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October 2020, Volume 26, Number 4

ALRB, DOL

ALRB. The ALRB’s report for 2018-19 noted that the Board issued 11 decisions in the fiscal year, including three involving Gerawan, two involving Premiere Raspberries, and two involving the UFW. The General Counsel received 103 ULP charges in 2018-19, and issued 23 complaints based on 32 charges, including some filed earlier. Unions filed 24 notices to take access to farm workers, but they filed no petitions for elections.

The California Court of Appeals, Fifth District, upheld an ALRB decision in July 2020 that required Gerawan Farming to provide make whole payments to its employees for failing to bargain in good faith during five months of 2013. The ALRB ordered mandatory mediation in April 2013, and concluded that Gerawan failed to provide the UFW with information and refused to include in the bargaining unit workers brought to its farms by farm labor contractors. The UFW was decertified at Gerawan in a November 5, 2013 election.

Gerawan classifies its workers as cultural, including those who work year round as equipment operators and irrigators, and crew workers who prune, thin, and harvest. Up to 1,500 of the 5,000 peak employees were brought to Gerawan by FLCs in 2013.

The court’s decision reviewed the party’s bargaining postures in 2013. The UFW wanted an agency shop, meaning that all Gerawan workers must join the union or pay agency dues to keep their jobs, while Gerawan wanted its employees to decide whether they wanted to join the UFW or pay fees for representation. The ALJ and the Board found that Gerawan’s bargaining positions were indicators of bad-faith bargaining because they were unacceptable to the UFW.

DOL. DOL released new projections of the US labor force to 2029 in September 2020, highlighting the slower-growing and aging US labor force. Employment of 163 million in 2019 is projected to increase to 169 million in 2029, with all of the employment growth in services, including over half of the six million employment increase in health care and social assistance services.

Agriculture accounted for 1.4 percent of total employment in 2019, including an average of 740,000 self-employed persons and an average 1.6 million wage and salary workers, making hired workers 68 percent of average agricultural employment.

The average employment of self-employed farmers and family members declined by 12 percent between 2009 and 2019, and is projected to decline another 10 percent by 2029. By contrast, average wage and salary employment in agriculture rose 33 percent between 2009 and 2019, and is projected to rise an additional two percent by 2029, so that hired workers would account for 71 percent of average agricultural employment in 2029. Agricultural employment includes forestry, fishing, and logging, which collectively account for less than five percent of agricultural employment.

DOL narrowed the definition of joint employment under the Fair Labor Standards Act under regulations issued in January 2020, but a federal judge in September 2020 blocked their implementation because DOL violated the Administrative Procedure Act. Worker advocates have been trying to expand the definition of joint employment in order to hold those who benefit from workers supplied by contractors and staffing agencies liable for violations of the FLSA committed by contractors and staffing agencies.

 

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