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October 2022, Volume 28, Number 4

UFW, ALRB, NLRB

About 25 UFW supporters marched 355 miles from Delano to Sacramento over 24 days in August 2022 to encourage Governor Newsom to sign AB 2183, the Agricultural Labor Relations Voting Choice Act. The UFW solicited donations for what it said was a $130,000 march to persuade Governor Newsom to sign AB 2183.

AB 2183 would allow unions to be certified to represent California farm workers without a secret ballot or polling place election if a majority of employees signed union authorization cards collected over one year, the card-check election procedure. This reverses the goal of UFW founder Cesar Chavez, who insisted that the state conduct in-person secret ballot elections to determine if farm workers want to be represented by a union to avoid having growers sign contracts with the Teamsters union without elections.

The UFW sought card-check after losing an election at Giumarra Vineyards on September 1, 2005, when table grape workers voted 1,121 to 1,246 or 47-53 percent against the UFW. The UFW was expecting to win because it had signed cards from over 2,000 Giumarra workers, but some of these workers voted for no union. The UFW had a contract with Giumarra from 1970 to 1973, and Giumarra workers voted against the UFW in an ALRB-supervised election in 1977.

Previous card-check bills approved by the Legislature were vetoed by governors in 2010, 2011, and 2021. President Biden urged Newsom to sign AB 2183 saying “In the state with the largest population of farmworkers, the least we owe them is an easier path to make a free and fair choice to organize a union.” Newsom responded: “Governor Brown vetoed that bill, I vetoed that bill.”

AB 2183 would allow the ALRB to fine employers up to $10,000 if they failed to provide a list of their current employees with street addresses and contact information after a union files a petition that shows it has at least 10 percent support among employees. The ALRB would give the employee list to the union trying to organize workers, and employers could also face fines for other violations of the ALRA. Employers who appeal ALRB orders to the courts would have to post bonds for the amounts sought by the ALRB.

The UFW, which left the California Labor Federation in 2006, rejoined in July 2022 when ex-Assembly Rep Lorena Gonzalez became the CLF leader. The CLF has 1,200 member unions with 2.1 million members; the UFW is one of the smallest unions in the CLF with fewer than 7,000 members.

As UFW marchers reached Sacramento, AB 2183 was amended to allow agricultural employers at the end of each year to decide whether to agree to a labor peace compact for the following year that would give unions access to workers on their farms, thereby negating the 2021 USSC Cedar Point decision that limited the access of union organizers to workers on farms. Employers who make labor peace agreements must remain neutral during the campaign by not holding captive audience meetings, and workers could vote by mail to decide if they want a union to represent them.

If farm employers do not agree to labor peace agreements, AB 2183 would allow unions to organize workers via card check, meaning that unions would have 12 months to accumulate enough signatures to win union recognition. Union organizers could complete card-check ballots requesting union representation, but workers would have to sign them.

Under current procedures, secret-ballot elections are usually held on the employer’s property after unions obtain signatures from at least 50 percent of workers when employment is at least 50 percent of peak employment.

Cannabis farms must sign labor peace agreements with unions after July 1, 2024 if they have 10 or more employees as a condition of receiving a license from the Department of Cannabis Control. The ALRB can investigate to determine if the unions are genuine.

ALRB. The ALRB in July 2022 for the first time imposed civil money penalties on Cinagro Farms for unlawfully mis-classifying six farm workers as independent contractors and firing them for complaining about improper payroll stubs. The Cinagro case is the first time that the ALRB imposed CMPs on an employer under Labor Code 226.8, which allows CMPs of $5,000 to $15,000 for willful mis-classification of employees.

Cinagro admitted that it mis-classified the workers to save payroll taxes and terminated the crew that complained. The ALRB found that the mis-classification was a separate violation from the unlawful firing. As independent contractors, Cinagro’s employees are not eligible for work-related benefits.

Cinagro argued that, except for not reporting and paying taxes on worker wages, it complied with applicable labor laws, including providing workers with tools and satisfying Cal-OSHA requirements. Cinagro plans to appeal, arguing that the ALRB is not empowered to levy CMPs for worker mis-classification. Cinagro argues that the ALRB is empowered only to restore the economic status quo of workers adversely affected by the employer unfair labor practices defined in the ALRA.

The ALRB in July 2022 won $6,687 in back wages for four workers fired by Seventh Tree Farms. The four alleged that Seventh Tree fired them after they complained of unpaid work time and poor sanitation; Seventh Tree offered to reinstate the workers.

Unions. Employees at Amazon, Starbucks and other large firms are organizing, often via new worker organizations that are sometimes supported by extant unions. The Amazon Labor Union, which won one of two elections to represent workers at Staten Island warehouses, charged that Amazon discriminated against union supporters who advocated for the ALU in non-work areas. The GC filed a complaint against Amazon in September 2022.

Between December 2021 and August 2022, employees at over 200 of the 9,000 Starbucks outlets voted for unions; in some Starbucks outlets, college graduates became employees in order to organize workers. Workers at 37 Starbucks outlets voted against unions.

Historians note that unionization often proceeds in waves, with success in one sector prompting organizing in another, and that workers feel empowered to vote for unions when jobs are plentiful.

The last two presidents of the United Auto Workers were convicted of embezzling member dues; current President Ray Curry will be the first to be tested by a direct vote of the 400,000 members and 600,000 retirees rather than elected by delegates from local unions. Contenders for UAW president want the major auto makers to restore COLA provisions in union contracts and to reduce the wage and pension gaps between new hires and experienced workers.

UAW workers hired before the 2008-09 recession earn over $30 an hour and, with extensive benefits, cost employers over $50 an hour. Those employed at GM received over $10,000 each in profit sharing in 2021.

The NLRB, which enforces labor relations laws in the private nonfarm economy, has a budget of $275 million and 1,200 employees, including 30 ALJs who issue about 200 decisions a year. Some 16,000 to 20,000 ULPs are filed each year, and a quarter go to complaint, meaning the NLRB’s General Counsel is prepared to pursue the charge filed by workers, unions, or employers in a trial before the ALJ. However, most ULP complaints are settled without trials.

The five member NLRB issues about 250 decisions a year, and a quarter are appealed to US federal court of appeals. The NLRB wins about 80 percent of the appeals court cases.

General Counsel Jennifer Abruzzo is taking a more aggressive stance toward employers who violate labor laws, seeking fuller compensation when workers are fired unlawfully. Abruzzo asked the NLRB to overturn its 1970 Ex-Cell-O decision that found employers could not be required to make their employees whole when they failed to bargain in good faith.

Abruzzo wants the NLRB to ban captive audience speeches, which employers call before union elections to urge workers to vote no on union representation. Captive audience speeches were permitted by the USSC in the 1956 Babcock and Wilcox case.


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