Laws: October, 2003 - Number #09

The Pacific Legal Foundation sued the Agricultural Labor Relations Board, alleging that mandatory mediation is unconstitutional. A judge ruled that the PLF suit could not go forward until the ALRB approves a mediated contract that can be challenged after the ALRB orders it implemented. The first mediated contract was recommended to the ALRB in September 2003 for the UFCW and Hess Collection Winery in Napa. During mediation in August 2003, Hess said that it was not changing its final offer, and the UFCW then refused to make changes in its demands. One month later, during mandatory mediation, Hess refused to appear, and the mediator adopted the UFCW's recommended contract, which increases the general laborer wage by about 35 percent to at least $10.20 an hour. The UFCW was certified to represent 60 to 65 Hess farm workers in 1999, but there has never been a UFCW-Hess contract. Hess wanted workers to have 60 days to join the union and the UFCW wanted 45 days- the ALRA allows five days. The UFCW wanted progressive discipline; Hess wanted discretion to discipline workers. Hess wanted the contract to include less favorable provisions for, for instance, overtime for irrigators and pay for standby time, than was current practice. The UFCW said that the general laborer wage is $11 an hour in Napa, and demanded a general labor wage of $10.20 an hour effective October 1, 2003. The mediator accepted the UFCW's recommendations, and established an October 2003 to July 2005 contract. Discussions with union and employer representatives suggest that mediation may be difficult. Unions such as the UFW use worker committees in negotiations, which can slow down bargaining because of the need for translation and may make it hard to preserve confidentiality. Many employers do not believe that mandatory mediation is constitutional, and they argue that economic pressures on farmers, as well as an ample supply of labor, make it hard and unnecessary to raise wages. Others note that many farmers consider it a personal affront when "their workers" vote to join a union. A major issue likely to arise in mandatory mediation is access to employer financial information. Many large farming operations are privately held, in part because profits often rise and fall from quarter to quarter, and a producer can lose money in three quarters but still be profitable because of high profits in the fourth quarter. Most growers do not want to allow unions to examine their records but, if they say they cannot afford to pay what the union is demanding, labor law requires them to open their books to the union. If an employer says it can pay what the union demands, but chooses not to, the right of unions to obtain financial information during mediation is unclear. Mandatory mediation was scheduled to sunset on January 1, 2008, and a maximum 75 disputes could be referred for mediation. SB 75, signed into law in October 2003, lifted the sunset clause and removed the cap on the number of cases that can be mediated. Strawberries. Strawberries are planted in elevated rows raised about 14 inches, and harvesters normally push a carrita or small-wheeled device that holds one tray of berries in the 12-inch wide furrow. The picker takes the full tray, which weighs 10 to 12 pounds, to the end of the row, receives credit, and then resumes picking in a new tray. A conveyor belt moving slowly through the field can eliminate the need to carry full trays to the end of the row but may keep pickers bent over more hours each day, increasing the risk of back injuries, as workers fill more trays per hour. Most growers using the conveyor belt have reduced piece-rate wages by 20 percent or more, for example, from $1.50 a tray to $1.20 a tray. When conveyor belts were introduced in lettuce and other vegetables, employers could control the speed of the belt through the field and thus the productivity standard. With conveyor belts, many employers changed from a pure piece rate to an hourly wage with a bonus for workers or crews picking more than a target amount each hour or day. Hand-Weeding. California banned the use of short-handled hoes (el cortito) in 1975 for cutting weeds and thinning crops because the bent position required to use the hoe was found to increase back injuries. However, hand weeding remained permissible, and some employers in strawberries, lettuce, nursery plants and broccoli had workers pull weeds by hand or use a short knife to weed. Worker advocates tried and failed to win legislative approval for bills that would ban hand weeding in 1995 and 2001-02, and asked the California Occupational Safety and Health Standards Board in 2002 to ban hand-weeding by regulation. A.G. Kawamura, who farms about 600 acres in Orange and San Diego Counties says that a ban on hand weeding would put California growers at an "absolute competitive disadvantage." SB 534, which would have banned hand weeding, failed in the Legislature, but SB 796, which allows private attorneys to enforce state labor laws, was approved. The Nisei Farmers League announced in August 2003 that federal Labor Department Wage and Hour inspectors would participate in meetings of the 1,000-grower organization in an effort to reduce labor law violations. Farmer Gary Marchi in Pescadero filed for bankruptcy in April 2002 without notifying his 10 farm workers, and they are owed about $175,000 in back wages. Marchi leased 52 acres of the 4,000-acre Cloverdale Coastal Ranch, now owned by POST, to grow basil and leeks. Rosenberg, Howard R. 2003. Adjusting to Technological Change in Strawberry Harvest Work. ARE Update, Vol.7, No.1, Sept/Oct, 2003. www.agecon.ucdavis.edu/outreach/areupdate.htm