Jan 2, 2024

Farm Labor Review: DOL’s end run

One might think, if even just for a moment, that when the U.S. Supreme Court speaks specifically to an issue, government agencies would respect the Supreme Court’s opinion.

Sadly, and to the detriment of agricultural employers and their farmworkers, the Department of Labor (DOL) either doesn’t have that respect or simply wants to thumb its nose at the Court.

In 2021, the Supreme Court found that a California regulation allowing unions a “right to take access” to a farmers’ property for unionization activities was a per se physical taking of the farmers’ property under the Fifth and Fourteenth Amendments. The case, known as Cedar Point, et al, v. Hassid, et al, was a six to three decision by the Court, in favor of the farmers.

Following that ruling in June 2021, California farmers rejoiced. At the same time, the farmworkers who had been targets of the union’s threats, coercion, misrepresentation and harassment rejoiced as well. The ruling was seen as a respite from the intimidation routinely employed by union organizers anxious to separate farmworkers from their hard-earned cash.

Keep in mind that these union organizers were the same folks who had previously hoodwinked the California legislature and governor into eliminating the exemption from overtime in agriculture, resulting in significantly reduced earnings for farmworkers.

Apparently enraged by the Court’s turning back of this unconstitutional activity in California, the anti-farmer union activists have persuaded the DOL that the Supreme Court has no clue when it comes to interpreting the Constitution, and decided a two-pronged end run around the Court and the foundational law of our Republic was in order.

The DOL’s Occupational Safety and Health Administration (OSHA) has proposed a new regulation to effect this end run. This proposal would allow union representatives to accompany OSHA inspectors on a “walkaround inspection” of farm and ranch families’ property. OSHA suggests these union representatives must be allowed this access to the farm or ranch “when they are reasonably necessary to aid in the inspection.” The agency maintains that this “representation during the inspection is critically important to ensuring OSHA obtains the necessary information about worksite conditions and hazards.”

What’s wrong with the OSHA inspectors? Are they not capable of finding their way around or is the agency concerned that without an anti-farmer union activist in tow, the OSHA inspectors will get lost on the farm never to be heard from again? Wouldn’t it be less harmful to farmworkers and provide greater assurance unions wouldn’t be terrorizing them to simply outfit the OSHA inspectors with an AirTag so they could be found if the inspectors somehow became misplaced?

Similarly, the DOL published a second proposed rulemaking in a similar vein as it continues giving the Supreme Court a one-fingered salute. This proposal is an even more egregious affront to the determination of the Court and its Cedar Point decision.

This proposed regulation would “allow” farmworkers on H-2A visas to “invite” union representatives into employer-provided housing. This would be housing either located on the farm or ranch or otherwise paid for by the employer. This employer-provided housing is a requirement of existing regulations.

If this wasn’t so openly smacking dab right in the Court’s face, this proposal doubles down. It would require that employers provide a list of workers to labor organizations that request them. What responsible employer would agree to provide these ill-intentioned activists who will seek to threaten, coerce, intimidate and harass their workers access to their information? No employer I know of would expose their farmworkers to this type of peril.

The National Council of Agricultural Employers will be formally objecting to both proposed regulations, and we encourage all agricultural employers to do the same. The Court should not be placed in a position of having to revisit this issue, and particularly not so soon after its prior decision. The Court meant what it said.

The coyote shouldn’t be placed in charge of the chickens, if you want the chickens to survive.

— Michael Marsh, president and CEO of the National Council of Agricultural Employers