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October 2016, Volume 22, Number 4


The UFW endorsed Hillary Clinton in March 2016 after she agreed to help the union in its battle with Gerawan, according to documents released by Wikileaks in October 2016. Clinton also supports the Agricultural Job Opportunity, Benefits and Security Act (AgJOBS), which would create a special legalization program for farm workers.

The UFW won an election at Gerawan in 1990 and the ALRB certified the UFW to represent Gerawan employees in 1992, but no collective bargaining agreement was reached after a single round of negotiations in February 1995. In October 2012, the UFW requested negotiations again, but no contract was reached in early 2013 bargaining.

The UFW in 2013 requested mandatory mediation and conciliation (MMC), the ALRB rejected Gerawan's objection that the UFW had abandoned its employees, and MMC commenced in May 2013. Mediator Matt Goldberg proposed a contract in September 2013 and the ALRB ordered Gerawan to implement the MMC contract in November 2013. Gerawan refused.

Meanwhile, Gerawan workers circulated a petition for a decertification election, which was held on November 5, 2013. However, the ballots cast in the decertification election have not been counted. Instead, there was a four-month trial before ALJ Mark Soble to determine whether the mostly UFW allegations that Gerawan unlawfully interfered with the election prevented a free and fair test of employee desires. Soble concluded that Gerawan unlawfully interfered with the decertification election, and the ALRB agreed.

The 5th District Court of Appeal in May 2015 declared the state's 2002 MMC law unconstitutional, concluding that it unlawfully allows the state to impose "a distinct, unequal, and individualized set of rules" on each farm employer. Further, the Court ruled that the ALRB should have allowed Gerawan to challenge the UFW's continued right to represent its employees. The ALRB appealed this decision to the California Supreme Court.

ALRB. The ALRB decided in August 2016 that UFCW could invoke mandatory mediation to get a contract at Mushroom Farms Inc.

An ALJ decision found T.T. Miyasaka's policy that requires workers to use arbitration to settle disputes and prohibits them from filing ULP charges with the ALRB was unlawful; Miyasaka hired about 800 workers to produce strawberries around Watsonville. The same ALJ made a similar finding in Premier Raspberries LLC dba Dutra Farms, an 800-employee grower and packer of raspberries and blackberries based in Watsonville. Both Miyasaka and Premier adopted their arbitration policies in 2015 and required workers to sign them.

NLRB. The ALRA requires wall-to-wall bargaining units, so that all workers on a farm are normally in one bargaining unit, both those hired directly and those brought to farms by farm labor contractors. The goal was to simplify bargaining for farm employers by avoiding situations in which year-round workers were represented by one union and seasonal workers by another.

The NLRB in July 2016, in Miller & Anderson, Inc, 364 N.L.R.B. No. 39 (2016) followed the ALRA in allowing "jointly employed employees" to be in a single bargaining unit. Many US firms use staffing or temp agencies to obtain some of their workers, and the NLRB's Miller ruling will allow unions to organize and bargain for both direct hires and temp employees who are under the control of both employers.

The impacts of the ALRA's wall-to-wall standard have been muted by the rise of custom harvesters who bring workers and equipment to farms, make decisions on where and how to harvest, and are generally the sole employers of their employees for labor relations purposes.

The NLRB in August 2015 decided that Browning-Ferris was a joint employer of temp workers brought to its recycling facility by a staffing agency because Browning-Ferris indirectly controlled the employment relationship. 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 hope to attach a rider to the omnibus bill expected to fund the federal government in FY17 that would block the NLRB from enforcing the Browning-Ferris joint employment decision. Meanwhile, some franchisers are reducing the employment-related support they provide to franchisees to avoid joint employment, and some franchisees say they fear losing control over hiring and firing decisions.

The NLRB in a 3-1 decision in August 2016 decided that the 3,000 Columbia University graduate research and teaching assistants were employees under the NLRA and could form unions and negotiate with their employer, reversing a 2004 decision that found TAs and RAs to be primarily students. There are a million graduate students in public universities, where TAs and RAs have had the right to form unions in some states for decades.

US fast food restaurants employ over four million workers, and DOL's WHD conducted over 2,000 investigations of Subway, McDonald's and Dunkin' Donuts restaurants between 2009 and 2016, finding over 18,000 violations of the Fair Labor Standards Act, that is, three out of four restaurants inspected had at least one violation. Average hourly earnings in 2016 were $9, and investigators typically assessed less than $10,000 in back wages due per restaurant outlet.

On August 1, 2016, DOL's WHD and Subway announced a plan to improve compliance with wage and hour laws at Subway's 27,000 franchised restaurants. Other restaurant chains have been wary of signing compliance agreements with DOL for fear of being held to be joint employers with their franchised restaurants by the NLRB under Browning-Ferris. For example, if Subway develops payroll software to detect underpayment of minimum wages, does it become a joint employer with its franchisees?

The Employee Free Choice Act, approved by the House in 2007 but not the Senate, would have required employers to bargain with unions after a majority of workers signed a petition in favor of union representation, that is, employers could not insist on a secret-ballot election. The EFCA would have allowed either unions or employers to request binding arbitration if bargaining did not result in a contract within 90 days. Then-Senator Hillary Clinton (D-NY) supported the EFCA.

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