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January 2010, Volume 16, Number 1


UFW. The UFW raised the dues charged to workers from two to three percent in several of its contracts on July 1, 2009.

ALRB. The Agricultural Labor Relations Board has a two-person Board after the resignation of chair Guadalupe Almaraz on December 17, 2009.

The ALRB issued nine decisions in 2009, up from six in 2008. Two were issued in October 2009 and two in December 2009.

In Gallo Vineyards, Inc. 35 ALRB 6 (2009), the ALRB overturned a 95-125 vote on June 25, 2007 to decertify the UFW because over 80 of the worker addresses provided to the UFW before the election were wrong, making home visits by union representatives difficult. When dissatisfied employees requested a de-certification election, Gallo of Sonoma had 65 direct hires and 217 contractor employees for its 3,200 acres of vineyards.

The ALRB uses an outcome-determinative test to assess whether objections to elections should be upheld. The UFW asked the ALRB not to certify the apparent majority vote for decertification, and the ALRB agreed with the UFW that Gallo's provision of so many wrong worker addresses could have affected the outcome of the election. The UFW thus remains the certified representative of Gallo workers.

An earlier March 13, 2003 de-certification vote was overturned by the ALRB because Gallo allowed its contractors to aid the dissatisfied workers seeking to oust the UFW. In Gallo Vineyards, 30 ALRB 2 (2004), the ALRB found that two Gallo supervisors (foremen of the labor contractors used by Gallo) encouraged and watched the circulation of a decertification petition among their crews. The ALRB concluded that such employer encouragement of dissatisfied workers' efforts to get rid of "the two percent for the UFW dues" was unlawful because of the "vulnerabilities of a heavily alien, non-English speaking workforce in an industry dominated by casual employment relationships."

The UFW has had a troubled relationship with Gallo of Sonoma. It won an election in 1994 to represent Gallo workers, but negotiated a first contract only in 2000. Before this contract expired on November 1, 2003, dissatisfied Gallo workers petitioned for a decertification election, which was held March 13, 2003. However, the ballots were not counted because the ALRB agreed with the UFW that Gallo's labor contractors unlawfully interfered with the election by helping dissatisfied workers. The UFW, which has been certified to represent Gallo of Sonoma workers for 15 years between 1994 and 2009, had a contract with Gallo of Sonoma only between 2000 and 2003.

The worker who initiated the decertification effort plans to appeal the Board's decision, arguing that not certifying the decertification vote because of deficiencies in the employee list was a "draconian remedy."

In Lassen Dairy, Inc. 35 ALRB 7 (2009), the ALRB upheld an ALJ decision that Lassen committed an 1153(a) unfair labor practice by assigning Juan Tostado to a worse job in retaliation for his protected concerted activities. Juan Tostado was ordered reinstated with backpay but his brother Jose was not, since he was found to have quit his job.

The Tostado brothers began working for Lassen as milkers in November 2005. A year later, they and other milkers asked for a meeting with the newly hired foreman to discuss higher wages. After the meeting, the Tostado brothers were assigned to the hospital barn, working alone on different shifts instead of together on the same shift as milkers. Jose was lawfully fired for continuing to leave before completing the 10-hour workday, but Juan was unlawfully fired after an accident that caused him to miss a few days of work.

Many of the specific issues were in dispute, and the decision rested on the fact that Juan Tostado was considered to be the most credible witness.

In Mushrooms Farms (Spawn Mate), 35 ALRB 8 (2009), the Board dismissed worker Efrian Rodriguez's charge that his firing for complaining about overtime pay was a violation of 1153(a), which protects workers engaged in protected concerted activity from retaliation. Mushroom pickers receive 1.5 times their usual piece rate for mushrooms picked after nine hours a day, and Rodriguez complained that foreman were slow to arrive to mark mushrooms picked after nine hours as eligible for the higher piece rate.

Rodriguez "hid" four boxes of mushrooms picked during regular hours from the foreman, presumably to have them counted as picked during the overtime period, and was fired. The ALRB agreed that the major reason for the firing was hiding the boxes in an effort to receive the higher piece rate. The UFW represents employees of Mushrooms Farms.

In Hibino Farms, 35 ALRB 8 (2009), the issue was whether thin and hoe workers supplied by Oasis Agricultural Services were employees of Hibino Farms or Nunes Vegetables. The UFW was certified to represent 29 Hibino employees in 1978; on April 14, 2009, workers voted 9-6 to decertify the UFW.

The UFW objected, arguing that 39 thin and hoe workers brought to Hibino by Oasis should have been allowed to vote in the decertification election. The ALRB concluded that the 39 Oasis thin and hoe workers were properly excluded from the decertification election because their employer was Nunes Vegetables, which cared for and harvested crops on Hibino land. The Board dismissed the UFW's objections and decertified the UFW at Hibino.

NLRB-EFCA. The majority of NLRB Board members have been Republicans since 2001. The Board operated with just two members for almost two years. President Obama nominated three additional members, but they were not confirmed as of Fall 2009.

The top legislative priority of US unions is the Employee Free Choice Act, which would amend the National Labor Relations Act to allow workers to obtain union representation through an NLRB check of authorization cards signed by a majority of employees. Currently, an employer can voluntarily recognize a union as the representative of its workers or a union can request that the NLRB supervise a secret-ballot election if at least 30 percent of workers sign cards indicating they want to be represented by the union.

Under the EFCA, the NLRB could certify the union as bargaining representative without an election if the union obtained the signatures of a majority of workers in the bargaining unit.

The EFCA would also increase penalties on employers who commit unfair labor practices during organizing drives and allow employers or unions to request mediation and arbitration to obtain a first contract. After 90 days of bargaining, either party may request mediation and, after another 30 days, arbitration. According to the AFL-CIO, between 37 percent to 44 percent of newly certified bargaining units never reach a collective bargaining agreement.

In Canada, where first-contract arbitration is available in eight provinces, it is used in less than three percent of cases. Studies suggest that, with the threat of arbitration, parties have stronger incentives to reach agreement on their own.

The NLRB reported that in FY09 its regional offices conducted 95 percent of representation elections within 56 days of the filing of a representation petition. NLRB offices found that 36 percent of the unfair labor practice charges had merit and led to the issuance of a complaint, but 95 percent of these meritorious cases were resolved.

Unions. Some 12.4 percent of US workers are union members, down from 20 percent in 1983? 8.4 percent of private sector workers and 40.7 percent of public sector workers, are union members.

Almost half of all union members, and over 60 percent of female union members, are in the public sector. Almost half of female union members have college degrees, compared to a quarter of male union members. The typical union member is 45 years old, compared with 41 for the average American worker.

Whites are 70 percent of union members, followed by 13 percent Blacks; 12 percent Hispanics; and five percent Asians. About 13 percent of immigrant workers are union members, compared to 16 percent of all employees.

In 1983, about 52 percent of union members were white men, and 30 percent of union members were employed in manufacturing. By 2008, white men were 38 percent of union members, and only 11 percent of union members were employed in manufacturing. The share of manufacturing workers in unions fell from 30 percent in 1983 to 12 percent in 2008.

The Service Employees International Union affiliate United Healthcare Workers -West and the breakaway National Union of Healthcare Workers are battling to represent California health care workers? the NUHW broke away from the SEIU in January 2009. The NLRB in December 2009 ruled that there can be elections in January 2010 over whether Kaiser nurses and health care workers in Southern California want to be represented by the UHWW or the NUHW.

Workers United/SEIU sued uniform and laundry-service contractor Cintas in 2004, charging that Cintas did not pay 500 Los Angeles-area workers the living wage required in Los Angeles. In December 2009, Cintas agreed to pay $6 million to settle the suit, including $3.3 million in back wages and interest, believed to be the largest settlement for living wage violations. Cintas launders mostly private-sector uniforms, but was covered by the living wage law because it had a contract with the Los Angeles Department of Water and Power. In 2008, Cintas paid $1.4 million for violating Hayward's living wage ordinance.

The New York Times on November 19, 2009 reported that Unite Here used pink sheeting on organizers, getting them to disclose personal information and obtaining similar information from workers they were trying to organize. Unite Here is particularly strong in Chicago, Las Vegas, Los Angeles and New York, and seeks to organize workers in hotels and restaurants. The UFW used a form of pink sheeting when it required staff members to undergo "intense, prolonged verbal abuse in an effort to break them down and assure loyalty."

Injuries. The Government Accountability Office issued a report in November 2009 concluding that workplace injuries are underreported by both employers seeking to reduce their workers' compensation costs and workers fearing discipline or reduced chances for safety-based rewards. There were four million workplace injuries in 2007, including 5,600 deaths.

The rate of workplace injuries has been declining, a trend generally attributed to improvements in workplace safety and fewer manufacturing jobs. However, since OSHA relies on "employer-reported injury and illness data," underreporting injuries could provide a misleading picture of trends. OSHA rules require employers with 10 or more workers to report all work-related injuries or illnesses that result in lost work time or medical treatment beyond first aid.

The GAO report noted two reasons why workers failed to report work-related injuries. Many employers require employees to undergo drug testing after work-related injuries or illnesses, and many employers offer cash and other prizes to teams and departments with few reportable injuries.

Schmitt, John and Kris Warner. 2009. The Changing Face of Labor, 1983-2008. November. CEPR.

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