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April 2016, Volume 22, Number 2

UFW, Unions, DOL

The United Farm Workers of America in March 2016 endorsed Democrat Hillary Clinton in the 2016 presidential election, citing her support for the Agricultural Job Opportunity, Benefits and Security Act. The UFW says it represents farm workers in 10 states.

The UFW and others celebrated Cesar Chavez's March 31 birthday; Chavez died in 1993 at 66. The UFW says that its priorities in 2016 include encouraging people to vote, arguing for comprehensive immigration reform, advocating for 8/40 overtime pay for farm workers, and developing a strategic plan for the future. Citing increased imports of fruits and vegetables, the UFW says that it wants to work with farm workers and their unions abroad to raise wages.

On March 16, 1966, 77 marchers began a Delano-to-Sacramento march for contracts for grape pickers. In March 2016, the 17 who are still alive remembered their march, which ended on Easter Sunday in 1966 with a contract raising the wages of grape pickers at Schenley, a conglomerate with table grape vineyards.

ALRB. The ALRB identified concerted-action protests by workers when no union is present and against sexual harassment as priorities in 2016. The Board has promised to expedite its processes to make faster decisions in a bid to achieve settlements quickly rather than engage in protracted litigation. The Board is also creating a worker-education unit to inform workers who do not speak English or Spanish about their rights under the ALRA.

Gerawan sued the ALRB for documents related to an unfair labor practice complaint that charged Gerawan fired a worker in retaliation for supporting the UFW. Gerawan maintained that the ALRB investigation was flawed.

The ALRB in 1975 promulgated an access rule that allows union organizers to "take access" to the workers on a farm before work begins, at lunch, and after work. The California Supreme Court upheld the access rule in 1976.

In February 2016, the Pacific Legal Foundation filed a federal suit on behalf of Cedar Point Nursery and Fowler Packing Company alleging that the access rule violated the US constitution. The UFW staged a demonstration at Cedar Point and was refused access at Fowler in winter 2016.

Unions. Some 14.8 million of the US's 138 million wage and salary workers belonged to unions in 2014, including 7.2 million public sector workers and 7.6 million private sector workers. Two million more workers were represented by unions but were not union members.

Union members earned an average $980 a week, 26 percent more than the $775 earned by non-union workers.

Fewer than seven percent of the 113 million private sector workers were union members, compared with 35 percent of the 21 million public sector workers. Only one percent of the average 1.3 million agricultural workers were union members, about 15,000. New York has the highest unionization rate, 25 percent, and North Carolina the lowest, three percent.

Most union members are public employees, and most are in the 20 states that allow contracts that require all workers to pay fees to unions. However, many of the actions that unions take on behalf of their members are political, prompting some California teachers to sue their union to end "agency fees" or fair share service fees, mandatory payments that help to cover the cost of union collective bargaining activities, including "the cost of lobbying activities."

In states that allow mandatory payments, half of public employees are represented by unions, compared to less than 20 percent in states that do not permit mandatory payments. In Wisconsin, the statewide teachers union lost half of its members when the state government prohibited mandatory payments.

In 1977 (Abood), the US Supreme Court ruled that mandatory fees to cover collective bargaining costs were lawful to avoid free riders. In Friedrichs v. California Teachers Association, the USSC in March 2016 deadlocked 4-4 on whether workers who object to their union's activities must pay agency or fair-share fees to cover union bargaining costs. The deadlock leaves in place a lower court order requiring fair-share payments, confirming Abood.

Friedrichs and other teachers opposed to the CTA said that everything that public sector unions do is political. Teachers unions countered that, since they must represent all of the workers in the bargaining unit fairly, all members of the bargaining unit should contribute to the union's bargaining costs. By some estimates, about 10 percent of California teachers are agency payers rather than union members.

A Wisconsin state law that prevented private-sector unions from collecting the equivalent of union dues was struck down in April 2016 by a state judge who found it violated the state's constitution. The judge found that "Labor is a commodity that can be bought and sold," so that unions "have legally protectable property interest in the services they perform for their members and nonmembers," such as the collective bargaining that they do on behalf of all workers in a bargaining unit. Governor Scott Walker vowed to appeal.

The United Auto Workers ratified new three-year contracts with the Big Three Detroit automakers in Fall 2015, but the UAW fears loss of jobs as production of small cars shifts to Mexico, where wages and benefits average $8 an hour, compared to $38 in the US. The labor costs of US-produced autos are about $2,300 per car.

McDonald's is facing NLRB charges that it is a joint employer with some of its franchisees who fired protesting workers. McDonald's USA LLC has slowed the hearings on the charges by contesting the NLRB's General Counsel's request for documents.

DOL after July 1, 2016 will require employers to disclose their relationships with consultants they use to persuade workers not to vote for unions. DOL says that three-fourths of employers hire "persuaders" to educate their supervisors on how to discourage support for unions.

DOL. The WHD in January 2016 issued guidance on joint employment under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act when two or more employers are associated with one employee, as when a staffing firm brings workers into a business. WHD looks to the "economic realities" of each case, asking whether the parent business handles payroll or otherwise facilitates employment even if the staffing firm completes immigration and other paperwork and issues checks.

The major issue is what WHD calls vertical dependence, as when a farmer uses a FLC to bring workers to a farm. So-called fissured workplace have a combination of direct hires and workers brought to the business by other entities, and WHD looks at the "economic dependence" of intermediaries on the business to which workers are brought.

Some observers say that the ability of staffing firms to pay any back wages due workers should be the main criterion for determining whether the business where temp employees are working is a joint employer.

WHD reported that its 1,000 investigators recovered $247 million in back wages for 240,000 workers in FY15. WHD has raised the share of investigations that are agency-initiated or targeted to 42 percent in FY15, not just responding to complaints and is finding significant violations. Some say that WHD's focus on complex employment relationships, coupled with a policy of seeking maximum penalties for violations, has slowed the collection of back wages.

The NLRB in the 2015 Browning-Ferris decision held that the business where temp employees sorted waste was a joint employer with the temp agency, and is considering joint employment between McDonald's and its franchisees, asking whether McDonald's exerts enough control to make it a joint employer for labor relations purposes. OSHA is also considering whether there is joint liability between a franchisor and its franchisees.

Fissured Workplaces. WHD Administrator David Weil coined the term fissured workplace to describe situations in which staffing agencies or subcontractors provide workers to another business. Weil argued that stock markets encouraged firms to focus on their core competencies, and they responded by shedding activities, first accounting and then staffing.

The usually smaller firms providing workers to often brand-name firms are often not highly profitable, so that rising stock prices for a hotel chain may be associated with lower wages and benefits for the workers whose uniform says Hilton or Sheraton but who are actually employees of a staffing firm. Contractors may rely on subcontractors; Weil argues that the more layers between worker and beneficiary, the greater the potential for exploitation.

Brand-names often set quality standards for their contractors and subcontractors, and some argue that these quality standards can make Hilton or Sheraton joint employers with the contractors who staff their hotels.

Weil distinguishes horizontal joint employment, where two farms with separate owners share employees from vertical joint employment, where a person is an employee of a contractor who in turn is dependent on a client, such as hotel staff provided by an agency to Hilton. Weil says that WHD should ask whether Hilton supervises the agency work, how long the agency provides workers to Hilton, and whether the agency workers are integral to Hilton's business.

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