April 2014, Volume 20, Number 2
UFW, ALRB, Unions
The $10 million film, "Cesar Chavez: An American Hero," was released March 28, 2014. The film stars Michael Pe¤a as Chavez, and was shot mostly in the Mexican state of Sonora, where sites in Delano were re-created. Chavez was born in Arizona, but his family lost the farm they owned when he was 12 and moved in 1939 to California to be farm workers.
The film portrays Chavez as virtuous, and touches briefly on his flaws, including time away from his family of seven children and his intolerance of dissent that prevented the UFW from creating union locals that could generate local leaders. The film emphasizes Chavez's commitment to non-violence, and his fasts that turned the UFW's struggles into national news.
UFW spokesperson Marc Grossman said: "The movie captures the spirit, humanity and complexity of a man who taught ordinary people to do extraordinary things." In 1972, Chavez said: "as long as we have a poor country bordering California, its going to be very difficult to win strikes."
Most of the reviews of the Cesar Chavez film were laudatory, praising Chavez as an American hero who tried to bring social justice to farm workers. Several books were released near the film's opening, including one by ex-Los Angeles Times reporter Miriam Pawel, which focused on the contrast between Chavez the charismatic leader and Chavez the union leader who did not tolerate internal dissent. Chavez's desire for sacrifice and his disdain for middle-class values also clashed with the goals of many farm workers who wanted to rise to the middle class.
Bruce Neuburger recounts his efforts to radicalize farm workers by teaching them about the class struggle as he worked in the lettuce fields; he learned that some farm workers identified with their employers rather than the UFW. When Neuburger became a lettuce harvester in 1971, there were still white and black lettuce workers, including many with alcohol and other personal issues. Neuburger notes that the UFW has fewer members today than it did in 1970.
ALRB. William B. Gould IV, chair of the National Labor Relations Board from 1994 to 1998, was appointed chair of the Agricultural Labor Relations Board effective March 18, 2014.
Gerawan Farming, the largest US producer of stone fruit such as nectarines, peaches and plums, dominated California farm labor relations news in Spring 2014. The UFW won an election to represent Gerawan workers in 1990 and was certified as the bargaining representative at Gerawan in 1992.
Despite negotiations in 1995, there has not yet been a UFW-Gerawan contract. The UFW requested negotiations in 2012. There were 14 bargaining sessions in the first half of 2013 before the UFW requested the appointment of a mediator under 2002 amendments to the Agricultural Labor Relations Act, SB 1156 and AB 2956, that provide for Mandatory Mediation and Conciliation (MMC) if growers and certified unions are unable to negotiate agreements.
MMC can be triggered by unions certified to represent workers before January 1, 2003 if the parties fail to reach agreement for one year after the union made bargaining demands, the employer committed an unfair labor practice (ULP), and the parties have never had a collective bargaining agreement. The ULP can be old or recent, so that unions certified in the 1970s on hundreds of farms that have never had contracts could request bargaining today and, if employers commit ULPs, request MMC to obtain contracts.
Gerawan employees, most of whom did not participate in the 1990 election, are divided on whether they want the UFW to represent them. Gerawan employee Silvia Lopez presented a decertification petition to the ALRB in September 2013 that was rejected. A second petition in October 2013 was rejected by the regional office, a decision that was overturned by the ALRB Board so that Gerawan workers voted on whether to retain the UFW as their bargaining representative November 5, 2013.
The ALRB regional office impounded the ballots, saying it must deal with pending ULP charges filed by the UFW before counting the ballots.
On November 22, 2013, the Board ordered the UFW-Gerawan contract prepared by mediator Matt Goldberg under the MMC process to be implemented. Goldberg's contract would raise wages at Gerawan by 12.5 percent over three years, add paid holidays and bonuses, and establish a seniority system. Current hourly wages of $10 an hour would rise to $10.25 retroactive to July 27, 2013, to $10.75 on March 15, 2014, and to $11.25 on March 15, 2015. Other Gerawan workers would receive 2.5 percent wage increases retroactive to July 27, 2013 and five percent increases in March 2014 and March 2015.
Gerawan asked the 5th District Court of Appeal in Fresno to stay the Board's order while it challenges the constitutionality of the MMC process. Gerawan argues that due process of law prohibits the ALRB from imposing a contract on a private employer that bargained with a certified union, but failed to reach agreement.
During a hearing in April 2014, Dan Gerawan said that the UFW has "been gone more than 20 years and they came back to tell the industry's highest paid employees that they either had to pay them three percent of their wages or lose their jobs." The UFW's Mario Martinez countered that a contract would protect "workers who have been there 15 years [and] reported to us they have been fired for no reason."
The UFW and several Gerawan employees in February 2014 filed a class-action federal suit against Gerawan. The suit alleges that the workers' piece-rate earnings were less than the state's minimum wage, that workers were not paid overtime wages, and that they were not given proper rest breaks. Gerawan denied the allegations.
Other Cases. In Perez Packing, 40 ALRB 1 (2014), the Board rejected employer Perez's assertion that it had not committed an unfair labor practice because it appealed the Board's decision finding a ULP to the courts.
The UFW was certified to represent Perez workers in 1989 but did not negotiate a contract. In January 2012, the UFW requested bargaining, which commenced but did not yield a contract, prompting the UFW's request for MMC. The Board returned the case to determine if the UFW had made a request to bargain before the January 1, 2003 date that the MMC law was effective.
In Arnaudo Brothers, 40 ALRB 2 (2014), the Board dismissed employer and UFW complaints about the transcript of mediation proceedings, calling them pre-mature and advising the parties to wait until the mediator has filed a report with a recommended collective bargaining agreement.
In Gurinder S. Sandhu dba Sandhu Poultry and Farming, an ALJ in February 2014 found that Sandhu terminated Elvia Hernandez after she protested a change in work assignments and associated issues, such as show-up pay, gasoline expenses and payment for the work performed that week, that affected her and other workers and was thus concerted activity. The ALJ also found that Sandhu offered to Board agents to rehire Hernandez, and his backpay liability stopped with this offer.
The ALJ refused a request that Sandhu supervisors undergo sexual harassment training to be conducted by Board agents.
In Kawahara Nurseries, an ALJ in January 2014 found that Kawahara refused to rehire five UFW supporters after a UFW organizing campaign. The ALJ dismissed other charges that Kawahara discriminated against UFW supporters in layoffs.
Unions. The Bureau of Labor Statistics reported in January 2014 that the 14.5 million union members were 11.3 percent of US workers, marking stability in the union share of US workers. In 1983, 23 percent of US workers were union members.
Over 35 percent of public-sector workers were members of unions in 2013, compared to less than seven percent of private-sector workers.
The share of workers represented by unions is slightly larger than the share who are union members because not all workers join the unions that represent them. In 2013, 12.4 percent of workers were represented by unions, including almost 39 percent of public sector workers and 7.5 percent of private-sector workers. Slightly more private-sector workers were covered by union contracts, 8.1 million, than public-sector workers, 7.9 million, in 2013.
Union workers earn more than non-union workers. Full time union workers earned an average $950 a week, compared with $750 for non-members. In the private sector, union workers earned $885 compared with $730 for non-union workers, and in the public sector union workers earned $995 compared with $830 for non-union workers.
However, most contracts negotiated in 2014 are expected to include modest wage increases. One survey suggested that two-thirds of employers expect to negotiate wage increases of one to three percent a year in 2014. The average wage increase in contracts negotiated in 2013 was 2.1 percent, a year when inflation was 1.5 percent.
Trends. US unions are struggling to add members and negotiate contracts, especially in the private sector. Unions that made concessions during the 2008-09 recession are trying to restore wages and benefits to previous levels, but are not always successful.
Boeing eliminated defined-benefit pensions for newly hired workers even while it was earning record profits in a contract approved by workers in January 2014. Unions are countering such efforts with campaigns to raise minimum wages and focus on inequality, but most analysts expect more private sector employers to eliminate defined benefit pensions.
The US Supreme Court heard arguments in January 2014 on the constitutionality of state laws that require employees in unionized workplaces to pay "fair-share" dues to cover the costs of collective bargaining. In Abood v. Detroit Board of Education (1977), the USSC ruled that teachers could not be required to join the teachers' union, but could be required to pay for the cost of collective bargaining because states had an interest in dealing with a union to assure labor peace.
In Harris v. Quinn, some of the 20,000 home health care workers in Illinois alleged that paying dues to the Service Employees International Union violated their first amendment rights to avoid supporting a union that advocated a larger government. The workers, who were made state employees and became members of the SEIU after a card-check election, argued that the labor peace argument did not apply to them because they work in individual homes rather than in a single workplace.
In 2012, the US Supreme Court ruled in Knox vs SEIU that union members had to be given an "opt-in system" for special union assessments and dues increases rather than merely an opportunity to opt out of such charges.
The United Auto Workers lost an election at Volkswagen's Chattanooga, Tennessee plant 626-712 in February 2014 despite the UAW's belief that it had majority support among workers. Volkswagen was neutral during the organizing effort, but Senator Bob Corker (R-TN) said that, if the workers voted for no union, VW would build a SUV in Chattanooga. German, Korean and Japanese auto makers have opened 14 auto assembly plants in southern states, including eight in the past decade. None is unionized.
The UAW asked the NLRB to set aside the election, arguing that Corker and other elected leaders offered VW more state aid if the union vote was "concluded to the satisfaction of the state." The NLRB, in a 1948 decision known as General Shoe, can order an election to be redone if "laboratory conditions" were not satisfied, suggesting that if unlawful pre-election behavior likely changed the outcome, the NLRB can set aside the election.
VW received extensive state and local subsidies to open the plant. Over 80,000 workers applied for the 2,000 jobs paying $20 an hour when the plant opened in 2011.
After the vote, three VW workers sued VW and the UAW, alleging that the VW-UAW neutrality agreement violated the NLRA because VW gave the UAW a "thing of value." They cited the UAW's office inside the VW plant and meetings that workers were paid to attend. During these meetings, VW explained the works councils it intended to establish if the UAW won the election and allowed UAW representatives to address workers.
The UAW's defeat may make it harder to organize other foreign "transplant" auto assembly operations in southern right-to-work states that do not allow contracts requiring all workers in a plant to be union members. The UAW is trying to organize the Nissan plant in Canton, Mississippi, which employs 5,000 workers to make 300,000 vehicles a year at an average wage of $25 an hour. Some of the plant's workers, perhaps 20 percent, are contract or temp workers who are employees of the agencies that place them in the plant and thus would not be covered by any UAW-Nissan contract.
The UAW, which had a peak 1.5 million members in 1979 and 382,000 members in 2013, has $1 billion in assets and $115 million in dues income in 2012.
Bruce Rauner, who won the Republican primary in March 2014 and will face current Illinois governor Pat Quinn in November 2014, has promised to turn Illinois into the next Midwestern state that reduces the power of public sector unions, following Indiana and Wisconsin. Illinois' public pension system was underfunded by about $100 billion before reforms enacted by Democrats over union opposition in 2013.
The NLRB proposed new regulations governing election procedures in June 2011 that were not implemented because the Board lacked a quorum. When these regulations were proposed again in March 2014, employers attacked them, saying that they would allow unions to call quick elections and not give employers enough time to respond. Some employers say that, with more of the workers involved in union elections being immigrants, more time is required to educate workers about US unions.
NLRB data show a median time between petition and election of 38 days. However, union attorneys say that these data include cases in which employers and unions agree on the election date. If such cases are excluded, unions say the average time between union petition and election is 160 days.
Workers' Centers. The NLRB issued a complaint in January 2014 alleging that Wal-Mart violated the rights of 60 workers who protested during Black-Friday demonstrations in 2012 by unlawfully threatening and disciplining employees "for having engaged in legally protected strikes and protests."
The Organization United for Respect at Walmart (OUR Walmart) and Making Change at Walmart have been helping the United Food and Commercial Workers to organize Wal-Mart employees by holding demonstrations at Wal-Mart on Black Friday, the day after Thanksgiving. The charges that led to the NLRB complaint were filed by OUR Walmart.
OUR Walmart and Making Change are workers' center rather than unions, so they do not have to file financial reports with DOL (www.unionreports.gov). There are over 200 workers' centers around the US, including the Coalition of Immokalee Workers, and many receive support from unions and foundations to provide legal and other support to farm workers. Unlike unions, workers' centers do not have constitutions and elections to select leaders.
Many workers' centers were founded to organize immigrant workers overlooked by mainstream unions. Using highly visible protests, they often persuade fine-dining restaurants and other businesses that could be boycotted to reach settlements with them on issues from wages and sick days off to promotion opportunities.
Some employer groups say that, when the Restaurant Opportunities Center negotiates with high-profile chefs in New York City restaurants, it is engaged in collective bargaining and should be treated as a union. However, the National Labor Relations Board concluded in 2006 that the ROC was not a labor organization under the NLRA.
Neuburger, Bruce. 2014. Lettuce Wars: Ten Years of Work and Struggle in The Fields of California. Monthly Review Press. http://monthlyreview.org/press/books/pb3324/ Pawel, Miriam. 2014. The Crusades of Cesar Chavez A Biography. www.bloomsbury.com/us/the-crusades-of-cesar-chavez-9781608197101/