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October 2012, Volume 18, Number 4

UFW, ALRB, Unions, DOL

UFW. Pacific Triple E, a tomato grower in Tracy, signed a three-year agreement with the UFW on May 22, 2012 covering a peak 800 workers. The UFW was certified to represent Triple E in 1989. Operating Partner Jon Esformes, who took over in 2011, said it was time to negotiate a contract.

Under the new contract, tomato pickers will earn at least $8.50 an hour under piece rates of $0.56 to $0.575 per 25-pound bucket in San Joaquin county; piece rates are slightly higher in Merced and Fresno counties. The previous piece rate was $0.475, so the immediate increase for most pickers is 10.5 percent. The Pacific Triple E contract includes an employer contribution of $0.10 an hour to the UFW's JDLC pension plan, a grievance procedure and a seniority system, and three paid holidays.

The contract prohibits Triple E from requiring "cupped" or overfull buckets and discourages workers from "fluffing" their buckets to make them appear fuller than they are. Workers are to receive 1.5 times their usual pay for hours worked in excess of 10 a day, are to be paid for the time spent changing fields, and are to receive at least three hours reporting pay if they come to work as scheduled and there is no work.

California tomato pickers employed by Florida-based Gargiulo voted 186-40 for the UFW on July 11, 2012.

LM-2. The UFW's annual LM-2 report (file 000-323) for 2011 listed receipts of $7.2 million and expenditures of $6.6 million (www.unionreports.gov). The UFW reported $3.7 million in dues and agency fees, and $660,000 in per capita taxes. UFW assets were $4.1 million and liabilities were $3.7 million. The UFW reported 3,193 active members and 1,000 retirees at the end of 2011. Dues are three percent of earnings. If $3.7 million in dues represents three percent of earnings, covered earnings were $123 million. If 6,000 workers paid dues sometime during 2011, the reported dues income would suggest they earned an average $20,500.

The nine UFW officers were paid almost $800,000 in salary and allowances in 2011, and there were 60+ staff, from lawyers to organizers. The Juan de la Cruz pension fund Form 5500 (www.dol.gov/ebsa/foia/foia-5500.html) reported 11,083 participants in 2009, including 2,492 active participants and 9,944 retired or inactive participants. There were 50 employers making contributions in 2009, when the JDLC pension plan had $96 million in assets.

The UFW's Robert F. Kennedy Farm Workers Medical Trust form 990 reported $15 million in revenue in 2010, the same as in 2009, and paid $15 million for health-care benefits. If employers paid an average $3 an hour in RFK contributions in 2010, there were 3.3 million hours worked under contracts with RFK coverage. If employer contributions averaged $2.50 an hour, there were about four million hours worked, representing 2,000 workers employed 2,000 hours each or 4,000 workers employed 1,000 hours each.

Between September 1, 2009 and August 31, 2010, the RFK plan received $14.4 million in contributions from employers. It paid $17.2 million in health care benefits during this program year.

The RFK plan provides health care services with $5 co-pays but limits annual benefits to $70,000 a year, less than a tenth of the $750,000 minimum benefit required by the Affordable Care Act. The UFW received a waiver from HHS to keep its maximum benefit at a low level in order to hold down premiums. The UFW in 2011 eliminated the lifetime cap on health-care benefits.

Arizona State University Professor Matt Garcia's book argues that the decision to move UFW headquarters to Keene in the Tehachapi Mountains in 1971 was "single most destructive" decision that led to the shrinking of the UFW. Once away from most of the farm workers in the San Joaquin Valley, Garcia says that Chavez fired many of the professionals who helped to make the UFW effective and persuaded remaining union leaders to experiment with the cult-like methods of Synanon, including self and group criticism at the UFW's isolated compound.

The UFW marked its 50th anniversary on September 30, 2012. Founded as the National Farm Workers Association in 1962, the UFW joined a 1965 strike by Filipino grape harvesters in 1965 and won a contract with Schenley industries in 1966 that raised wages by 40 percent. The UFW went on to win contracts with most growers of table grapes, but competed with the Teamsters to represent lettuce workers.

The UFW was the major supporter of the Agricultural Labor Relations Act in 1975, which granted farm workers organizing and bargaining rights.

President Obama on October 8, 2012 dedicated the three-acre Cesar E. Chavez National Monument at the UFW's 187-acre headquarters in Nuestra Senora Reina de la Paz or Keene, California. Obama said: "La Paz was at the center of some of the most significant civil rights moments in our nation's history, and by designating it a national monument, Chavez' legacy will be preserved and shared to inspire generations to come." Some 7,000 people planned to attend the ceremony, and about 4,000 arrived, including a third who traveled in 32 buses provided by the UFW. The National Park Service provided additional buses to bring school children to the ceremony.

ALRB. A strike election at George Amaral Ranches in Chular June 20, 2012 resulted in a 265-65 vote for the UFW; there were 422 names on the voter eligibility list. Amaral, a grower and custom packer of broccoli, lettuce, cauliflower, sweet corn and green cabbage, asked the Board to overturn the election because, Amaral argued, the majority of its workers were not on strike as is required to hold an election within 48 hours of a union request. The ALRB noted that Amaral was the first strike-induced election held by the ALRB since 1995.

The UFW lost an election at berry grower Corralitos Farms LLC September 19, 2012 on a 187-154 vote. The UFW charged that Corralitos offered benefits in exchange for a no union vote, a violation of the ALRA that could result in the ALRB certifying the UFW as bargaining representative despite not receiving a majority vote if it finds that Corralitos violations would prevent another free and fair election.

The UFW and Manteca-based Ace Tomato were unable to agree on a contract, prompting the ALRB in March 2012 to order mandatory mediation. The mediator used the wage rates negotiated between the UFW and Pacific Triple E Produce in June 2012 that raised piece rates in San Joaquin county to $1.12 for two 30-pound buckets or $0.56 a bucket ($0.61 a bucket for Roma tomatoes) to set the wages for Ace.

Ace objected, asserting that Triple E was a larger firm with operations in Florida and Mexico and could pay higher wages. During negotiations with the UFW, Ace offered to pay $0.54 a bucket for its August through October season, up eight percent from the current $0.50 a bucket. However, the mediator ruled and the ALRB agreed that when Triple E is producing in San Joaquin county, it is hiring from the same labor pool as Triple E.

Ace, which is seeking court review of the ALRB's decision to impose the mediator's contract, says that its tomato pickers are employees of labor contractors. Immokalee-based Lipman, the largest US producer of field-grown tomatoes, announced plans to acquire Ace in July 2012. Lipman is also developing the Vintage Ripe tomato variety to improve the taste of field-grown tomatoes.

The UFW won an election at San Joaquin Tomato Growers May 3, 1993. SJTG refused to negotiate with the UFW while it appealed the decision to certify the certification of the UFW as bargaining agent for its workers, and was found to have violated its duty to bargain in good faith between July 12, 1993 and September 8, 1994. The Board ordered SJTG to make its employees whole for any wages and benefits they lost during this period of bad-faith bargaining.

The General Counsel issued a make-whole order in April 2011 based on the average wage increases in UFW contracts in effect between 1992 and 1994, 4.3 percent. The General Counsel also added 10 to 18 percent for fringe benefits that SJTG employees did not receive. SJTG maintained that it paid "the highest wages" for picking mature-green tomatoes, so that no make whole wages were due. The ALRB rejected SJTG's argument in San Joaquin Tomato Growers (38 ALRB No. 4) and revised the make whole calculation.

The UFW asked the Board November 17, 2011 to order mandatory mediation to reach a contract with SJTG. After disputes about whether there had ever been a contract between the UFW and SJTG (the Board decided there had not been), the mediator tried to help the parties reach agreement. When the mediator's effort failed, the mediator issued a report that included a recommended contract whose wage increases tracked those of Pacific Triple E, and the Board upheld this contract for the UFW and SJTG in 38 ALRB No. 9 in October 2012.

Unions. About eight percent of US workers are union members, down from 12 percent in the 1980s. Over a third of public sector workers, but only seven percent of private sector workers, are union members. Private-sector union membership peaked in the mid-1950s at 35 percent.

There are many critiques of US unions and what they must do to add members and bargaining clout. Many analyses note that AFL unions, which organized workers by craft or skill and controlled apprenticeship programs and entry into occupations such as carpenter, were upended by corporations in the 1920s that hired unskilled workers directly rather than hiring skilled workers through union hiring halls. CIO unions such as the steel and auto workers that organized all workers in a particular factory or industry expanded faster, and the competing federations of national unions were merged into the AFL-CIO in 1954.

Between the 1950s and the 1970s, big unions bargained with big corporations. However, globalization, deregulation, and changing attitudes strained this big corporation and big union alliance. There are many suggestions for unions seeking to grow, including that unions switch from collective bargaining with employers to lobbying politicians for favorable labor laws and regulations.

Caterpillar, which earned a record $5 billion profit in 2011, asked 780 US workers in Joliet, Illinois to accept a six-year wage and pension freeze. The workers, represented by the International Association of Machinists, went on strike for 15 weeks before agreeing to most of Caterpillar's demands. Over 100 workers crossed the picket lines and went back to work. Another 1,200 were not represented by the IAM, enabling some production to continue despite the strike. The returning workers will get a $3,100 bonus for returning to work.

Caterpillar argued that the $26 an hour earned by striking workers was too much in a globalizing economy. Caterpillar said that senior workers were overpaid by a third, while the IAM pointed to Caterpillar's profits and said the company should share them with its employees. Both Caterpillar and the IAM have taken hard lines in bargaining. Caterpillar closed a locomotive plant in London, Ontario in 2011 after workers refused concessions. The IAM filed a complaint against Boeing when it opened a second 787-assembly line in South Carolina.

There were 19 strikes involving 1,000 or more workers in 2011, down from an average 35 a year in the 1990s.

Employers sometime recheck the documentation of workers after they try to organize a union. After three-fourths of the 200 production workers at Palermo's Pizza in Milwaukee in May 2012 sought to unionize, Palermo's asked half of its workers to re-verify their legal status, prompting a strike that lasted through June and July 2012.

Palermo said it acted in response to an I-9 audit, prompting ICE in June 2012 to announce that it was suspending its I-9 audit at Palermo's, a step welcomed by union leaders. Palermo's was founded by Italian immigrants and today employs mostly Mexican immigrants. Palermo's refused to recognize the United Steelworkers as the representative of its workers voluntarily, and the NLRB set an election for July 6, 2012 that was delayed several times.

Tyrone Freeman, the head of Service Employees International Union Local 6434 that represents 160,000 home health care aides in the Los Angeles area, was indicted in July 2012 on 15 counts of stealing SEIU funds. Freeman was accused of diverting funds from Local 6434, known as the United Long Term Care Workers Local, to affiliated organizations controlled by himself or his wife. A separate state suit filed by the SEIU against Freeman and his wife seeks the return of some of these funds.

Proposition 32 would prohibit both unions and corporations from making contributions to political campaigns, and bar unions from using automatic payroll deductions to raise money for political campaigns. Unions argue that Proposition 32 would severely reduce their ability to influence politics. They have raised over $37 million to defeat Proposition 32, with most of the money coming from the California Teachers Association. Proponents raised about $7 million.

NLRB. Republicans are seeking to amend the National Labor Relations Act to overturn some of the decisions of what they call an activist NLRB. Bills pending in the House would not allow an employer to recognize a union unless there was an NLRB-supervised secret ballot election, and allow employers to pay more than the wages negotiated in collective bargaining agreements to reward individuals for outstanding performance. Democrats counter that allowing employers to decide which workers receive more than specified in the collective bargaining agreement would undermine a union's role as the exclusive bargaining representative of workers.

DOL. DOL proposed and withdrew a bill that would have restricted work done by children on farms by making on-farm work standards the same as those governing nonfarm work. DOL's proposal led to an uproar in Congress. In July 2012, the House approved the Preserving America's Family Farms Act to prevent DOL from completing or enforcing the rule proposed in 2011.

The Oregonian on September 29, 2012 reported that the White House instructed DOL to withdraw the regulation limiting child labor on farms, but refused to release emails that explained the decision (www.oregonlive.com/pacific-northwest-news/index.ssf/2012/09/obama_officials_redact_interna.html#incart_river_default)

The Government Accountability Office reported that DOL spent $18 billion on 47 worker training and job-search programs in FY08. DOL provides funds to public and private organizations that enroll about seven million workers a year. The Workforce Investment Act of 1998 provides funds for both training and job-search assistance. Only about half of those who received job-search assistance found jobs within three months, compared to three-fourths of those who received training.

The National Apprenticeship Act celebrated its 75th anniversary on August 1, 2012. The NAA supported 450,000 people in registered apprenticeships or career-training programs in 2010, and DOL wants to expand registered apprenticeships from the construction trades, which have 60 percent of the 450,000, to health care and advanced manufacturing.

At an October 2012 conference, DOL reported that a key to effective training was issuing graduates industry-recognized credentials. DOL praised the Registered Apprenticeship Program as a model for enabling workers to earn while they learn and to receive industry-recognized credentials at the end of their training. There are some reverse transfers of young people who completed four-year degrees returning to community colleges to acquire job-relevant skills.

DOL released three annual reports on child and forced labor in September 2012. There are an estimated 215 million children working around the world, including half in dangerous jobs; children are about six million of the estimated 21 million forced laborers.

The 800-page 2011 Findings on the Worst Forms of Child Labor report includes an assessment tracking each country's progress from year to year. DOL also published a List of Goods Produced by Child or Forced Labor and a list of products and goods that federal contractors must certify under Executive Order 13,126 are not produced by forced or indentured child labor.

Garcia, Matt. 2012. From the Jaws of Victory: The Triumph and Tragedy of Cesar Chavez and the Farm Worker Movement. University of California Press. www.ucpress.edu/book.php?isbn=9780520259300