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July 2016, Volume 22, Number 3

UFW, ALRB, NLRB, EPA

The United Farm Workers highlighted its achievements during its 20th constitutional convention in Bakersfield May 19-22, 2016, citing contracts with Dole in strawberries, D'Arrigo in lettuce, and four mature-green tomato producers: Pacific Triple E, 450 workers; Gargiulo Tomatoes, 350 workers; Amaral Ranches, 300 workers; and San Joaquin Tomatoes, 350 workers.

The UFW has contracts with Gallo of Sonoma and Washington's Chateau Ste. Michelle wineries, as well as the Three Mile Canyon dairy in eastern Oregon. The UFW won elections at vegetable producer Hiji Bros and nursery Seaview Growers in Oxnard in April 2016, as workers voted 111 for the UFW, 61 to retain United Food and Commercial Workers Local 5, and six for no union. Workers complained about poor representation from the UFCW and filed a decertification petition; the UFW intervened.

The UFW announced that it was using the Equitable Food Initiative to improve conditions for farm workers in the US and abroad, saying "We realized we didn't have the ability solely with collective bargaining to improve the lives of farmworkers in the US or anywhere else." EFI audits farms and allows those that are certified by third-party auditors to use a Responsibly Grown, Farmworker Assured label on their produce. EFI certified nine farms with 3,100 workers as of May 2016, including four in the US, four in Mexico and one in Canada.

The UFW won an election on a 347-68 vote at Klein Management's 124-acre Gourmet Blueberry-California LLC blueberry farm near MacFarland in Kern county on May 21, 2016; the ALRB said that 629 workers, mostly provided by contractor Rigoberto Solorio, were eligible to vote. Some reports said that most of the striking blueberry workers were Mixtecos and Zapotecos from Oaxaca.

Workers went on strike after Klein reduced the piece rate from $0.65 to $0.60 a pound, saying that because there was more fruit, workers could earn higher wages at the lower piece rate. Blueberries are repicked up to 10 times a season, and Klein said that it began the season paying $0.95 a pound. Operator Buck Klein says that workers were averaging over $17 an hour at the $0.60-a-pound piece rate. Klein said he needs to receive at least $2.85 a pound to earn a profit on blueberries.

The UFW in March 2016 endorsed Hillary Clinton for president, noting her support for the Agricultural Job Opportunity, Benefits and Security Act (AgJOBS). Helen Chavez, widow of UFW founder Cesar Chavez, died in June 2016; Cesar died in 1993. The Chavezes had eight children.

ALRB. The ALRB's budget has more than doubled, from $4.4 million and 33 FTE in FY2011-12 to $9.5 million and 64 FTE in 2015-16.

The ALRB issued its first decision of 2016 in April, upholding an ALJ decision that the decertification election held at Gerawan Farms on November 5, 2013 was unlawful because Gerawan supported the employees who wanted to decertify the UFW (42 ALRB 1). The ballots from the election will not be counted.

The ALJ and Board rejected contentions that the employee leading the decertification effort, Sheila Lopez, was hired by Gerawan to do so. However, they concluded that Gerawan committed several unfair labor practices that prevented a free test of whether its employees wanted to retain the UFW, which was certified as bargaining representative for Gerawan workers in 1992.

The ALJ and the Board rejected Gerawan's argument that the UFW had abandoned its employees for two decades. The Board emphasized that the ALRA does not allow a union to abandon the workers it represents, that is, a certified union remains certified until it is decertified. The Board upheld earlier decisions that any employer interference with decertification efforts can prevent a free and fair election. Gerawan appealed, making it likely that the case will persist for several more years, during which there is no UFW-Gerawan contract in effect.

Separately, the Fifth District Court of Appeals in Fresno in May 2015 found that the mandatory mediation and conciliation law under which the UFW requested bargaining in 2012 with Gerawan was unconstitutional. The Board appealed that decision to the California Supreme Court.

In another case, the Fifth District Court of Appeals in May 2016 held that individual farm workers have the right to observe mandatory mediation proceedings involving their employer. The UFW and the ALRB denied Lupe Garcia and other Gerawan workers access to mandatory mediation sessions.

In Sabor Farms (42 ALRB 2), two employees complained after they were terminated for engaging in protected concerted activities after being assigned more difficult work harvesting cilantro and then terminated when they refused. The ALJ found that Sabor, via contractor Foothill Packing, violated the employees' rights, and the ALRB agreed, ordering that the fired workers be reinstated with back pay.

NLRB. The National Labor Relations Board, which regulates union activity in most private-sector nonfarm establishments, reported that the median time between election petitions being filed and elections being held was 24 days in the year to April 2016, down from 38 days before changes aimed at speeding up NLRB election procedures. Unions win about two-thirds of the elections supervised by the NLRB.

The NLRB in August 2015 decided that Browning-Ferris was a joint employer of workers brought to its recycling facility by a staffing agency because BF indirectly controlled the employment relationship. Previous NLRB decisions said that an employer must directly control employees to be a joint employer. A pending case could make McDonald's USA jointly liable with its franchisees for labor law violations. Republicans in Congress want to undo these joint-employer decisions.

Congressional opponents of the NLRB's Browning-Ferris decision hope to attach a rider to the omnibus bill expected to fund the federal government in FY17 that would block the NLRB from enforcing Browning-Ferris joint employment.

Unions. In 2014, a California court ruled that teacher tenure under the California constitution was unlawful because it could protect poor teachers and deprive students of equality in education. In April 2016, a California Court of Appeal reversed the district court, ruling that teacher tenure was constitutional.

Amazon employs 90,000 workers in its warehouses that ship products to consumers, and none are represented by unions. Some say that high turnover limits the attraction of unions, as dissatisfied workers who might support unions quit. Amazon warehouse workers earn about $13 an hour and receive benefits, but must satisfy productivity standards to keep their jobs.

DOL. In FY 2015, DOL's Wage and Hour Division recovered back wages of $247 million for 240,340 workers. When WHD orders back wages, it expects employers to pay workers and send it proof of payment. When workers cannot be found, employers send payments to DOL, which attempts to find them and, if it cannot, gives the money to the US Treasury after three years. Between five and 10 percent of back wages are turned over to the US Treasury.

DOL in March 2016 required employers to report the hiring of third-party consultants who advocate for non-union workplaces. DOL's so-called persuader rule is controversial, prompting suits to block it from taking effect as scheduled July 1, 2016.

DOL Secretary Thomas Perez considers himself a friend of both labor and business, especially of "high-road" employers. Perez was born in the US to immigrant parents from the Dominican Republic, and was a lawyer in the DOJ civil rights division and Maryland's labor secretary before becoming DOL Secretary.

EPA. The Environmental Protection Agency has been trying to update protections for farm workers despite opposition from farm employers. A 2014 draft version of the updated regulation included a provision that required farm employers to provide information about the pesticides they use to workers or third parties representing workers within 15 days or face fines. Farmers protested this third-party rule, and it was removed from the 2015 version of the Worker Protection Standard.

However, the final version of the WPS included the third-party rule, prompting the House to vote in June 2015 to block the EPA from enforcing the third-party rule.


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