Volume 6, Number 2, Summer-Fall 1997
Volume 6, Number 2, Summer-Fall 1997
The California Agricultural Labor Relations Act is 22 years old this Fall, and it is drawing new looks. Although the law set off a rush of organizing and elections when first put in place, activity under the Act dropped off dramatically after the early years. Of late, however, the ALRA has drawn much greater attention from employers, labor organizations, and rule makers.
For at least the past 10 years employers have been quite focused, understandably, on significant additions to and changes in the body of employment regulation coming at them from various state and federal agencies. They have had to adjust to statutory and case law in such areas as employment eligibility verification, discrimination, pesticide safety, drug testing, record keeping, and discharge. All the while, the ALRA has been in effect, but not until recently has there been much call to examine its provisions.
Against the backdrop of the American Federation of Labor - Congress of Industrial Organizations (AFL-CIO) rededicating itself to union growth, the United Farm Workers (UFW) union has made a return to vigorous field organizing and pursuit of contract negotiations. As broadcast perhaps most widely around the United Parcel Service strike and settlement last summer, organized labor in general has been feeling some oats under new leadership. Labor leaders have seen in the UPS experience a meaning far beyond resumption of package deliveries and brown trucks parked in traffic lanes. They figure the whole of a few successes to be worth much more than the sum of the parts, and the AFL has named among its highest national priorities both the UFW's campaign to organize strawberry workers in California and the UFW/Teamsters' efforts in the Washington apple industry. The affiliation of interests between the AFL and farm worker unions has never been stronger.
Current attention to the ALRA does not result solely from the step-up in union activity. The passage of time has yielded a stock of experience under the Act now available as an empirical basis for assessing rules and procedures the effects of which could only have been postulated when adopted. And time has seen the emergence of a few thorny issues that could not yet have existed 20 years ago. In addition, some of the conditions that gave rise to the ALRA in California have become more common across the nation. Agricultural associations, labor groups, and politicians in other states are remaining alert to the California experiment as they consider their own state laws to address farm labor issues.
ALRA Basics
Whereas most labor laws lay down minimums, maximums, requirements, and prohibitions that set boundaries for specific terms of employment or working conditions (e.g., minimum wages, rest periods, safety training, unemployment and workers' compensation insurance benefits), the ALRA is of a different nature. It prescribes not certain terms but rather the process by which employees and employers can negotiate these terms themselves. In general, the Act protects employees' right to act together to help themselves and to select their own representatives, and it prohibits unfair practices by which employers or unions might deter workers from exercising these rights. Its provisions are similar to those of the National Labor Relations Act (NLRA), passed 40 years earlier to cover most private sector employment, specifically excluding farm work.
California is among only a handful of states that have defined any course for agricultural workers to determine whom, if anyone, they want to represent them in negotiating terms of employment. By enacting the ALRA in 1975, the California legislature filled the legal vacuum in which farm labor organizing had been conducted here. It created an elaborate administrative apparatus to help agricultural workers in a given firm freely choose whether or not to designate a union as their representative; ensure that workers receive information relevant to their choice without coercion, intimidation, or reprisals from either a labor organization (union) or the employer; and resolve disputes that arise in this decision process, in bargaining toward agreement on wages, hours, and working conditions, and in living under a negotiated contract.
The Agricultural Labor Relations Board (ALRB) administers the Act. Its staff serves two key functions: (1) to conduct representation elections, oversee all the activity leading to them, and certify their results; and (2) to investigate charges of unfair labor practice (ULP) that are brought to the agency and pursue remedies for persons found to have been harmed by ULPs. The five-seat Board itself generally serves in an appellate capacity, adjudicating appeals from decisions made by Administrative Law Judges and other staff of the agency. ALRB staff work out of a main office in Sacramento and regional offices in El Centro, Salinas, and Visalia.
By almost any measure, the level of activity before the ALRB is considerably lower than it was in the years immediately following enactment (as it had been similarly for the NLRB). The two accompanying graphs, for example, indicate the decreases in petitions for election and unfair labor practices filed (1997 data incomplete). During 1975-77, unions filed for an average of more than 300 representation elections per year, and in the seven-year period of 1990-96 fewer than 20 per year. The drop in ULP charges (against employers and against unions combined), while also notable, occurred later and has been much less steep, from a yearly average of 782 during 1975-85 to 312 during 1986-96.
A surge of union activity not fully reflected in statistics has been observed on many fronts since 1994. In July that year the UFW won a disputed election at E. & J. Gallo's Sonoma County vineyards. The company appealed - first to the ALRB, and later in Superior Court - that employment at the time was not up to the 50 percent of peak standard required by the Act. Three years later, finding that the appeals and legal challenges had been used to delay bargaining in good faith with employees' chosen representative, the Board ordered Gallo to begin negotiating a retroactive contract that would make whole its employees for the presumably higher wages they would have been receiving since September 1995 under a negotiated contract. At LMD press time, there were indications of Gallo and the UFW nearing agreement on what would be the first contract under the ALRA in a Sonoma County grape operation.
Union negotiations with Bruce Church, Inc., another firm with which it has had well known differences, reached fruition when the long-time adversaries announced their agreement on a contract in May 1996. Less publicized has been a set of UFW elections and negotiations that have brought under union contract more than half the rose industry workers in California. The UFW reports that in all it has won 14 consecutive secret-ballot elections and signed 14 new contracts with employers since April 1994.
In 1995 the UFW launched its highest profile effort in at least a decade. With support from the AFL-CIO, the UFW has been very active in the strawberry industry along California's central coast. Intensifying each year, the efforts on both the union and employer sides have hardly been limited to winning the hearts and minds of workers in the fields through discussions, rallies, and filing of ULP charges. The strawberry campaign has also involved a colorful array of lawsuits, demonstrations, counter demonstrations, news releases and opinion columns, and coast-to-coast informational stops and meetings to enlist support from supermarket chain managers, religious groups, students, and the general public. In May 1997, Driscoll Strawberry Associates took the unusual measure of publishing an open letter "To Those Who Care About Strawberry Workers" on four full newspaper pages, spelling out its views on the myths and realities of strawberry work conditions, and reiterating its members' commitment to abide by any representation decision duly made by the workers themselves through ALRB-supervised procedures. Frequently expressing its own opposition to the UFW's efforts has been the Agricultural Workers Committee, an organization of strawberry workers that the union has charged is sponsored and controlled by growers.
Extraordinary even within this campaign have been events at Gargiulo, Inc., until recently owned by Calgene, a subsidiary of the Monsanto Company. In June 1997, after facing repeated demonstrations and organizing attempts, Monsanto announced the sale of the strawberry firm, one of the largest in the state, to out-of-state investors said to be "union friendly." In the wave of publicity about the transaction were news releases strongly implying that the road had been paved to certification of the UFW and a contract with the former Gargiulo (now B&G Berry Corp.). Monsanto announced that agreements with the UFW and AFL called "for a free and fair union representation election at Gargiulo's former berry operations. . . intended to result in the scheduling of a supervised election consistent with the Agricultural Labor Relations Act. . . ."
These statements prompted a coalition of employer groups, led by Western Growers Association, to cry "foul" in a set of charges against Monsanto, the UFW, and B&G. Papers filed at the ALRB regional office in Salinas alleged that the agreement, the publicity about its intent, and the announcements' omitting mention of workers' right to choose not to be represented constituted an unfair labor practice (ULP).
Alluding to language in the ALRA itself, the grower group claimed that pronouncements made by the employer and the union had been intimidating, restraining, and coercive to workers, thus interfering with the right to free choice. It essentially argued that the company, in cahoots with the union, was conveying to workers that, "if you don't vote for the union, your job could be in jeopardy." Such a message could constitute illegal influence on workers both in the procedural steps prerequisite to an election and in the voting booth, if they ever got that far.
This ironic situation clearly falls in the "man bites dog" category. It is most unusual for an employer to welcome the prospect of workers voting to unionize, no less to face formal charges or wrongdoing for encouraging pro-union votes. Though surely not the purpose of its parties, the case is useful for illustrating a fundamental element of the ALRA that distinguishes the route to representation here from that in other states. Neither public respect and sympathy for farm workers nor pressure on employers can be parlayed into the right to represent workers in California agriculture. No matter how sympathetic the public or an employer may be, a union can obtain the legal right to represent the workforce on a given farm only through a majority vote of workers in an election scheduled, conducted, and certified by the ALRB.
Knowing the Code
One result of the lull in election activity under the ALRA is that most people to whom it applies, particularly workers new to the agricultural workforce and the cohort of farm managers who have not dealt with the Act, do not now understand well what it holds for them and how it is applied. But unfamiliarity with and misconceptions about this law cannot be attributed entirely to lack of direct experience with it.
The ALRA is intricate and always subject to interpretation. Like all laws, what the legislature enacts is not nearly the whole story. As its administering agency, the ALRB is responsible for developing regulations to clarify and operationalize the statute. Rules of application are further molded through the body of case decisions by Investigative Hearing Examiners, Administrative Law Judges, the Board itself, and even appeals courts. These decisions sometimes set precedents that guide subsequent interpretation of the ALRA. Administrative decisions may affect not only the outcomes of immediate organizing efforts and ULP charges but also workers' propensity to exercise provisions of the Act in the future.
Controversy has persisted around parts of the statute itself, Board rule makings, and actual administration in the field. Though generally agreeing that the Act has not fully served its purpose, to ". . . ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations," worker and employer representatives tend to differ, not surprisingly, on the merits of specific provisions and administrative practices. Labor organizers have attributed some disappointing results to unfair adjustments by employers, ineffective administration by ALRB staff, and a labor market glutted with newcomers. Many have seen the ALRB and its top staff since the early 1980s as employer-oriented, in contrast to the initial set of appointees who construed the Act to not only protect but moreover encourage union organization efforts.
California growers, for their part, have felt unfairly burdened and invaded by the Act, and especially by administrative regulations adopted by the initial Board (1975-76). They have been aggrieved perhaps most acutely by the rule, unique to the ALRA among labor relations laws, allowing a union that has filed proper notice to "take access," to enter a grower's property and speak to workers there for certain periods each day, despite the grower's wishes and property ownership. The ALRA statute does not provide for access of non-employee organizers on farms, but its regulations do. Under the NLRA, such access is permitted on a case-by-case basis and only within very narrow circumstances. This difference between the national and state laws alone may be reason enough for employers to try bringing their employee representation cases to the NLRB. With evolution of production technologies, the line between ALRA and NLRA coverage has indeed blurred a bit and the national Board has asserted jurisdiction over workplaces that had been classed as clearly agricultural in the past.
Grower associations and the current ALRB Chairman have called for at once simplifying the regulatory environment and reducing a California competitive disadvantage by (1) amending the NLRA to cover agricultural workers uniformly in all states, or, assuming that opposition from other states precludes such a change, (2) amending the ALRA to make its provisions conform to those of the national law. The California Farm Bureau Federation has long recognized the right of agricultural employees to organize and bargain for their services as well as their right to refrain from these activities. As published in its annual statement of policies, however, it also supports legislation to bring agriculture under the NLRA, and continues to seek changes at the state level that would conform the ALRA to general national standards.
Observing the ALRA in 1997
Together with the Monterey County Cooperative Extension office, the APMP presented a seminar last June to broaden and enhance understanding of the Act among growers, farm labor contractors, field supervisors, human resource managers, workers, employee representatives, and professional service providers. A superb collection of knowledgeable speakers delivered a full payload of facts, hard-earned lessons, advice, opinions, and philosophy relative to the Act.
The program integrated presentation of rules and discussion about their practical application within four major segments, respectively devoted to (1) pre-election organizing activity, (2) employee representation elections, (3) the collective bargaining process, and (4) unfair labor practices. In each segment, the rules were explained by Paul Richardson, ALRB General Counsel, and Freddie Capuyan, ALRB Regional Director (Salinas office). Realities and fine points of practical application were discussed by a panel of employer and union legal representatives, sagely and entertainingly moderated by James "Geraldo" Bogart from the Grower-Shipper Vegetable Association of Central California, wearing his finest neutral-for-a-day garb. Practitioners on the panel were: Mike Johnston, Teamsters Warehousemen and Helpers Union, Local 890; Mary Mecartney, United Farm Workers; Richard Quandt, Grower-Shipper Vegetable Association of Santa Barbara and San Luis Obispo Counties; and James Sullivan, of the Gilles, Minor & Sullivan law firm.
Michael Stoker, Chairman of the ALRB, provided his personal overview of the "Past, Present, and Future of the ALRA," and Charlie Atilano, Deputy Labor Commissioner, California Department of Industrial Relations, gave an update on other significant employment laws. As a former member of the ALRB staff, Mr. Atilano also contributed to the practitioner panel discussions. All speakers fielded provocative questions from the floor that extended them well beyond their prepared remarks.
If a single line could capture the essence of the entire day, it was one of Bogart's: "Reasonable minds can differ with respect to the application of this law." Opposing views were aired and clarification provided on such topics as: the need for access to organize workers, proper use of access privileges, distinctions between farm labor contractors and custom harvesters, whom to include on pre-petition lists of employees, determination of peak employment, timing and conduct of elections, the unlimited duty to bargain after a union is certified, mandatory and prohibited subjects for bargaining, the meaning of "good faith," forms of interference with and coercion of workers, and procedures for filing and investigating unfair practice charges.
A consensus among presenters and other seminar attendees alike was that the ALRA carries both rights and responsibilities for employers, labor organizations, and workers - along with innumerable subtleties and fine points. Those who want to take advantage of the rights and minimize the costs of meeting the responsibilities are behooved to learn about the law well in advance of facing a situation to which it pertains.
In the sidebar that accompanies this article is a small sampling of the seminar content (see "Heard at the Seminar"). Presenters' comments will be much more fully featured in an educational videotape currently under development. Availability will be announced on the APMP website and in a future issue of LMD.
Toward Tweaking the Rules
A forum for those seeking change is at hand. In accord with an Executive Order from the Governor to all state departments last Spring, the ALRB has commenced a review of all its existing administrative regulations. The Board will be assessing the necessity and cost effectiveness of each regulation, considering alternative approaches, and possibly recommending legislation as well as regulatory changes.
As LMD goes to press, the Board is conducting preliminary hearings around the state (see "ALRB Invites Public Comment on ALRA Regulations") to receive public testimony that it will weigh in crafting an agenda for official revision proposals next year. Open sessions are scheduled for Indio, Ventura, Monterey, Tulare, and Sacramento. Even before the hearings began, the Board had received from the Agricultural Workers Committee a petition for changes in regulations. The petition seeks elimination of, or changes to, the rules concerning access. Changes it suggests are to allow access for only 1 hour per day (rather than the current maximum of 3) before or after work, and for only one 30-day period per year (rather than the four now permitted). In addition, the petition asks the Board to raise from 10 percent to 50 percent the portion of a current workforce whose signatures are required to support a Notice of Intent to Organize (NO). Once an NO is properly filed, the employer is obligated to provide to the union a list of all employees' names and addresses.
Meanwhile, major efforts by the UFW and Teamsters unions to organize apple workers are under way in Washington (see articles on page 4). While the packing houses on which the Teamsters are focusing appear to fall under NLRA coverage, the UFW's attempts with orchard workers are proceeding absent the structure of any labor relations law. Enactment of a Washington state law that would cover farm workers was seriously considered in 1993, but the development of legislation was suspended when grower and worker advocates could not agree on key provisions.
In 1991, a Governor-appointed task force in New York strongly recommended altering a state labor regulations law to include farm workers. Just this year the Maine legislature took action to cover employees in selected agricultural enterprises. While drives to bring agriculture nationally under the NLRB are not likely to go far, we can certainly expect that attempts to regulate farm worker organizing in individual states will continue to emerge and to use the California experience as a primary reference.
The new California rule making may significantly alter the structure
of agricultural labor relations here and elsewhere for many years to come.
A new section in the APMP web site includes pages of educational material on the ALRA, and news releases and reports about current activity under or related to the Act. Find it at http://are.berkeley.edu/APMP/alra/alrabase.html.