Farm groups win, as Washington judge upholds housing rules

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OLYMPIA — A Washington judge on July 17 upheld coronavirus-related housing rules for farmworkers, rejecting claims by a union that the state bowed to the agricultural industry and adopted unsafe standards.

The Department of Labor and Industries and Department of Health strived to protect workers from a disease about which little was known, Thurston County Superior Court Judge John Skinder said.

“This is a difficult time and these are extremely difficult issues,” he said. “I can’t find the state acted in an arbitrary or capricious manner.”

Familias Unidas por la Justicia, a farmworker union based in northwest Washington, filed the suit, asking Skinder to send portions of the housing rules back to the agencies for a rewrite. The union’s concerns included allowing isolated groups of workers to sleep in bunk beds.

FUJ argued Washington should have followed Oregon and completely banned bunk beds. FUJ attorney Andrea Schmitt of Columbia Legal Services said the rules were the result of political pressure and that the state agencies didn’t consider the best evidence available for protecting workers.

Several farm groups intervened in the lawsuit, saying a complete ban on bunk beds would force out of work about 10,000 foreign farmworkers, far more than in Oregon. “That is a worker-driven interest,” said Sarah Wixson, the attorney for the farm groups.

United Farm Workers National Vice President Erik Nicholson allied with the farm groups in a court document. Nicholson stated that keeping out foreign workers motivated FUJ.

“FUJ’s repeated stated goal is to end the federal H-2A program in Washington and believe that a ban on bunk beds will achieve that goal,” Nicholson said.

Nicholson took offense at FUJ’s characterization of talks between himself and a grower representative over the rules as a “back-room deal.”

Like or not, the number of foreign farmworkers will grow, Nicholson said. “Our goal then is to ensure the maximum protections we can for farmworkers, whether they are domestic or H-2A workers,” he stated.

The state’s attorney, Elliott Furst, said L&I and the health department discussed what information they had about the virus and relied on expert advice.

“This was not some back-room deal cut at the expense of workers,” he said.

“Before early this year, we had never heard of COVID,” Furst said. “Everything was quickly discussed and given as much time as it possibly could. … This is just new ground for everybody.”

The farms groups said the rules have forced farms to reduce the number of workers they house. A ban on bunk beds would have cut capacity by half.

Furst said the state agencies didn’t need an economist to tell them that building new housing was impossible.

“A large number of workers here would have to leave the country,” he said.

Skinder said he read thousands of pages of records before Friday’s hearing.

“This is an extremely important case,” he said. “I thought about this case late at night and early in the morning and all throughout the day.”

The Washington Farm Bureau, Washington Growers League, Washington State Tree Fruit Association and Wafla intervened in the lawsuit.

FUJ political director Edgar Franks said in an email that the farm groups were defending “corporate farms’ access to a vulnerable work force of H-2A workers during the COVID-19 pandemic.”

“Familias Unidas considers it a victory every time we speak truth to power, so we will not stop here,” he stated.