Carnivals, H-2B Workers, the NLRB, and a Company Union

By David North on February 16, 2021

I have known since I was a child that carnival workers are often exploited. I have known for half a dozen years, thanks to the reporting of my former colleague Jerry Kammer, that foreign workers are among the victims.

But here is a carnival labor market story with several new twists. The National Labor Relations Board, which rarely deals with migration issues, is involved, as is a corrupt "company union", a concept I have not thought about in decades.

And two of the three NLRB members, all of whom voted unanimously for the workers, were Trump appointees. The NLRB in recent years has been known for its pro-employer tilt, but not in this case.

Another unusual element is the (evil) creativity of the employers; they found an obscure part of the H-2B law that says that H-2B workers must be paid the prevailing wage, unless there is a labor union agreement to pay the workers at a lower rate.

Why such a rule exists is a major puzzle, but carnival operator Swyear Amusements knew about it and used the provision to lower the wages it paid. Swyear said that it had an agreement with a "union" called the "Association of Mobile Entertainment Workers".

In earlier days, such an arrangements were called "sweetheart agreements", and were hallmarks of company unions, entities controlled not by the members, but by the employers.

In this case, the NLRB ruled that the union had been foisted on the workers, that the agreement was null and void, and that back wages and interest of $383,000 was due. Some of the workers, all with Hispanic names, were awarded sums that reached just over $10,000.

In better day, such an employer would be kicked out of the H-2B program for a year or so, but the current Department of Labor debarment list includes only seven employers over the last three years and Swyear is not on the list. Maybe the Biden administration will restore the list to its former usefulness.

For more on the current story, see this Law360 article (behind a partial paywall), and for a years-earlier account of the practices of the same company as reported by the New York Times, see here.