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April 2013, Volume 19, Number 2

UFW, ALRB, Unions

Cesar Chavez died in 1993, and there were marches around California to celebrate Chavez's March 31 birthday. Google featured Chavez on its "doodle" above the search bar March 31, 2013, prompting complaints from some who thought that Easter Sunday should feature a resurrection theme.

The UFW is trying to use mandatory mediation to obtain contracts on farms where it was certified to represent workers, did not negotiate a first contract, and the employer was found to have engaged in unfair labor practices. Its major target in 2013 was Fresno-based Gerawan Farming.

The Independent Union of Agricultural Workers requested an election at Gerawan in May 1990, the UFW intervened and, after Gerawan was found to have committed several ULPs in laying off some workers around the time of the election and ending the provision of housing for some workers, the UFW was certified as the bargaining representative of Gerawan workers in 1992.

Mandatory mediation, effective January 1, 2003, allows "binding mediation" if a union and an employer with at least 25 employees in any week of the preceding year cannot reach agreement within 90 days. After 90 days of fruitless bargaining, either the union or the employer can request the appointment of a mediator, who tries to help the parties reach agreement for 30 days. If mediation fails, the mediator certifies that the parties are at a stalemate and has 21 days to propose a collective bargaining agreement between the parties that the ALRB can impose on them.

For elections such as Gerawan held before January 1, 2003, mandatory mediation can be invoked if the parties never had a collective bargaining agreement, the parties failed to reach agreement within a year of the union's demand to bargain, and the employer committed one or more ULPs.

SB 75, effective January 1, 2004, modified mediator guidelines and the ALRB's review of the mediator's proposed agreement. SB 126, effective January 1, 2012, reduced the time before mediation can be requested and allowed requests for mediation 60 days after a union is certified (if there was employer interference that prevents a free and fair new election) and 60 days after a decertification petition is dismissed because of employer interference in the vote.

Mediators must follow the stipulations of the parties about current wages and benefits, the financial condition of the employer (if the employer says he cannot afford to pay requested wages), wages and benefits "covering similar agricultural operations with similar labor requirements" and in "comparable firms or industries in geographical areas with similar economic conditions, considering the size of the employer, the skills, experience and training required of the employees, as well as the difficulty and nature of the work," and changes in the consumer price index.

SB 25 would amend the ALRA to end any waiting period before mandatory mediation can begin if a union was certified before 2003 to represent farm workers on a farm, that is, the employer need not have committed an unfair labor practice. SB 25 also clarifies that an ALRB certification of a union as bargaining agent for workers transfers automatically from sellers to buyers of farms until a majority of farm workers vote for "no union" in an ALRB-supervised decertification election.

ALRB. In D'Arrigo Bros. Co. of California (2013) 39 ALRB No. 4, the ALRB in a 2-1 decision upheld an ALJ decision not to count the ballots cast in a November 17, 2010 decertification election because D'Arrigo allowed supervisors to assist dissatisfied workers in signature gathering in four crews, about 10 percent of the 1,665 D'Arrigo employees, an action that prevented a free and fair election, especially because pro-union supporters were denied the opportunity to solicit signatures during work time. However, the ALRB refused to require mandatory mediation as a remedy for D'Arrigo?s interference.

The ALRB rejected several ALJ findings, including that D'Arrigo's labor relations director instigated the decertification effort, that D'Arrigo's failure to provide the address list for laid off workers immediately tainted the election, and that a dissatisfied worker who solicited signatures on the decertification petition was acting on behalf of D'Arrigo.

The ALRB dissenter concluded that D'Arrigo's interference was not sufficient to ignore the ballots. He called for counting the ballots and using an outcome-determinative standard to determine if D'Arrigo's interference affected the vote, that is, if the vote was close, it would be more likely to be set aside because of the possible taint from the 10 percent of the workers in four crews.

In South Lakes Dairy Farmÿ(2013) 39 ALRB No. 1, the ALRB upheld an ALJ decision dismissing allegations that South Lakes fired eight employees in retaliation for their protected concerted activities. Two of the workers were fired for cause, and the other five were terminated after South Lakes determined that they were not efficient. South Lakes is a dairy farm begun in Pixley in 2005 that had 55 employees in 2012.

The UFCW began to take access to South Lakes in April 2008. The workers engaged in various union activities, but the ALJ concluded that the employer did not know of their union activities, so that unlawful retaliation was not a reason for the discharges.

In South Lakes Dairy Farmÿ(2013) 39 ALRB No. 2, the ALRB rejected a request by the General Counsel to overturn ALJ credibility determinations.

In RBI Packing (2013) 39 ALRB No. 3, workers in Blythe voted 51-0 for the UFW in February 2013. The UFW asked the ALRB to also name Gila Ranch as an employer; the ALRB rejected this request. Gila Ranch has had several owners seeking to use its location near the Colorado river for water banking. There are 150 acres of citrus on Gila Ranch that were previously farmed by Sun World and Coachella Growers.

An ALJ decision in Premiere Raspberries dba Dutra Farms in January 2013 dismissed allegations that Dutra fired Dalia Santiago Agustin for engaging in protected concerted activities (PCC). The ALJ concluded that Dutra would have fired Santiago lawfully for misconduct even if she had not engaged in PCC; he did not find her testimony truthful or convincing.

The ALJ concluded that Dutra's unlawful refusal to comply with a previously-issued court order to reinstate Santiago until May 12, 2012 was an 1153(a) unfair labor practice, since it could lead workers to believe that Dutra would not obey legal orders.

Roger (Rogelio) Mahony, the first chair of the ALRB and later cardinal of the Los Angeles-area Catholic church, was heralded as a friend of farm workers and immigrants. The Los Angeles archdiocese, with as many Catholics as the New York and Chicago archdioceses combined, is 70 percent Hispanic. Almost half of adult American Catholics under 40 are Latino.

Documents released in January 2013 that show Mahony protected pedophile priests who abused the children of unauthorized foreigners. Monsignor Peter Garcia headed Latino outreach efforts, was sent to New Mexico after being accused of abusing a boy and threatening to have him deported if he reported the incident, and was protected by Mahony, as were several other Los Angeles priests who used the unauthorized status of the boys they abused to fend off complaints. As a result, Mahony will no longer make public statements on behalf of the church.

Mario Bustamante, who led a walkout at the UFW convention in September 1981, was profiled in the Imperial Valley Press on February 7, 2013. Bustamante, a lettuce worker, opposed an emergency resolution that would have increased the power of the UFW's executive board, and walked out with 50 other delegates when it was nonetheless adopted in 1981.

Bustamante said Chavez opposed the 1979 lettuce strike, preferring to focus on boycotts instead, and supported it only after Imperial Valley farm workers decided to strike despite Chavez's opposition. The strike was a Pyrrhic UFW victory. Many of the growers that agreed to raise wages from $3.75 to $5.25 an hour later went out of business, leaving the UFW with few contracts with vegetable growers.

Unions. Unauthorized workers employed in the US are protected by US labor laws, but they may lack remedies if employers violate their rights. After three-fourths of the 200 production workers at Palermo's Villa pizza in Milwaukee in May 2012 sought to unionize, Palermo's asked its workers to re-verify their legal status, prompting a strike. About 75 striking workers were terminated June 25, 2012 when they could not produce work-authorization documents.

Palermo's, which is one of the largest US producers of frozen pizza, said it was responding to an I-9 audit that suggested many of its workers were unauthorized. Labor activists countered that Palermo's was trying to discourage workers from voting for the Palermo Workers Union. The NLRB in November 2012 agreed with Palermo's that the workers were terminated for the lawful reason of being unable to produce work-authorization documents.

Tyrone Freeman, head of the California's largest union locals, the 160,000-member Service Employees International Union United Long Term Care Workers Local 6434 that represented in-home care providers in Los Angeles, was convicted of embezzling money from the locals in January 2013. The SEIU, with two million members, is one of the largest US unions.

NLRB. The US Court of Appeals for the District of Columbia Circuit in January 2013 ruled that President Obama's recess appointments to the National Labor Relations Board and other agencies. The Court ruled that the President may not make recess appointments that bypass the Senate, potentially invalidating over 300 NLRB decisions in which Obama's recess appointees participated in 2012.

In April 2013, Obama nominated one Democrat and two Republicans to give the NLRB a full five-member board.

Some 24,300 cases were filed with the NLRB in FY12, about the same as a year earlier, including 21,600 unfair labor practice charges and 2,600 representation cases, including 1,600 initial representation elections. About 90 percent of these elections were held pursuant to agreements between the parties within a median 38 days after a petition for an election was filed.

Almost three-fourths of ULP cases were closed within 120 days; the NLRB's General Counsel issued 1,300 ULP complaints. After voluntary settlements or withdrawals of ULP charges, the "merit factor" in remaining ULP charges was steady at 36 percent, defined as the share of charges that result in the issuance of complaints.

Senator Rand Paul (R-KY) introduced a bill, the National Right-to-Work Act, in January 2013 to amend the National Labor Relations Act to prohibit union security clauses that require the payment of union dues or fees as a condition of employment in collective bargaining agreements.

BLS. The share of the 128 million US wage and salary workers belonging to unions was 11.3 percent in 2012, down from 11.8 percent in 2011 and well below the 20.1 percent of 1983. Some 35.9 percent of public sector workers were union members, compared with 6.6 percent of private sector workers.

New York had the highest unionization rate, 23.3 percent, and North Carolina the lowest, 2.9 percent. There were sharp drops in union membership in Wisconsin and Indiana, states that enacted laws in 2012 making it easier for workers in unionized workplaces to avoid paying union dues or fees.

There were 14.3 million union members in 2012, including seven million private sector workers and 7.3 million public employees. Local government workers had the highest unionization rate, 42 percent, while private-sector agriculture had the lowest rate, 1.4 percent. By occupation, education workers had the highest unionization rate, 35.4 percent, and farming the lowest rate, 3.4 percent.

The number of Hispanic union members rose by over 20 percent in the last decade, while the share of white union members dropped 13 percent. Some unions believe that their support for legalizing unauthorized workers will translate into newly legalized workers being eager to join unions. A quarter of the 2.1 million members of the Service Employees International Union, well known for its Justice for Janitors campaign.

Full-time union members had median weekly earnings of $943 last year ($49,000 a year), compared with $742 ($38,600) for comparable nonunion workers, a 26 percent wage premium.

There were 19 major strikes (involving 1,000 or more workers) in 2012 that involved 1.1 million lost work days, about the same as in 2011. The most lost workdays were from a strike by the Bakery, Confectionery, Tobacco Workers, and Grain Millers union at American Crystal Sugar; 1,300 workers went on strike in August 2011, and were on strike for all of 2012. Eight of the 19 major strikes were in health care, including five relatively short strikes called by the California Nurses Association against Sutter Health hospitals.

The AFL-CIO during its annual meeting in February 2013 reported that its 57 affiliated unions had an average 8.4 million members in 2012, down 70,000 from 2011. There are another 3.1 million members of Working America, the AFL-CIO's affiliate for workers who are not represented by a union, and 4.2 million retired union members in the Alliance for Retired Americans.

AFL-CIO President Richard Trumka said that unions must change in order to organize more workers by collaborating with organizations such as the National Day Laborer Organizing Network and the National Domestic Workers Alliance rather than seeing them as competitors and devise new strategies to represent non-traditional employees, such as home care and child care workers who are scattered in private-sector homes.

The US Bureau of Labor Statistics reports the availability of fringe benefits such as health insurance and paid vacations each year in its National Compensation Survey ( The report for March 2012, released in July 2012, emphasized that employees of large employers (500 or more employees) received more fringe benefits than employees of smaller employers and that paid vacation, offered to 91 percent of private-sector full-time employees, and paid holidays, offered to 90 percent, were the most commonly offered benefits.

The report is based on responses from 12,545 establishments and provides data on 123 million workers, including 104 million private-sector workers (8.7 million in production occupations).

Among private employers with 500 or more workers, 91 percent provided paid holidays, 90 percent provided paid vacations and 82 percent provided paid sick leave.