in New York are challenging state laws that allow unionization via card check. These workers argue that union reps gained certification through coercion and lies facilitated by the lack of a secret vote.
The takeaway: As we recently discussed in light of several industries, unions frequently hurt workers through their “representation,” and they want to spread that effort into the agricultural industry. How the Wafler Farms case is resolved in court could help predict how much unions can try to get away with against agricultural employers in the future.
