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July 2021, Volume 27, Number 3

UFW, ALRB, Unions

The UFW was decertified at Foster Farms poultry processing plants in Livingston, California in an NLRB-supervised election by a vote of 560-101 in January 2021. There were over 400 Covid cases at the Foster plants, and the UFW sued to improve compliance with safety protocols.

The UFW displaced the International Association of Machinists at Foster in 2016 and negotiated a new contract in spring 2020. The UFW charged that Foster did not implement the contract in June 2020, but the NLRB refused to intervene.

Over half of the UFW’s 2019 revenue was from non-dues income such as contributions and donations. The UFW’s Juan de la Cruz Pension Plan paid $8 million in benefits in 2018 is considered by DOL to be in “critical status” with too few assets to pay promised benefits.

The Robert F. Kennedy health insurance plan limits annual benefits to $70,000 per person, which violates the 2010 Affordable Care Act’s prohibition on annual limits on benefit payments. The UFW said that if the plan failed, covered workers would be forced onto Medi-Cal, prompting the state to provide a subsidy since 2014 of up to $3 million in 2021. The state RFK subsidy, which is scheduled to continue through at least 2026, may have helped the UFW to displace the UFCW at some farms and nurseries in Ventura county in 2016.

The UFW reported 6,240 active and 1,200 retired members in its 2019 LM-2 report. DOL requires unions to report their end of year membership, and the UFW’s membership fell from 27,000 to 5,000 in 2001 and has since fluctuated between 5,000 and 10,000. The UFW was decertified at Gerawan Farms by a 1,098-197 vote in 2013.

ALRB. The US Supreme Court in a 6-3 decision in June 2021 found that the ALRB’s 1975 access regulation was an unlawful physical taking of private property. The NLRB’s access regulation allows nonfarm union organizers to enter private property and talk to workers when there is no other way to reach them, as when the workers live on a ship or on company property.

The ALRB in 1975 cited low levels of education and English among farm workers, and the fact that some workers live on farms, to presume that union organizers would request and the ALRB would grant union organizers limited and temporary access to workers on farms. Cedar Point Nursery and Fowler Packing Company argued that automatic union organizer access was an unlawful physical taking of their private property even if it was limited and temporary, and the US Supreme Court agreed.

The dissent argued that the access rule was aimed at achieving labor peace and should be permitted under the US constitution. The dissent warned that property owners may similarly argue that inspections to determine the status of wetlands or endangered species could be deemed unlawful physical takings.

The practical impact of the Supreme Court decision is limited because there is relatively little union organizing. If unions want to take access in the future, they will have to show that they have no other practical means to communicate with workers. There may be more disputes over access in the future if the ALRB grants access to organizers and employers counter that unions have other ways to communicate with their employees.

AB 616 would allow the ALRB to recognize a union on the basis of a card check in addition to winning a secret ballot election. The ALRA in 1975 required secret-ballot elections to avoid a repeat of some growers recognizing the Teamsters as the representative of their workers without an election. The UFW has been pushing for a card-check procedure to represent farm workers for a decade. The Legislature approved card-check bills several times, but they were vetoed by the governor.

Unions. The Protecting the Right to Organize Act (PRO) was approved by the House on a 225-206 vote in March 2021.

The almost 6,000 employees of an Amazon warehouse in Bessemer, Alabama voted 1,798 to 738 against representation by the Retail, Wholesale and Department Store Union in a February-March 2021 mail ballot. Amazon’s $15 minimum wage is twice the state’s $7.25 an hour minimum wage, and Amazon offers its employees’ health and other benefits. The RDSWU alleged that Amazon unlawfully interfered with the vote, while others said that the RDSWU relied too much on phone calls to workers rather than in-person meetings.

Unions have not been successful organizing workers employed by Amazon and Walmart, the two largest private US employers. Unions represent six percent of private sector US workers, down from 24 percent in 1973. Some 40 percent of employees of federal, state and local governments are union members.

Jobs in Amazon warehouses are akin to factory jobs in the sense that workers often interact with robots rather than other employees. Their activities are monitored closely, just as assembly line workers are tied to one spot on the production line and monitored.

California’s State Building and Construction Trades Council, which represents 450,000 construction workers, routinely blocks affordable housing bills in the state legislature if they do not require workers to be graduates of apprenticeship programs, most of which are operated by unions. The Council wants affordable housing projects that receive state subsidies or easier approval to require that the workers who are employed to build them are “skilled and trained” graduates of union training programs.

DOL. David Weil, who was administrator of the Wage and Hour Division between 2014 and 2017, was named to return to WHD in April 2021. Weil examined fissured workplaces, emphasizing that some businesses shift risks to workers by classifying them as independent contractors. WHD sued some businesses that classified workers as independent contractors, arguing that the workers were employees who were entitled to minimum wages and overtime pay.

WHD also tried to make master franchisors responsible for the labor violations of their franchisees. Weil argued in 2019 that Uber and Lyft drivers should be classified as employees, and DOL Secretary Marty Walsh repeated the case for considering gig workers to be employees in April 2021. California voters approved Prop 22 in November 2020 that continues to classify gig workers as independent contractors. Prop 22 overturned AB 5, a state law that would have made almost all gig workers employees.

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