By: Bruce Buchanan, Sebelist Buchanan Law

NLRB finds Wage Rates of Unlawful CBA Can’t be Used to Calculate H-2B Employees’ Backpay

The National Labor Relations Board (NLRB) found a carnival operator, Swyear Amusements, Inc., could not rely upon wage rates set forth in a collective bargaining agreement (CBA) with the union for its H-2B employees because Swyear Amusements unlawfully recognized the union. See Swyear Amusements, Inc. 370 NLRB No. 82 (Feb. 9, 2021). As I have previously stated, as a former attorney for the NLRB and now an immigration attorney, I find it fascinating when immigration law overlaps with labor law.


In this case, Swyear Amusements previously consented to have violated Section 8(a)(2) and (3) of the National Labor Relations Act (NLRA) by giving unlawful assistance to the Association of Mobile Entertainment Workers (AMEW), unlawfully recognizing it as the representative of its H-2B foreign worker carnival employees, and unlawfully entering into a CBA covering those employees without their majority support. The NLRB ordered Swyear Amusements to make whole its H-2B employees employed during the 2014 carnival season as a result of its unlawful recognition of AMEW.

On February 21, 2020, the Acting Regional Director for NLRB Region 1 issued a compliance specification applying a formula for calculating the amounts owed by Swyear Amusements to its 2014 H-2B carnival employees as a result of Swyear Amusements entering into an unlawful CBA. Swyear Amusements employed the carnival workers pursuant to the H-2B visa program permitting temporary employment of foreign workers in the United States. The H-2B program mandates payment of prevailing wages to H-2B foreign workers absent a lawful CBA negotiated at arms’ length.

In the underlying case, the NLRB found the CBA was the unlawful product of Swyear Amusements’ impermissible assistance to and recognition of a non-majority union; thus, the unlawful collective-bargaining agreement cannot constitute a bona fide agreement that satisfies the requirements of the H-2B visa program for payment of contractual wages in lieu of prevailing wages. Thus, the backpay owed by Swyear Amusements to its H-2B carnival employees is measured by the difference between the unlawful contractual rate it paid them and the required prevailing wages. Swyear Amusements raised several meritless arguments, including it owes zero backpay because it is a seasonal amusement company exempt from the Fair Labor Standards Act (FLSA). This argument fails because backpay liability here does not arise from the FLSA. It arises from Swyear Amusements entering into an unlawful CBA and is measured by the prevailing wages required under 20 CFR § 655.10(b)(2) where, as here, there is no lawful CBA.

If you want to know more information on immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at