Crew-based hiring explains why recruitment and retention are often part of the same labor market function in agriculture. Indeed, an analogy to obtaining irrigation water may be helpful to understand the recruitment and retention options. There are two major ways to supply irrigation water to crops: a field can be “flooded” with water so that some trickles to each tree or vine, or fields can be irrigated with a drip system that involves laying plastic pipes down or under the rows and dripping water and nutrients to each tree or vine. If water is cheap, farmers flood fields with water; if water is expensive, farmers may invest in drip irrigation systems. The analogy to recruitment and retention is clear: farmers more often work collectively to flood the labor market with workers, usually by getting border gates opened or left ajar, instead of recruiting and retaining the best farm workers for their operation, the drip irrigation model. The best way to ensure plenty of irrigation water is to invest in more dams and canals; the best way to flood the labor market is to invest in politicians willing to ease access to foreign workers.Farm workers were not granted federal collective bargaining rights in the 1935 National Labor Relations Act, and remain excluded from the NLRA. In 1975, California enacted the Agricultural Labor Relations Act to provide state-level organizing and bargaining rights: the purpose of the ALRA was to end a decade of strife in the fields, to “ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations.” The ALRA includes three major elements: organizing and bargaining rights for farm workers, unfair labor practices that employers and unions can commit when they interfere with these worker rights, and a state agency,plant benches the Agricultural Labor Relations Board , to supervise elections in which farm workers decide if they want to be represented by unions and to remedy ULPs.

Between 1975 and 1984, there were over 1000 elections on California farms, and unions were certified by the ALRB to represent workers on 70 percent of these farms. Since then, there have been fewer than 250 elections, and unions were certified on less than 50 percent of the farms on which they requested elections .Farm worker unions were often unable to negotiate first agreements with most of the farms on which they were certified to represent workers, and in many cases, were unable to re-negotiate first agreements. The number of collective bargaining agreements in California agriculture has never exceeded 300 at any time, and in 2002 was about 225—80 percent of the current contracts cover 3-4 workers under Christian Labor Association contracts with dairy and poultry farms. The United Farm Workers , Teamsters, and other unions representing field workers have fewer than 30 contracts covering less than 25,000 workers. Unions such as the UFW charge that farm employers are able to avoid reaching first or subsequent contracts by refusing to bargain toward agreement. In 2002, the UFW led an effort to amend the ALRA to provide for state intervention to ensure contracts on farms on which workers voted for union representation. The UFW’s original goal was binding arbitration, under which a union and employer that cannot negotiate a contract typically go through a three-step procedure. First is mediation, when a neutral third party listens to each party separately and makes suggestions to narrow differences and allow them to reach a voluntary settlement. Second is fact finding, when a neutral party listens to both sides and proposes a non-binding settlement. Third is binding arbitration, when a neutral party proposes either any settlement deemed best or when the arbitrator is required to recommend one of the party’s final offers at the bargaining table. Binding arbitration is normally restricted to public employees such as police and firefighters who cannot strike lawfully.

The California Legislature approved binding arbitration in agriculture, but Governor Gray Davis threatened to veto the bill, so a last-minute compromise, “mandatory mediation,” was approved. Mandatory mediation, which went into effect January 1, 2003, requires unions and farm employers to bargain for at least 180 days for a first contract. If they cannot reach agreement, a mediator tries to help the parties to resolve their differences for another 30 days but, if mediation fails to produce an agreement, the mediator must, within 21 days, recommend the terms of a collective bargaining agreement that the ALRB can then impose on the parties. Although mandatory mediation might result in a greater number of collective bargaining agreements, other factors suggest that the new law will not affect a large number of agricultural employers or employees while it is in effect through at least 2007.The hired farm workers of tomorrow are growing up today outside the U.S., usually in rural Mexico and Central America. A major federal policy issue is what conditions, including what housing provisions, U.S. farm employers should satisfy to get access to these foreign workers. The U.S. has a guest worker program for farm workers, known as the H-2A program. It requires DOL to certify a farmer’s need for H-2A guest workers. In order to obtain certification, a farmer must satisfy certain recruitment, wage, and housing regulations, including applying for certification and trying to recruit U.S. workers at least 45 days before they are needed, offering to pay the higher of the minimum, prevailing, or Adverse Effect Wage Rate, and offering to provide free and approved housing to out-of-area U.S. and H-2A workers.Except for sheep farmers, California farm employers have traditionally not obtained workers through the H-2A program; most admissions have been in eastern states such as North Carolina. But the number of H-2A admissions in these eastern states has been rising, and H-2A workers for non-shepherding jobs were approved in California in March 2002, when a Ventura county custom harvester/FLC brought 38 H-2A workers from Mexico to California to harvest lemons, possibly a precursor to more H-2A farm workers.

If the H-2A program expands, there would likely be an increased demand for barracks or dorm style housing, and inspectors to check it. Instead of expanding the H-2A program, three other concepts are being debated to regulate the access of farmers to foreign farm workers: temporary guest workers, legalization, and earned legalization. Temporary guest workers are non-immigrants, persons in the U.S. to work generally for one employer, who must leave when the work ends—guest workers, under U.S. law, do not generally obtain any preference for admission as immigrants. During the 1990s, the SAWs—unauthorized farm workers legalized in 1987- 88—and their replacement with newly arrived unauthorized workers increased the risk to farmers that they may be fined or lose their workers at critical harvest times. Farmers could avoid such risks by having DOL certify their need for H-2A workers, but certification required offering at least a DOL-set wage and free housing. Many California farmers want an alternative guest worker program that does not require certification, and they do not want to offer free housing to legal guest workers. In July 1998, the U.S. Senate approved one grower proposal, the Agricultural Job Opportunity Benefits and Security Act ,rolling bench which avoided the need for farmers to be certified by creating a registry in each state to enroll legally authorized farm workers. Under AgJOBS, farmers would apply to the registry, for example, requesting 100 workers. If only 60 registry workers were available, the farmer would be automatically “certified” to recruit and have admitted to the U.S. 40 foreign workers. AgJOBS would also end the housing requirement by allowing the governor to certify that there is “sufficient” farm worker housing in the area, and then the farmer could offer a housing allowance equivalent to “the statewide average fair market rental for existing housing for nonmetropolitan counties for the State…based on a two bedroom dwelling unit and an assumption of two persons per bedroom,” about $500 a month in the northern Sacramento Valley and $800 a month in San Benito in 2000. However, most California agriculture is in metro counties, where 40th percentile fair market rents in 2000 are about $525 to $1,100 for two-bedroom units. Under AgJOBS, typical housing payments for guest workers would have been $125 to $150 per worker per month in California. President Clinton opposed AgJOBS, and issued a statement: “When these programs were tried in the past, many temporary guest workers stayed permanently and illegally in this country. Hundreds of thousands of immigrants now residing in the U.S. first came as temporary workers, and their presence became a magnet for other illegal immigration.” In 1999, after consultations with worker advocates, a new concept was added to AgJOBS: earned legalization. Legalizing unauthorized farm workers might encourage many of them to leave for  non-farm jobs, as SAWs did in the 1990s, so farmers who wanted guest workers and worker advocates who wanted legalization agreed to a program that would grant unauthorized workers a temporary legal status.

Under their compromise, unauthorized workers who could prove that they did 100 or 150 days of farm work in the preceding year would get a temporary legal status that permitted them to live and work in the U.S.In order to maintain this temporary legal status, and eventually apply to become a regular U.S. immigrant, the temporary worker would have to do a certain amount of farm work each year for several years, e.g., 80 or 100 days of farm work for three to five years. Thus, after several years and 240 or 500 days of farm work, the temporary legal worker could earn an immigrant status. Farmers and worker advocates argued over the details of a revised AgJOBS program that included earned legalization throughout 2000, with farmers wanting more days of farm work to qualify for eventual immigrant status, and worker advocates fewer days. After the November 2000 elections, some worker advocates, noting that both U.S. President Bush and Mexican President Fox favored a new guest worker program, agreed to a compromise that won the endorsement of the United Farm Workers and the National Council of Agricultural Employers. Under this December 2000 compromise, unauthorized workers who did at least 100 days of farm work in the preceding 18 months could qualify for temporary legal status, and they could convert this temporary legal status into an immigrant status if they did at least 360 days of farm work in the next six years. The compromise included freezing the minimum wage that had to be paid to foreign workers for several years and giving farmers the option of providing a housing allowance rather than housing to workers. The AgJOBS compromise came close to Congressional approval in December 2000, but was blocked by those opposed to any type of amnesty for unauthorized foreigners. The atmosphere changed in 2001, especially after U.S. President Bush and Mexican President Fox met in Mexico in February 2001 and agreed to establish a migration working group that was charged with creating “an orderly framework for [Mexico-U.S.] migration that ensures humane treatment [and] legal security, and dignifies labor conditions.” Senator Phil Gramm became the leading proponent of the guest worker-only approach, favoring a program that would permit unauthorized Mexicans already in the U.S. to obtain seasonal or year-round work permits: seasonal workers could return to the U.S. indefinitely, and year-round workers could remain in the U.S. three years, and then they would have to stay in Mexico at least one year before returning legally. U.S. employers and guest workers would pay social security taxes to a trust fund that would reimburse U.S. hospitals that provided emergency medical care for injured guest workers; the balance of the social security taxes paid would be placed in individual IRA-type accounts that workers could receive when they surrendered their work permits to U.S. consulates in Mexico. Gramm’s proposal covers Mexicans employed in all U.S. industries, but does not include a path to immigrant status. The other extreme is legalization. Under a plan embraced by the AFL-CIO and many church and ethnic groups, unauthorized foreigners in the U.S. from any country, and employed in any industry, could become immigrants, and then sponsor their families for admission. Rep. Luis V. Gutierrez introduced a bill that would grant immigrant status to all persons who were in the U.S. at least five years, and temporary legal status to those in the U.S. less than five years.