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January 2018, Volume 24, Number 1

ALRB: MMC, Unions

The United Farm Workers, Teamsters and United Food and Commercial Workers may compete to represent cannabis workers in 2018. By some estimates, up to 100,000 workers may be employed in the recreational marijuana industry.

ALRB. The California Supreme Court in November 2017 upheld the state's 2002 Mandatory Mediation and Conciliation (MMC) law and concluded that a union remains certified to represent farm workers until it is decertified.

The Agricultural Labor Relations Act was enacted in 1975 "to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations." Contemporary observers expected the ALRA to usher in an era when most of the state's farms would work on farms with collective bargaining agreements. In fall 1975, there were almost 100 elections a month, and unions won over 95 percent of those whose results were certified.

Election activity slowed in the 1980s and 1990s after internal UFW changes, Republican appointments to the Agricultural Labor Relations Board, and rising unauthorized migration in a restructuring agriculture. Despite a unique make-whole remedy for bad-faith bargaining that requires employers who fail to bargain in good faith to make their employees whole for any wage and benefit losses while the employer failed to bargain as required, the UFW charged that employers were delaying bargaining, discouraging workers from voting for union representation.

The UFW in 2002 persuaded the California Legislature to enact the MMC law to reduce employer-caused delays by ensuring a collective bargaining agreement within a year of a union being certified to represent workers on a farm. After bargaining for six months, unions or employers may request a mediator to help reach an agreement. If mediation fails, the mediator becomes an arbitrator and develops a contract that the ALRB can order the parties to implement.

The expectation was that MMC would unleash a wave of organizing, elections and collective bargaining agreement at farms that never had elections or contracts. Instead, MMC was invoked at so-called "old certifications," cases where a union was certified to represent workers before 2002, the employer committed an unfair labor practice, and a collective bargaining agreement was never signed.

Gerawan was an old certification. The ALRB certified the UFW as the bargaining representative for Gerawan workers in July 1992, but no contract was negotiated during a February 1995 bargaining session, and there were no further negotiations.

The UFW in 2012 requested bargaining and, after several bargaining sessions, the UFW requested mediation. Many of Gerawan's workers objected to UFW representation, pointing out that only a few workers who voted for the UFW in 1990 were still at Gerawan in 2012. They asked the ALRB to supervise an election to de-certify the UFW, which was held in November 2013. However, the ALRB found that Gerawan unlawfully interfered with the decertification election, and the votes were not counted.

Meanwhile, mediator Matt Goldberg developed a Gerawan-UFW contract that the ALRB ordered Gerawan to implement. Gerawan refused and challenged the constitutionality of MMC, arguing that MMC allowed the state to impose different rules on different farms. The 5th District Court of Appeal in May 2015 agreed that MMC was unconstitutional, and also agreed that Gerawan should have been able to challenge UFW's continued right to represent Gerawan employees after almost two decades of no contact.

The California Supreme Court in November 2017 reversed the 5th District Court and upheld: (1) the constitutionality of the MMC law; and (2) the ALRB's finding that a union remains certified to represent farm workers until it is decertified. The Court found that a mediator can take into account the unique circumstances of each farm and variance in wages and benefits by commodity and area, so mediator-imposed contracts do not violate equal protection guarantees.

The UFW said that Gerawan workers are owed $10 million based on the difference between the mediator's contract and the wages and benefits that were paid by Gerawan since 2013. The next steps include a possible Gerawan appeal to the US Supreme Court, efforts to have the votes from the November 2013 decertification election counted, and litigation over any wages and benefits owed to Gerawan workers who employed during the dispute.

In a related case, the California Supreme Court upheld an ALRB decision that Tri-Fanucchi Farms owes make-whole wages to its 35 employees and several hundred seasonal FLC employees for failing to bargain with the UFW, which requested negotiations in 2012. Tri-Fanucchi argued that the UFW abandoned its workers between its certification in 1988 and its request to bargain in 2012.

Unions. Richard Trumka was re-elected president of the AFL-CIO in October 2017. Trumka, who has led the AFL-CIO since 2009, pledged to urge Congress to enact a workers' bill of rights that stresses the need for higher wages and revamped free-trade agreements. Trumka led the United Mine Workers of America before becoming head of the AFL-CIO.

Union membership continues to fall, to 11 percent of workers in 2016, including 6.5 percent in the private sector. The number of strikes has fallen faster than union membership, to 102 in 2015. Analysts cite several reasons for fewer strikes, including fewer choices for consumers who may support the union-called boycotts that accompany strikes and closer union-employer cooperation to keep workers satisfied.

The Trump administration in December 2017 filed a brief in Janus v. AFSCME, agreeing with Janus that public sector unions cannot collect mandatory fees from non-members to administer contracts. Many labor lawyers expect the Supreme Court to deny unions the ability to collect mandatory fees from non-members, because "speech in [public-sector] collective bargaining is necessarily speech about public issues" and thus interferes with worker first-amendment rights. The 1977 Abood decision allows public sector unions to collect "fair share" fees from non-members to cover the cost of bargaining and contract administration.

The NLRB in December 2017 reversed the 2015 Browning-Ferris decision, which held that Browning-Ferris was jointly liable with temp firm Leadpoint Business Services for labor law violations committed by Leadpoint at Browning-Ferris recycling sorting facilities. The NLRB in another case held that businesses with temp-firm employees must exercise "direct and immediate control" to be joint employers liable for labor law violations committed by contractors.

A 2017 New York City law allows non-union worker groups with at least 500 members to require employers to deduct worker dues. Fast Food Justice in January 2018 announced that it had signed up 1,200 of the estimated fast-food workers in New York City, and notified restaurant owners to begin to deduct and remit their members' dues. The National Restaurant Association is challenging the New York City law in court, alleging it is a front for the SEIU; the NRA does not want any worker dues deductions until there is a contract in place.