Usually Republican appointees favor employers of foreign farmworkers, rather than the workers.
Usually, such appointees do not seek to use labor unions to advance GOP policies.
While both of those generalizations remain sound ones, we saw exceptions to both this past week in Washington.
In the first, a long-time GOP appointee, hearing arguments in the U.S. Court of Appeals for the District of Columbia, lashed out from the bench at a long-time advocate for farm employers.
In the second, the departing acting deputy secretary of DHS signed an agreement with the ICE officers' union, seemingly giving it veto power over DHS policies in the future, which would tie the hands of the incoming Biden administration.
The Farmworkers. The principals in the first matter, who probably have known each other for something like 40 years, were Court of Appeals Judge Laurence Silberman, 85, once the solicitor of labor under Richard Nixon, and the dean of the H-2A employers' attorneys, Monte Lake, who has been practicing law — often for farm employers — for 47 years.
Lake was arguing that his client, a New Jersey nursery and a major user of H-2A farmworkers, was not violating the rules of the program when it routinely paid its foreign workers more than its domestic workers. Then, according to a Law360 report:
Judge Silberman leaned on his years as top legal officer at the U.S. Department of Labor as he took the lead in questioning during the telephone oral arguments, and he pulled no punches when he wasn't satisfied with the answers that Overdevest Nurseries was providing as it argued that it didn't short its domestic workers.
The judge — who spent four years at the DOL under the Nixon administration — quickly lost patience with arguments that the nursery wasn't aware that the government switched up the rule in 2010.
"That and 10 cents gets you on a trolley cart," he said. "If the client didn't hire a lawyer to read the rule, that's his problem."
(I am quite sure that the judge said "trolley car", not cart, and that the reporter was too young to get the reference; when I arrived in D.C., in 1961, the trolley cars were in their last days.) Lake had argued that the H-2A workers had different and more skilled jobs than the American workers hired by the employer. He said that the foreign ones were "order pullers" who needed to know how to distinguish among thousands of different plants grown by the employer, and that the Americans did less skilled work.
The American workers had won $143,000 in back pay at the trial level, and their employers had appealed. CIS will follow the case and report on the decision of the three-member review panel.
The Union. In all my years in Washington I have never heard of any administration, much less a Republican one, signing an agreement with a labor union in hopes of impacting future policies after that administration has left office. I must give the GOP an A-plus for creativity on this one.
The union, though part of the AFL-CIO, does not have the viewpoint of say, the auto or steel workers. It is the National Immigration and Customs Enforcement (ICE) Council of AFGE, the American Federation of Government Employees. The Council, unlike most unions, endorsed Trump for re-election.
The agreement, signed by then Acting Deputy Secretary of DHS, Ken Cuccinelli, not only said that the agency could not change its basic rules unless it had the blessing of the union, it stipulated that, according to a report in The Hill, that:
The agreement contains other unusual aspects, including a provision that bars any legal challenges to the contract for another eight years — a move that would kick any negotiations beyond the reach of the Biden administration.
It also gives the ICE union far more official time — the number of hours employees are allowed to work on union activity — than any other DHS agency union.
It's also not clear that Cuccinelli even had the authority to sign the agreement. A federal court in March found his lengthy status as an acting official violated federal vacancy laws and invalidated some of his other official decisions.
The frozen-in-for-eight-years clause, and the extended official time clause — which allows union officials to work for the union while collecting their federal paychecks — would have been termed a "sweetheart contract" in the days of Jimmy Hoffa.
It is likely that the incoming Biden administration will try to find a way around the new contract.