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January 2013, Volume 19, Number 1

UFW, ALRB, Unions

The UFW is trying to use mandatory mediation to get contracts with farm employers where it was certified to represent workers but did not negotiate a first contract. Its targets included Fresno-based Gerawan Farming and Madera-based DP Enterprises.

After several elections in May 1990, the UFW was certified to represent several thousand Gerawan employees, but never negotiated a contract. Gerawan, founded in 1938, said in December 2012 that few of the workers who voted for the UFW in 1990 are still employees today. Demetrio Papagni of DP Enterprises said that he did not know that the UFW was certified to represent 150 workers on the 75-acre grape farm he bought in 2005.

Both Gerawan and DP Enterprises are in mandatory mediation with the UFW. If mediation fails to produce a contract, the mediator-arbitrator can recommend a contract that the ALRB can impose on the parties by considering the financial condition of the employer (if the employer says that he is unable to pay what the union requests), wages and benefits in contracts with similar farming operations, wages and benefits in similar (non-union) farms and the cost of living.

Mandatory mediation allows employers or unions to request mediation after 90 days if the employer committed an unfair labor practice or if the parties have not previously had a contract. SB 25 would make it easier to request mandatory mediation for a second contract and require the buyers of farms that had bargaining obligations to honor them, that is, the buyers of a farm where the union won an election may receive a demand from the union to negotiate.

The New York Times reported October 19, 2012 that the son of Larry Itliong, the Filipino-born leader of the AFL-CIO's Agricultural Workers Organizing Committee when it called a strike of table-grape pickers in September 1965, wants to raise the profile of Filipino leaders in the story of California's farm worker union struggles. The AWOC and Cesar Chavez's National Farm Workers Association were merged into the UFW in August 1966; Itliong resigned from the UFW in 1971 after a dispute with Chavez. Itliong migrated to the US at age 15 in 1929 and is buried in Delano. A documentary, The Delano Manongs: Forgotten Heroes of the UFW, is scheduled for release in 2013.

Valdes book, Organized Agriculture and the Labor Movement before the UFW: Puerto Rico, Hawaii, and California, aims to show union organizing in the three places evolved very differently. There are two chapters on farm worker unions in each place. Valdes concludes that the option of migrating to the mainland made union organizing difficult in Puerto Rico, but the International Longshoremen's and Warehousemen'sÿUnion was able to march inland from Hawaii's docks in 1946 to help farm workers win union recognition.

Valdes begins the union story in California with the National Farm Labor Union (NFLU) strike at the DiGiorgio Farming Corporation in 1948, where the NFLU failed to negotiate a contract with what was then one of the world's largest farms. Nonfarm unions were at the peak of their power in the 1950s, when the presence of Braceros in the fields contributed to farm worker unions being very weak.

ALRB. In San Joaquin Tomato Growers (38 ALRB No. 12), the ALRB returned a make-whole order to the General Counsel to revise the average medical benefit downward from $0.94 to $0.88 an hour and to recalculate the amount of interest owed by SJTG for failing to bargain with the UFW in 1993-94. The General Counsel concluded that San Joaquin Tomato Growers owed its employees $230,000, plus $294,000 in interest.

The ALRB has an Agricultural Employee Relief Fund that collects money that the Board has determined is owed to farm workers, but who cannot be located two years after the Board orders that compensation be paid to them. The AERF is used to pay workers who are owed money in cases where an employer does not pay, as when the employer goes bankrupt or out of business.

The UFW lost an election at berry grower Corralitos Farms LLC September 19, 2012 on a 187-154 vote; most of the workers involved were Oaxacans. 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 the union failing to receive a majority vote. Under SB 126, the ALRB can certify the UFW as bargaining representative for Corralitos workers if it concludes that Corralitos prevented a free and fair election and that its violations would prevent a free and fair election in the future.

Mandatory mediation led to a recommended contract between the UFW and Ace Tomato, which was bought by Immokalee-based Lipman in 2012, the largest US producer of field-grown tomatoes. The mediator used the wage rates from the June 2012 UFW and Pacific Triple E contract that raised piece rates in San Joaquin county to $1.12 for two 30-pound buckets or $0.56 a bucket to set the wages in the UFW-Ace contract.

Ace objected to the UFW-Pacific Triple E wage rate for the 2012 season, and the 5th District Court of Appeal in Fresno stayed its implementation until Ace's objections are considered by the court. 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 Ace, so that Ace should pay the same wages as Triple E even though Triple E also operates in Florida and Mexico.

The California Supreme Court in December 2012 ruled that unions may picket peacefully on private sidewalks near store entrances, even if mall or store owners do not allow signature gatherers and protesters at these sites. The 6-1 decision concluded that the state may give extra protections to "labor-related speech" in order to promote "collective bargaining to resolve labor disputes." The Supreme Court decision was divided on exactly what rules property owners can set for union picketers, with some justices suggesting that the number of pickets and their noise levels could be restricted.

Unions. The median first-year wage increase in collective bargaining agreements (re)negotiated in 2012 was two percent, up from one percent in the first 11 months of 2011. The median wage increase was 1.5 percent in manufacturing, and one percent in state and local government.

California voters on November 6, 2012 rejected Proposition 32 by a 56-44 margin, an initiative that would have prohibited unions from using payroll-deducted funds for political purposes. Unions spent $75 million to defeat Prop 32; supporters spent $60 million.

Almost 18 percent of Michigan residents are union members, and Michigan voters rejected Proposal 2 in November 2012 elections by a 58-42 margin. Prop 2 would have enshrined union rights in the state constitution, including the right of public sector unions to bargain collectively, and would have prohibited enactment of "right to work" laws that prevent unions and employers from signing agreements that require covered workers to pay union dues. If approved, up to 170 state laws could have been overturned.

A referendum to repeal a 2011 emergency manager law was approved 52-48 percent. Many Michigan cities are losing population, prompting the appointment of emergency managers who have the power to void union contracts in order to balance city budgets.

In December 2012, Michigan enacted a law making it the 24th right-to-work state, meaning that workers represented by unions cannot be compelled to join a union and pay union dues and fees. Proponents of right-to-work laws say that they give workers a choice about whether to contribute. Opponents emphasize that unions must represent all workers in a bargaining unit, so that non-payers are subsidized by union members who pay dues.

Some unions in Michigan tried to re-negotiate contracts before the right-to-work law goes into effect about April 1, 2013, since contracts in effect before that date and that require represented workers to pay union dues or agency fees will remain valid until they expire. Dues tend to decline in right-to-work states, forcing union locals to consolidate, but the effects of right-to-work laws on employment growth is uncertain.

The US Supreme Court's 2012 Knox v. Service Employees International Union Local 1000 decision held that the SEIU's notice to non-members who must pay an agency fee about a special assessment was inadequate. However, the 7-2 majority went further and questioned whether unions can require non-members to pay special assessments and then seek refunds by later objecting. The majority suggested that unions should require non-members to opt-in to paying special assessments rather than first pay them and then seek a refund.

Bankrupt Hostess Brands began to close its baking operations in November 2012 after a strike by many of its 18,500 workers at 33 bakeries across the US. The maker of Twinkies and Wonder Bread said that its labor costs were too high to compete; unions countered that several private-equity buyouts and management mistakes led to unsustainable debts.

Employers sometime recheck the documentation of workers after they try to organize a union. Three-fourths of the 200 production workers at Palermo's Villa pizza in Milwaukee in May 2012 sought to unionize just as DHS's Immigration and Customs Enforcement agency was auditing Palemo's I-9 forms. ICE gave Palermo a list of suspect employees, and 75 who failed to clear up discrepancies were fired.

The Palermo Workers Union called a strike and urged a boycott of Palermo's frozen pizza, which is sold under the Kirkland brand at Costco.

An effort to organize workers in fast-food restaurants in New York City called Fast Food Forward was launched November 29, 2012 with strikes by several hundred workers. New York Communities for Change, which organizes low-wage immigrant workers, wants to raise wages in New York City fast-food restaurants from the current median $9 an hour to $15 an hour with the help of the SEIU and several religious groups. Experts emphasized that it is usually far easier for workers to quit fast-food after they find higher-wage jobs than to remain in fast-food restaurants and win wage increases in a very competitive industry based on low prices.

Some observers used Fast Food Forward as a metaphor for larger issues. Eduardo Porter in the New York Times on December 5, 2012 noted that it is ever harder to find full-time work at the minimum wage because of scheduling software that schedules workers only when they are needed. With the labor market splitting into a high-end segment for the well-educated and a low-end segment that encompasses many low-wage workers, Porter speculated that there will be pressure for workers to raise wages via unionization or the government to step in with aid programs.

Porter's scenario has played out in seasonal farm work, where persisting low wages have led to many efforts to pressure farmers to raise wages and a range of government assistance programs that target farm workers and their children.

NLRB. The NLRB's General Counsel reported that two-thirds of employee charges alleging unlawful firing in retaliation for protected concerted activities or discrimination in retaliation for union activities were found to be credible. The General Counsel issues complaints against offending employers, who can settle with the General Counsel or defend their actions in a hearing before an administrative law judge.

The Board ruled 3-1 in December 2012 case (United Nurses, 359 NLRB 42) that a Rhode Island union whose collective bargaining agreement includes a union-security clause may charge non members dues for union lobbying expenses that are "germane to collective bargaining, contract administration or grievance adjustment." The majority said it would determine, on a case-by-case basis, whether union expenses devoted to a particular legislative goal are chargeable to workers who object to paying dues.

The US Supreme Court's 1988 Beck decision held that unions may charge non-members for collective bargaining expenses by paying assessed dues and requesting a refund. The NLRB's United Nurses expands the definition of collective bargaining expenses to lobbying that is "germane" to collective bargaining.

Raley's. Some 7,000 workers employed by Raley's, Nob Hill and Bel Air grocery stores and represented by United Food and Commercial Workers Locals 5 and 8 went on a nine-day strike in November 2012 after Raley's unilaterally imposed its final offer in bargaining, freezing wages for two years and eliminating premium pay for hours worked on Sundays and holidays. The previous contract expired in October 2011, and the UFCW charged Raley's, a chain with 23 percent of the Sacramento grocery market, with bad-faith bargaining.

Raley's said it must reduce its labor costs to remain competitive against non-union retailers such as Wal-Mart, which surpassed Safeway to become the number two grocery chain in the Sacramento, with a 14 percent market share. A major issue in UFCW-Raley's negotiations was the cost of health insurance. Raley's pays $6.20 an hour for health insurance on top of wages that range from $10 to $21 an hour, and Raley's employees do not contribute for their health insurance. Wal-Mart workers average about $13 an hour.

The UFCW agreed to a contract that froze wages and temporarily suspended extra pay for working on Sunday for 11,000 employees at Save Mart in September 2012, and another covering 22,000 workers employed by Safeway and Von's stores in November 2012. Both Save Mart and Safeway agreed to continue funding the joint union-employer health care plan that Raley's said it can no longer afford.

Long Beach approved an ordinance that requires hotels with more than 100 rooms to pay their employees at least $13 an hour beginning late in 2012. Measure N is the third local ordinance that sets a minimum wage for hotel workers, following Emeryville in northern California and a Los Angeles city ordinance that covers Los Angeles Airport-area hotels.

Robert Rodriguez, "UFW gets fuel for new contracts with farmers," Fresno Bee, December 16, 2012. Vald‚s, Dionicio Nod¡n. 2011. Organized Agriculture and the Labor Movement before the UFW: Puerto Rico, Hawaii, and California. University of Texas Press.

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