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October 2002, Volume 8, Number 4

UFW: Mandatory Mediation, ALRB Cases

The UFW, calling binding arbitration "the most important farm labor bill since 1975… [to] finally fulfill the promise of the original 1975 California law establishing the farm workers' right to organize," devoted August-September 2002 to pushing for legislation that would require binding arbitration when a certified farm worker union cannot negotiate an agreement with an employer.

Several bills were introduced, and two, SB 1156 and AB 2596, were signed into law on September 30, 2002. They allow a farmer or union to request the Agricultural Labor Relations Board to impose "mandatory mediation" in cases of stalled negotiations for a first contract. In up to 75 cases involving farms with certified unions, and employing more than 25 workers in one week, a mediator will be able to impose the terms of a collective bargaining agreement after 180 days; mandatory mediation is set to expire January 1, 2008.

The original UFW bill, SB 1736, would have added Section 1164 to the California Labor Code to provide for binding arbitration for a first contract if negotiations stall. Under SB 1736, if a certified union and farm employer could not reach agreement within 90 days, and a mediator was unable to help the parties to reach agreement in another 30 days, either party could have requested the ALRB to appoint an arbitrator, who would hold a hearing and "establish the terms of a collective bargaining agreement and direct specific performance of that agreement."

Binding arbitration would have been the first amendment to the Agricultural Labor Relations Act since 1975. It moved quickly through the Legislature: the California Senate approved SB 1736 on a 21-13 vote in May 2002, and the Assembly approved it on a 49-22 vote in August 2002. However, Governor Gray Davis expressed reservations, widely attributed to strong opposition from growers who made significant campaign contributions to his 2002 re-election campaign.

With Davis widely expected to veto binding arbitration, a last-minute compromise was reached under which unions and employers would bargain for 180 days for a first contract, and then a mediator would try to help the parties reach agreement for another 30 days. If mediation failed, the mediator would, within 21 days, recommend the terms of a collective bargaining agreement to the parties, and provide reasons for his wage recommendations.

Either the employer or the union could petition the ALRB within 10 days to modify the mediator's non-wage recommendations. The ALRB would review the recommendations and objections, and allow the mediator's recommendations to go into effect or modify them. Either side could appeal the collective bargaining agreement imposed on them to the state Court of Appeal or the California Supreme Court.

Davis signed SB 1156 and AB 2596 on September 30, 2002, saying that mandatory mediation offered "a blueprint for addressing the most serious failings in the system when negotiations between growers and farm workers cannot be resolved." UFW President Arturo Rodriguez agreed that mandatory mediation would "definitely … improve people's lives." However, the president of the Western Growers Association said that mandatory mediation was: "patently illegal and potentially destructive to the California farmer," and threatened to challenge the constitutionality of mandatory mediation. Most newspapers agreed that 2002 was "labor's year," as 16 of the 19 California Labor Federation-backed bills were signed into law.

How many farmers are likely to be affected? It depends on the number of farmers with 25 or more workers, the number of elections, and the number of stalled negotiations. EDD reported that there were 14,000 crop employers (NAICS 111) in the third quarter of 2001, and 2,000 had 20 or more employees. There were 3,600 animal production (NAICS 111) employers, including 315 with 20 or more employees, and 3,900 agricultural support employers (NAICS 115), including 1,260 had 20 or more employees, or a total of 3,575 with 20 or more employees. Note that some farmers with fewer than 20 workers may be affected because they have a labor contractor bring workers to their farms, and labor contractors are not considered employers under the ALRA.

How many workers are potentially affected? EDD reported that 78 percent of the 223,000 workers employed by crop employers (NAICS 111) were employed by employers who hired 20 or more workers during the third quarter of 2001, including 30 percent employed by crop employers with 250 or more workers. In "Agriculture and Forestry Support Activities," (NAICS 115), 94 percent of the 193,000 workers were employed by employers who hired 20 or more workers during the third quarter of 2001, including 51 percent who were employed by support employers with 250 or more workers.

Why Binding Arbitration/Mandatory Mediation? SB 1736 Section 1(b) asserted that "extensive use of undocumented workers and farm labor contractors results in workplace injustice, and has greatly weakened the bargaining power of California farm workers since the passage of the Agricultural Labor Relations Act… Binding arbitration will promote comprehensive collective bargaining agreements, and further peace and stability in labor relations in California's most vital industry."

The UFW said that since 1975, it won elections on 428 farms, but negotiated only 185 contracts. In 215 cases, the UFW said no first contract was ever negotiated and the farm continued to operate; the UFW's success in getting first contracts was 46 percent. The UFW says: "Why would a farm worker risk voting for the union when he knows that growers can resist signing a contract for decades?"

The ALRA includes a unique remedy for employer bad-faith bargaining, the make-whole remedy, which allows the ALRB to remedy an employer's failure to bargain in good faith by ordering the employer to pay the wages and benefits lost by workers while the employer violated the ALRA. However, the UFW and the ALRB agree that make-whole is not effective because of the delays inherent in determining whether there was bad faith, then ordering make-whole, and then finding the workers and paying them. During this four- to six-year period, the work force on a farm often changes, and the aggrieved workers cannot be found.

To generate publicity and support for binding arbitration, the UFW retraced the route of earlier UFW marches in a 150-mile, 10-day "March for the Governor's Signature" from Merced to Sacramento along Highway 99. During the march, Governor Davis said: "I want to say is that we owe a great debt of gratitude to the farm workers in this state who put the food on our table working under the most difficult circumstances on the planet. And we all ought to say a little prayer at night to thank them for the extraordinarily difficult work they do day in and day out."

Senate President John Burton (D-SF) in August 2002 said that the governor must make "a choice between poor farmworkers and rich farmers," and predicted that, if the governor vetoes the bill, "it's going to be a political decision that will harm him the rest of his political career, and I think it's going to be a moral decision that could haunt him the rest of his life." Lt. Gov. Cruz Bustamante urged Davis to sign SB 1736, saying "Justice over injustice, people over money. Sign the bill that justice demands! It wouldn't take much, just one stroke of the pen, and the burden of many families would be lightened."

Growers strongly opposed binding arbitration. The Western Growers Association said that SB 1736 "is anti-business. We think it could be unconstitutional and we think it's absolutely unnecessary and it will kill California's No. 1 industry." Rep. George Radanovich, (R-CA) said: "Giving what can only be interpreted as binding arbitration authority to laborers in private, small and family-owned businesses is an attack on the American spirit of private enterprise… family farm owners will face the risk of losing control of their payroll budgets and, in turn, their entire ability to employ workers, run a sustainable business and stimulate the economy."

The Los Angeles Times noted that the UFW was not a major contributor to Governor Davis, but packs a "powerful symbolic punch as the bearer of the banner raised on behalf of California farm workers by the late Cesar Chavez." Binding arbitration was one of 27 labor-supported bills sent to the governor in August 2002; the others included AB 2242, to increase the state's minimum wage with the cost of living, AB 2957, to require more notice of layoffs, and AB 60, which would allow undocumented immigrants to apply for a California driver's license.

In the maneuvering to avoid giving the governor a chance to veto SB 1736 and sign another farm worker bill, the UFW said it would oppose AB 325, which would have outlawed the practice of farmers and labor contractors charging workers fees to cash paychecks and to ride in vans to the fields. Under AB 325, farmers and contractors would have had to inform workers, in writing, that the workers cannot be forced to cash their checks at a particular location or, as a condition of employment, be transported to work for a fee-the penalty for violations was $5,000, and farmers would have been considered jointly liable with contractors if contractors e.g. required rides to work with foremen for a fee. Employers complained that the penalty was too high, noting that failing to provide toilets results in a $750 penalty.

In 2001, after signing a bill requiring farmers to copy the registration forms of the FLCs they use to get workers, and to verify FLC credentials with the state, Governor Gray Davis said: "I will not consider any additional major legislation in this area until these measures are fully implemented and their impacts understood by all of the parties involved in the issue."

Horse Racing. In 2001, AB 471 was enacted that granted backstretch employees working for a licensed trainer or horseman the right to join labor organizations, and authorized the California Horse Racing Board to order the parties to engage in good faith negotiations. If they fail to reach an agreement, the CHRB can order mandatory mediation and, if a bargaining impasse is declared, the CHRB can order binding arbitration, subject to judicial review. The major differences between the backstretch workers' binding arbitration and AB 1736 is that the CHRB may order binding arbitration, while SB 1736 required the ARLB to order binding arbitration.

The CHRB in August 2002 recognized one union (The Jockeys' Guild, primarily so that the Guild may receive certain funding generated by horse racing revenue. As of August 2002, the CHRB had not yet developed regulations to implement the mediation and binding arbitration, and thus had not appointed any arbitrators.

The Los Angeles Times on April 23, 2000 estimated that 4,000 workers, most of them immigrants, work with horses at the state's race tracks, and they experience very uneven and often substandard working conditions. About half of the backstretch workers live at the race track, but the housing provided by the horse-racing industry- usually at no charge- has not been subject to state inspection since 1975. Workers employed at race tracks are not protected by overtime wage requirements; low-wages are attributed to growing competition for gambling dollars from Indian casinos, card clubs and the state lottery.

ALRB Decisions. The budget of the ALRB was reduced by about 10 percent to $4.7 million for 2002-03. The ALRB implemented SB 1198, creating an Agricultural Employee Relief Fund into which monies owed farm workers are deposited. If workers owed money cannot be found, the monies are left in the fund, and paid to workers in cases in which other farm workers eligible for monetary awards can receive payouts from the fund.

In Albert Goyenetche Dairy, 28 ALRB 5, the ALRB certified UFCW Fresh Fruit and Vegetable Workers Union, Local 1096, as bargaining representative for 30 workers after a 15-14 vote in a February 2002 election. The dairy, in Buttonwillow, had 3,600 cows and 4,000 heifers; 12 of the employees were milkers who were paid $2,200 a month.

In Ventura Coastal Corporation, 28 ALRB 6, all 141 of the ballots cast in an April 6, 2002 election in Blythe were challenged because the Regional Director of the ALRB could not determine whether the voters were eligible farm workers. After the election, the Regional Director determined that most of those who voted were eligible farm workers. The employer challenged the Regional Director's determination, arguing that most of the votes were cast by employees of Gilbert Gomez, whom the employer called a custom harvester, the Regional Director argued he was a farm labor contractor. The Board agreed that Gomez was a farm labor contractor, not a custom harvester, and ordered the ballots counted.

The Board examined the contract between Ventura Coastal and Gomez, and found that it provided a rate of $20 a bin to harvest citrus, and provided Gomez with a 45 percent commission for his costs, which included maintaining payroll records and paying taxes. Gomez also rented a forklift to move bins, and was paid $2.50 a bin for forklift costs. The Board emphasized that, under this contract, Ventura Coastal set the workers' wages, $20 a bin, Gomez assumed no risk, and thus Ventura Coastal was the employer.

In Coastal Berry Company, 28 ALRB 7, the Board reconsidered an earlier order, 26 ALRB 3, that ordered Coastal to reinstate eight of 11 strawberry pickers fired after they attacked pro-UFW pickers during a July 1, 1998 protest. Coastal appealed, and the 6th Court of Appeals sent the case back to the ALRB for reconsideration, ordering the ALRB to determine if the activities of the eight were protected concerted activities that passed a four-part test: (1) there must be a work-related complaint or grievance; (2) a specific remedy or result must be sought through protected activities; (3) the concerted activity must further some group interest; and (4) the activity should not be unlawful or otherwise improper (for example, violent, in breach of contract or indefensibly disloyal).

The Board applied this test, and concluded that four of the eight were lawfully fired, and ordered Coastal to reinstate four others with back pay.

In McCaffrey Goldner Roses, 28 ALRB 8, the ALRB found that a worker, Ocampo, was fired in retaliation for engaging in protected concerted activities, complaining on behalf of the crew to supervisor Gallardo about an abusive forewoman, and then not being recalled after a seasonal lay-off. The Board ordered Ocampo rehired with back pay.

Gregg Jones, "A Big Win for Farm Workers," Los Angeles Times, October 1, 2002. Lesli A. Maxwell, "UFW bill creates tension," Fresno Bee, August 24, 2002. Gregg Jones, "Labor Bills Test Davis the Centrist," Los Angeles Times, August 20, 2002. Steven Greenhouse., "Farm Union Bill Holds Peril for California Leader," New York Times, August 9, 2002.