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April 1996, Volume 2, Number 2

ALRB: Boycotts and Definitions

The California Supreme Court on April 11 upheld an earlier court
of appeal decision which held that the California Table Grape
Commission could not sue the UFW for boycotting grapes, and that the
ALRB could not order the UFW to pay damages to a board established by
grower contributions to promote grapes (Rural MN, January 1996).

The Table Grape Commission complained in 1991 that the UFW was
unlawfully boycotting table grapes in southern California, even
though it was not certified to represent grape harvesters. The ALRB
agreed with the Commission, but the courts ruled that the Commission
had no standing to sue the UFW.

The ALRB has a $3 million annual budget and 70 employees to
supervise elections in which farm workers decide whether they want to
be represented by a union, and to deal with complaints that the ALRA
has been violated. The ALRB is earning praise in most reports for
being a mature and fair arbiter of farm labor disputes.

The ALRB makes the holding of elections its top priority, and
notes that there is frequently a rash of unfair labor practice
charges filed before elections. There were 230 ULP charges filed in
1994-95, down from 429 in 1993-94. Most ULP charges are
dismissed--there are typically fewer than 20 administrative hearings
per year on the ULP charges filed.

On April 10, the Assembly Labor Committee voted 3-2 to approve AB
2717, a bill that would allow farmers to petition the ALRB to
decertify a union if six conditions are satisfied, including that no
agreement has been negotiated, there have been no significant
employer-union contacts for the previous 12 months, and that the
employer believes the union no longer has majority support from
employees.

Farmers say that the law is necessary to deal with unions that win
elections, and then "abandon" workers. Unions counter that they would
not expend resources if they did not intend to negotiate contracts,
and that many of the delays result from employer activities.

On August 16, 1993, the NLRB ruled in Produce Magic that
cutter-packers, carton closers and loaders, and water persons
involved in the lettuce harvest were not "agricultural laborers"
because they did not perform actual cutting work. In September 1995,
the NLRB denied the ALRB's request that it reconsider its 1993
ruling.

The US Supreme Court may resolve the issue; it heard arguments on
the definition of "agricultural labor" in Holly Farms Corp v. NLRB
February 21, 1996. The US Court of Appeals for the Fourth Circuit
held that about 100 "chicken catchers, forklift drivers, and
live-haul drivers" were NOT "agricultural laborers," and thus could
be included in a Teamsters Union bargaining unit. The company argues
that the workers involved are farm workers, and thus should be
excluded from the Teamsters unit.

The workers in dispute were employed by Holly Farms-- a poultry
processor bought by Tyson Foods in July 1989-- to catch chickens and
perform other tasks on the farms of growers who raise chickens for
Holly Farms. Tyson has poultry processing facilities in 12 states,
Canada, and Mexico. Its 44,000 employees largely are non-union.

Section 2(3) of the NLRA excludes "agricultural laborers" from its
definition of employee. The definition of "agricultural laborer" is
taken from Section 3 (f) of the Fair Labor Standards Act, which says
that agriculture is "farming in all its branches" and to include "the
raising of . . . poultry, and any practices. . . performed by a
farmer or on a farm as an incident to or in conjunction with such
farming operations, including preparation for market, delivery to
storage or to market or to carriers for transportation to market."

Holly/Tyson argued that chicken catchers and forklift drivers
perform their work "exclusively 'on a farm' in conjunction with the
farming activities on that farm," and thus should be considered farm
workers, and be excluded from the Teamsters bargaining unit. The US
government argued that "the fact that an employee works on a farm
does not necessarily make the employee an 'agricultural
laborer,'"--the employee must also do work performed "as an incident
to or in conjunction with farming operations" to be a farm worker.

The Colorado Department of Labor ruled in February 1996 that
mushroom workers were farm workers, and thus not entitled to coverage
under labor laws that exclude farm workers, because they were engaged
in the production of crops, albeit under cover. About 100 mostly
Mexican and Guatemalan immigrant pickers who average $7.71 an hour
for 40 hour weeks wanted to form a union at the Rakhra Mushroom Farm.

The US Forest Service issued 5,742 permits in 1995, and collected
$353,000 in fees, to persons who wanted to pick wild mushrooms on
forest service land in the Pacific Northwest. Most of the mushroom
pickers are Asians who follow the mushroom harvest from British
Columbia to Northern California.



Stuart Silverstein, "Court refuses to ban UFW protests," Los
Angeles Times, April 12, 1996. "Grape board can't sue UFW,"
Sacramento Bee, April 11, 1996. Greg Bolt, " Harvesting the fungi
crop," Bulletin, April 7, 1996. Deborah Frazier, " Mushroom facility
is roofed farm, state says," Rocky Mountain News, February 17, 1996.


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