Link to the article in the Capital Press

By Don Jenkins, Capital Press

A federal judge in Kentucky issued an injunction Monday against a U.S. Department of Labor rule that gives foreign farmworkers union rights, dealing a second blow to Biden administration H-2A regulations.

The rule violates the National Labor Relations Act, which excludes farmworkers from collective-bargaining rights, said U.S. District Judge Danny Reeves in Lexington, Ky.

Reeves struck down several other provisions of the rule, including one that forces farms to let union representatives visit on-farm housing.

The judge stopped short of issuing a nationwide injunction, but it will cover members of the National Council of Agricultural Employees, and the Worker and Farm Labor Association based in Lacey, Wash.

The council's president and CEO, Michael Marsh, said the organization's members hire 90% of H-2A workers. The Labor Department will have to decide whether to enforce the rule on the remaining employers, he said.

"It would be very few," Marsh said. "I wouldn't be surprised if DOL formally withdrew the rule."

The Labor Department referred questions to the Department of Justice. The Justice Department did not have an immediate comment.

The Labor Department adopted the rule last spring, saying it will protect foreign farmworkers. Without the rule, farms would have an incentive to hire foreign farmworkers over U.S. workers, according to the department.

U.S. District Judge Lisa Godbey Wood in Southern Georgia last summer issued an injunction barring the rule from being enforced in 17 states, including Idaho. Godbey limited the injunction to the states that brought the suit.

The Labor Department went ahead with the rule in the 33 other states, including Washington, Oregon and California. Farmers and groups filed lawsuits in Kentucky, North Carolina and Mississippi to expand the injunction.

Judges in North Carolina and Mississippi have yet to rule. Reeves' ruling extends the injunction to Alabama, Kentucky, Ohio and West Virginia, as well as members of five associations involved in the lawsuit.

Worker and Farm Labor Association CEO Enrique Gastelum said he hoped the Labor Department won't try to enforce parts of the rule in parts of the country. "That would be ridiculous," he said.

The Labor Department contended the rule does not grant farmworkers collective-bargaining rights. Both judges have rejected the department's claim.

The department did not use the words "collective bargaining," but prohibited farms from acting against farmworkers who organize unions and take collective action to better working conditions and wages.

"The final rule not so sneakily creates substantive collective bargaining rights for H-2A agricultural workers through the prohibitions it places on the employers," Reeves wrote.

The department failed to give good enough reasons for aspects of the rule, including one that makes farms responsible for making sure farmworkers wear seatbelts in company vehicles, according to Reeves.

Monitoring the use of seatbelts by adults does nothing but make working conditions degrading, the judge stated.

Granting union leaders access to farmworker housing violates a U.S. Supreme Court decision striking down a California regulation, Reeves stated. The regulation was an unconstitutional taking of property, the court ruled.

Reeves also struck down requiring farms to pay piece-rates rather than an hourly wage if piece-rates resulted in higher pay. The department failed to give sufficient reason for dictating pay methods, according to the judge.