COLLECTIVE STRUGGLES: A COMPARATIVE ANALYSIS OF UNIONIZING TEMPORARY FOREIGN FARMWORKERS IN THE UNITED STATES AND CANADA.

Author:Russo, Robert
 
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  1. INTRODUCTION II. CANADIAN LABOUR LAW FRAMEWORK III. AMERICAN LABOR LAW FRAMEWORK IV. CANADA'S SEASONAL AGRICULTURAL WORKERS PROGRAM (SAWP) A. The United States H-2A Visa Program B. Canadian Unionization Campaigns and SAWP Workers: Manitoba and Quebec C. Union Organizing and H-2A Workers D. Collective Bargaining and H-2A Workers: R.J. Reynolds Case Study V. COMPARATIVE CONCLUSION I. INTRODUCTION

    The use of temporary foreign migrant workers in the labor sector is part of a vibrant political and legal discussion in both the United States and Canada. Current reforms of temporary foreign worker programs in both countries call for an analysis of this workforce. This article focuses on documented temporary foreign workers performing agricultural labor in both countries. It is a comparative study of alleged violations of documented temporary foreign farm workers' rights relating to unionization in the United States and Canada.

    This article does not focus on domestic migrant farm labor in the respective countries or undocumented foreign workers, although some areas of examined law touch on both groups. The main focus of the comparative analysis in this article is to provide insight into the broader situation of documented temporary foreign farm workers in the United States and Canada. These workers are part of the H-2A Visa Program in the United States and the Seasonal Agricultural Workers Program (SAWP) in Canada. In order to compare the situations, the article first provides an overview of Canadian and U.S. labor laws, including laws' relating specifically to the hiring of H-2A and SAWP workers. It also provides a historical overview that is designed to provide a basis for a comparative qualitative analysis of Canadian labour and migration laws. Finally, there are case studies of unionization efforts in both countries involving H-2A and SAWP workers.

    This article analyzes the responses to documented temporary labor migration and unionization in both countries in order to map out their differences and similarities. The analysis takes into account the respective countries' relevant social and labor history and legal systems. The comparison focuses specifically on analyzing the differences and similarities in collective organizing of H-2A and SAWP workers. It examines the responses generated by alleged violations of law relating to collective bargaining in the two countries. The "recent" history and responses in both countries are defined in comparative terms as being after the end of the Bracero Program in the United States in the 1950s, the beginning of the U.S. H-2A Visa Program, and the creation of Canada's SAWP in the 1960s.

    The comparison illustrates that the legal situation of these foreign farm workers in both countries does not represent an exceptional situation. The historical and social context of farm labor and the use of an unfree population are not limited to a distinct North American farm history or racial attitudes towards using foreign farm labor. (1) The legal problems encountered in applying collective bargaining principles to H-2A and SAWP workers are related to the specific circumstances of the migration itself: its temporary nature, the vulnerability of its subjects, and its disproportionally unidirectional benefits to developed societies.

    There are specific reasons for selecting Canada and the United States for a qualitative comparison and for the relatively narrow focus of this article. In both Canada and the United States, guest worker programs originated within their respective agricultural sectors. (2) Although there is disagreement about application of law to documented temporary foreign workers in both countries, current migration scholarship reveals a near consensus that both systems have generated legal responses that are inadequate to the alleged violations of collective bargaining rights. (3) Compared to Canada, the United States under the Trump administration is witnessing a much broader debate over the presence and conditions of migrant workers, both documented and undocumented, within its territory. The workers' cause has been taken up by a variety of NGOs and public interest lawyers, and the United States has witnessed greater international recourse by workers' advocates. (4)

  2. CANADIAN LABOUR LAW FRAMEWORK

    Labour law in Canada falls under both federal and provincial jurisdiction, with both the federal Parliament in Ottawa and provincial legislatures able to enact labour legislation. (5) The provinces have gained major jurisdiction due to various judicial rulings that have limited federal labour jurisdiction to a relatively small range of matters. (6) Those labour matters under federal jurisdiction fall under the Canada Labour Code, (7) while the provinces typically have labour legislation designated as Labour Relations or Industrial Relations Codes or Acts. (8) The section of the Canadian Constitution Act (1867) dealing with "property and civil rights" gives provinces a civil right over employment contracts, which typically place restrictions between employers and employees. Federal jurisdiction over some employment matters arises out of S. 91 of the Constitution Act (1867), which gives the federal Parliament legislative authority over federal employees.

    The Canada Labour Code is generally limited in its application to workers in "works or undertakings connecting a province with another province or country" (9): international shipping, air transport, communications, banks, federal crown corporations, and defined operations "declared by Parliament to be for the general advantage of Canada or of two or more provinces." (10) Despite the federal jurisdiction over international matters, including the subjects of naturalization and aliens, most documented temporary foreign workers in Canada--including SAWP workers--are deemed by the federal government to fall under provincial jurisdiction. (11)

    As of February 2017, all Canadian provinces, with the exception of Ontario and Alberta, grant collective bargaining rights to farm workers through provincial labour legislation. (12) Alberta has the most extensive prohibition, banning all agricultural workers from engaging in any type of collective bargaining activity. (13) Ontario was the scene of a protracted legal battle beginning in the 1990s. A left-leaning NDP government extended full collective bargaining rights to all legally employed farm workers in the province in 1994, (14) only to have the legislation repealed by a right-leaning Progressive Conservative government the following year. (15) The current legislation in Ontario entails a modified structure of farm worker associations but nevertheless excludes farm workers from taking advantage of collective bargaining provisions available to most other workers through provincial labour legislation. (16) Finally, it should be noted that Canada has no federal legislation designed specifically relating to employment standards, collective bargaining, and documented foreign migrant workers in its territory. The Canadian government refers all questions regarding SAWP workers and employment standards to separate provincial departments. (17)

  3. AMERICAN LABOR LAW FRAMEWORK

    Labor law in the United States consists of numerous state and federal laws. Unlike Canada, American federal law has general jurisdiction over workers' rights to collective bargaining, but there are exceptions to this rule. (18) The source of federal legislative primacy in the United States arises from the Supremacy Clause of the U.S. Constitution. (19) The basis for federal jurisdiction specifically relating to labor law originates from the Commerce Clause of the U.S. Constitution. (20) This clause allows the U.S. Congress to enact legislation regulating commerce between American states. (21) Federal labor law legislation is predicated on the theory that the federal regulation of labor-management relations is "necessary to diminish industrial strife that should disrupt interstate commerce." (22) From the Supremacy and Commerce Clauses, U.S. courts have created a "doctrine of preemption" and the notion that certain federal legislation is intended to deprive U.S. states of jurisdiction in many labor law matters. (23)

    Current federal U.S. labor law is largely a product of New Deal labor reforms signed into law during the 1930s. Arguably the most important legislation to emerge from President Roosevelt's package of labor reforms was the National Labor Relations Act of 1935 (NLRA), popularly known as the Wagner Act. (24) The Wagner Act provided basic workers' rights in union organizing and collective bargaining, while prohibiting certain employer and union conduct that could make employment conditional on refraining from joining a union or mandatory union membership. (25)

    The NLRA does not apply to H-2A workers in the United States or to any agricultural workers. Some arguments similar to those seen in the Canadian context for excluding farm workers from unionization appear in U.S. labor history. (26) Apart from the NLRA, American labor laws have also generally excluded large groups of workers from coverage. (27) More specifically, the exclusion of agricultural workers from the NLRA had no "logical basis" other than the fact that they had "little political clout when the legislation was enacted." (28) Interestingly, both the 1933 National Industry Recovery Act (29) (declared unconstitutional by the U.S. Supreme Court) (30) and the initial version of the Wagner Act in 1934 had no statutory exclusions of agricultural workers under their respective collective bargaining provisions. (31) Legislative hearings on the Wagner Act, conducted in 1934 in the House of Representatives and the Senate, "hardly discussed" farm workers. (32) When Senator Wagner reintroduced the legislation in 1935, the Senate report on the bill indicated that agricultural laborers had been excluded for "administrative reasons." (33) An attempt in 1935...

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