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July 2012, Volume 18, Number 3

UFW at 50, ALRB, Unions

The UFW held its 50th anniversary convention in Bakersfield on May 18-19, 2012. The UFW supports making March 31 a national holiday honoring Cesar Chavez, who was born in 1927 in Yuma, Arizona and moved to California in 1938.

Mexican actor Diego Luna is directing a film called "Chavez" that stars Michael Pena as Chavez and portrays the conflict between the UFW and California grape growers in the 1960s. The $10 million movie is being made in Hermosillo, Mexico, near the Sonoran table grape vineyards that drape grape vines on wooden crosses, as was done in California in the 1960s.

Singer Kris Kristofferson played six concerts in California between June 15-22, 2012 and donated the proceeds to the UFW. UFW headquarters are in Keene in the Tehachapi Mountains near Bakersfield.

Cesar Chavez was awarded the Presidential Medal of Freedom after his death in 1994, and UFW co-founder Dolores Huerta received the Presidential Medal of Freedom in 2012. Huerta says that the UFW is well positioned for a comeback in the fields and at the bargaining table.

President Arturo Rodriguez says the UFW "continues to grow stronger every single day," pointing to UFW-influenced food-safety audits required by Costco and a 2002 march from Merced to Sacramento that resulted in then-Governor Gray Davis signing a mandatory mediation amendment to the ALRA. Rodriguez says workers need more help to raise wages and improve conditions, and points to heat-stress farm worker deaths as an unresolved issue.

Growers disagree. Steve Maniaci of the Kern County Farm Bureau says that "farm workers are making better money and have more benefits now than they ever have? The pay is very fair. Growers here are regulated so heavily that the union isn't really necessary anymore."

Many reporters, reviewing the status of farm labor in California, credited the UFW with field sanitation laws and California's union organizing law, the 1975 ALRA. The Bakersfield Californian noted that the UFW remains a political power in Sacramento and Washington DC despite fewer than 4,300 active members at the end of 2011. Governor Jerry Brown vetoed SB 104, a bill that would have allowed farm worker unions to be recognized without secret-ballot elections in 2011.

Some stories profiled past UFW staff. Art Torres worked for the UFW in 1972-73, served in the California Legislature for 20 years, and was chairman of the California Democratic Party from 1996 to 2009. Fred Ross Jr., now director of organizing for the International Brotherhood of Electrical Workers, Local 1245, was an organizer for the UFW between 1970 and 1976. Marchos Camacho and Dianna Lyons earned their attorney's licenses by being apprentices in the UFW legal department. Camacho now has a law firm in Bakersfield, and Lyons works for Kazan, McClain, Lyons, Greenwood & Harley in Oakland.

Some stories emphasized that UFW affiliates operate major housing and service ventures that have spawned infighting, as with the suit between Paul Chavez, CEO of the National Farm Workers Service Center, and his fired brother Anthony Chavez, who was vice-president of the NFWSC.

The UFW signed a three-year agreement with Tracy-based Pacific Triple E Produce in June 2012 covering 800 workers who pick mature-green tomatoes. The UFW said that the contract increases wages by at least 12 percent, includes a pension plan, and establishes grievance and seniority systems. The most common piece rate for picking mature-green tomatoes in San Joaquin county has been $0.475 per five-gallon or 25-pound bucket; a 12 percent increase in the piece rate would raise it to $0.532 per bucket.

Pacific Triple E, which hires harvest workers via contractors, said that the UFW-Pacific contract requires the FLCs that supply workers to Pacific to abide by the terms of the contract.

ALRB. In San Joaquin Tomato Growers (38 ALRB No. 4), the ALRB approved the averaging of wage increases in contracts in effect during the make-whole period to determine what might have been negotiated if San Joaquin had bargained in good faith with the UFW after the ALRB certified the UFW as the representative of San Joaquin tomato pickers in 1993-94. The ALRB reversed the Administrative Law Judge, who found a 1995 UFW-Meyer Tomato contract to be "comparable."

The UFW won an election at SJTG August 11, 1993, and was certified as the bargaining representative for SJTG employees May 3, 1993. SJTG refused to bargain with the UFW. The Board found that SJTG violated its duty to bargain in good faith between July 12, 1993 and September 8, 1994 and ordered make whole. SJTG maintained that it did not owe any make whole because its $0.475 per bucket piece rate was the highest wage paid "anywhere in the world."

SJTG did not provide wage and other records requested by the General Counsel, but the UFW in 2009 found some SJTG payroll records, and 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, that is, 4.3 percent. The General Counsel also added 10 to 18 percent for fringe benefits that SJTG employees did not receive.

The ALJ rejected the General Counsel's contract averaging methodology because none of the contracts whose wages and benefits were averaged to calculate make whole involved picking fresh tomatoes. At the urging of SJTG, the ALJ found that a 1995 Meyer Tomato-Visalia contract was comparable and recommended a make whole wage increase of 2.5 percent between July 1993 and July 1994, a 5.4 percent increase between July 1994 and September 1994, and no fringe benefits.

The ALRB rejected the argument that paying "the highest wage" meant no make whole was due, since a union could have bargained for even more. It modified the contract averaging methodology, ordering the General Counsel to increase wages by 2.5 percent in 1993 and 2.2 percent in 1994. The ALRB ordered workers to be given $0.86 an hour for the medical benefits they may have received with good-faith bargaining, and $0.09 an hour for pension benefits. Workers employed at least five days in the two weeks preceding the July 4 or Labor Day holidays are to be given the equivalent of eight hours pay.

Both the General Counsel and the UFW asked the Board to reconsider its SJTG decision.

D'Arrigo. An Administrative Law Judge found that D'Arrigo Brothers of California solicited signatures for a union decertification vote during work hours, a violation of the ALRB, and otherwise interfered with a free and fair election. Some 1,665 employees were eligible to vote in the November 2010 election, but the votes were not counted because the UFW charged that D'Arrigo unlawfully interfered with the vote. The ALJ set aside the decertification election and gave the parties until July 9, 2012 to appeal his decision.

John D'Arrigo made a speech to employees two days before the vote in which he reminded employees that, before the UFW contract, D'Arrigo had a seniority system, medical benefits and fair wages. He said: "Over the past three years, the union has collected $1.2 million from your pockets for union dues. That's a lot of money. Remember, no union also means no more dues? I do not believe that we need the UFW at D'Arrigo Bros. I am asking you to trust my father and me, and vote 'no union.'"

Dutra. The ALRB's General Counsel in April 2012 won a court order requiring Dutra Farms (Premier Raspberries) to reinstate a worker fired for union organizing activities. Pajaro Valley raspberry grower Dutra initially refused to reinstate the fired worker, who had been employed eight years, and appealed the ALRB's first request for injunctive relief in three decades. However, the state's Sixth District Court of Appeal rejected Dutra's appeal.

Dutra was fined $1,500 for contempt for not immediately reinstating the fired worker and for denying ALRB staff access to Dutra employees. There will be a hearing in September 2012 to determine if Dutra's firing of the woman was lawful.

SB 126, which went into effect January 1, 2012, lowers the legal threshold for obtaining preliminary injunctive relief from California courts to reinstate fired employees if the employer is charged with unfair labor practices. Courts may consider the indirect or chilling effect of the unfair labor practice on employees' organizing rights. The ALRB first used the reinstatement provision of SB 126 in the Dutra case.

SB 126 also shortened the timeline for mandatory mediation after an initial request to bargain from 180 days to 90 days and added two new circumstances in which mediation may be requested: (1) 60 days after the ALRB has issued a certification due to employer misconduct; and (2) 60 days after the ALRB has dismissed a decertification petition due to unlawful employer involvement.

Ventura-based Montalvo Farms LLC was ordered by the ALRB in May 2012 to rehire a farm worker who was fired after complaining about working conditions on behalf of other employees.

The ALRB conducted its first 48-hour strike election since 1995 at George Amaral Ranches June 19-20, 2012. The UFW won a majority of the votes cast, but George Amaral filed objections to the election. Under SB 126, the Board has 21 days to issue a decision on the employer's objections.

Union Fees. The US Supreme Court in June 2012 ruled that Local 1000 of the Service Employees International Union could not increase fees on the workers it represented by 25 percent to raise money to defeat initiatives in 2005 that would have reduced union political strength and allowed the governor to cut employee compensation. The ballot initiatives were defeated, but a class-action suit was filed on behalf of 28,000 California state employees who were not members of the SEIU and not given the opportunity to opt-out of the increased fee, as required in the 1986 Teachers v. Hudson. So-called "Hudson notices" permit employees to request a refund of fees spent on political or other non-bargaining union work.

The June 2012 US Supreme Court decision suggested that unions must obtain nonmember approval before levying special assessments, and raised doubts about collecting union fees and requiring workers to request refunds. The majority opinion suggested that unions should ask workers to opt-in rather than collecting non-bargaining fees and then allowing requests for refunds.

There may be more restrictions on unions collecting fees from workers. Personal care providers in Illinois who provide in-home services to Medicaid recipients challenged a collective bargaining agreement that requires them to pay fees to a Service Employees International Union affiliate. In 2003, a majority of the 20,000 home-care providers voted for SEIU representation, and the resulting contract required non-SEIU members to pay "fair share" fees to cover the cost of collective bargaining. A federal district and appeals court rejected the care providers' suit, finding that they were state employees for collective bargaining purposes, but the US Supreme Court may consider the providers' appeal.

Unions representing in-home care workers have been plagued with financial mismanagement issues. Tyrone Freeman, head of the 180,000 member SEIU Local 6434 United Long Term Care Workers in Los Angeles, was ousted in 2008 after it was revealed that he used member dues to finance his lifestyle. His wife settled charges resulting from payments received from Local 6434 to make videos promoting it in June 2012.

NLRB. On December 30, 2011, the National Labor Relations Board ruled 2-1 in Flaum Appetizing Corp that an employer contesting back pay for unlawfully fired employees must have a factual basis for asserting that the employees are ineligible for employment under federal immigration law. The NLRB majority decided that Flaum had to pay 11 fired employees back pay because Flaum failed to provide evidence that the workers were unauthorized (Flaum fired 17 workers after they engaged in a concerted protest at work).

The US Supreme Court's 2002 Hoffman Plastics decision held that the Immigration Reform and Control Act bars the NLRB from awarding back pay to unauthorized workers. However, the NLRB said that IRCA allows the Board to block employers who are contesting back pay from making "baseless inquiries" into every worker's immigration status to avoid back pay.

Flaum simply asserted that the fired workers provided fraudulent documents to get hired and did not include copies of the documents or the dates they were used to get hired. The NLRB majority concluded that employers may not issue subpoenas to each ex-employee awarded backpay and ask them to prove they are legally authorized to work in the US.

Under Flaum, the NLRB's General Counsel is required to examine employer evidence that an employee is unauthorized. If the employer does not provide specific evidence, General Counsel attorneys were instructed in May 2012 to bar the employer evidence. If a fired worker is ordered reinstated, under Flaum an employer may not require the worker to complete another I-9 form as a condition of reinstatement.

The NLRB conducted 1,261 elections in 2011, down from 1,655 in 2010. Unions won 66 percent of the elections conducted in 2011, down from 67 percent in 2010. The number of workers represented after union election wins was 57,600 in 2011, down from 69,800 in 2010 (some unions are able to win the right to represent workers without elections via card-check recognition agreements). Unions prevailed in about half of the decertification elections held, meaning they continued to represent workers.

The National Labor Relations Board in August 2011 ordered employers to post notices by April 30, 2012 that inform workers of their rights, including the right to join or organize a union to improve wages and working conditions. Some employers challenged the NLRB, but a Washington DC federal court ruled in March 2012 that the NLRB had the right to require employers to post notices. However, a South Carolina judge in April 2012 ruled that "Congress did not intend to impose a universal notice-posting requirement on employers, nor did it authorize the board to do so." The judge emphasized that, unlike nine other labor laws, the NLRA does not explicitly include a posting requirement.

Unions. Private sector unions have declining membership because of increased business competition, job losses in historically organized industries, and the opposition of many employers to unions. Rising trade and globalization have made it harder for unionized companies with higher wages and benefits to compete, and union work rules sometimes slow the ability of employers to react quickly to changing circumstances.

In 1977, about 25 percent of US workers were employed under union contracts, compared to 13 percent in 2011. About 40 percent of government workers and eight percent of private sector workers are represented by unions. During the 1950s, about 40 percent of private-sector workers were unionized and almost no public sector workers belonged to unions.

The shift of jobs from production to services has made it harder to organize workers into unions because the line between managers and workers is often blurred in services. Unions say that they can organize public-sector workers who provide services because public employers do not aggressively try to forestall unionization.

Unions struggling to organize workers have proposed legislative remedies that center on card check, allowing union organizers to accumulate signed authorization cards over time instead of holding an election. The Employee Free Choice Act would give unions this option and increase penalties on employers who violate worker rights during organizing campaigns.

Kahlenberg and Marvit urge amending Title VII of the 1964 Civil Rights Act to make union activity a fundamental civil right and allow private suits seeking compensatory and punitive damages against employers who violate worker rights. Employers oppose such a change as "radical," and most unions favor relaying on the National Labor Relations Board as a specialist agency to resolve labor-related complaints, although many unions want to give the NLRB explicit authority "to restore the economic status quo after employer violations."

Wisconsin governor Scott Walker, targeted by public sector unions after signing Wisconsin Act 10 that eliminated the collective bargaining rights of many public sector workers and required them to pay more for health insurance, survived a recall vote in June 2012. The union most affected is the American Federation of State, County and Municipal Employees, which has 1.4 million members but is losing members as state and local governments lay off employees due to budget cuts. In Wisconsin, the number of dues-paying AFSCME members dropped from 62,000 to 29,000 after the new state law allowed workers to opt out of paying union dues.

Indiana enacted a right-to-work law in February 2012. Some observers expect that Walker's win in Wisconsin will lead to more right-to-work laws in the industrial Midwest.

Courtenay Edelhart, "UFW at 50: A legacy of accomplishments, struggles," Bakersfield Californian, May 13, 2012. Kahlenberg, Richard and Moshe Marvit. 2012. Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice. Century Foundation. http://tcf.org/commentary/2012/why-labor-organizing-should-be-a-civil-right


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