Laws: April, 2003 - Number #6

The ALRB on March 4, 2003 adopted draft regulations to implement mandatory mediation. For unions certified to represent at least 25 workers on a farm after January 1, 2003, the employer and union must bargain for at least 180 days before one party can file a declaration of impasse and request that the ALRB appoint a mediator; the union and employer split the costs of mediation. The other party may, within five days, file a counter-declaration saying mediation is not needed.

The ALRB may appoint a mediator, who has 30 days to help the parties reach agreement. The mediator sets a time and place for mediation, and the parties provide lists of witnesses and other materials to make their case to the mediator. The first mediation session begins the 30-day clock in which the mediator is to help the parties reach agreement. Mediation sessions are reported by a court reporter, and the mediator must cite the record to support his/her proposed agreement if mediation fails to produce an agreement.

Mediators must base their proposed contracts on the parties' declarations, employer finances (employers must open their books if they say they cannot afford the union's demands), comparisons of wages and benefits in collective bargaining agreements covering similar agricultural operations with similar labor requirements, "considering the size of the employer, the skills, experience, and training required of the employees, as well as the difficulty and nature of the work," and the cost of living.

The first mediation cases are expected after July 1, 2003, and mandatory mediation is scheduled to sunset on December 31, 2007. In cases where growers are refusing to bargain so that they can challenge the results of an election, the board will decide on a case-by-case basis whether to order mediation before the election dispute is resolved.

In February 2003, farm employers challenged the constitutionality of the new mandatory mediation law. The suit, filed by the Pacific Legal Foundation, one of whose vice presidents is David Stirling, general counsel of the Agricultural Labor Relations Board from 1983 to 1989, alleges that mandatory mediation "strips the parties of their fundamental right to collectively bargain without government interference."

The plaintiffs in the suit included most of the state's major agricultural organizations as well as Excelsior Farming, a farm where the UFW was certified to bargain for workers but does not have a contract. Excelsior was found to have committed unfair labor practices, and the UFW on February 7, 2003 demanded that Excelsior begin to bargain. If a union was certified to represent farm workers before 2003, there was never an agreement negotiated, and the employer committed an unfair labor practice, the union can request mandatory mediation 90 days after a renewed request for bargaining, that is, May 7, 2003.

Additional legislation is pending. SB 75, by Senate Leader John Burton, would require that farms on which the ALRB certified a union to represent farm workers, but where there is no contract, be listed on the ALRB web site.

Pictsweet Mushroom Farms. The ALRB, in a March 2003 decision (29 ALRB 1) upheld an administrative law judge decision of May 2002 that found Pictsweet failed to bargain in good faith with the UFW and interfered in a decertification effort by offering a better job to a worker if he signed the decertification petition.

The ALRB concluded that Pictsweet also failed to notify and offer to bargain with the UFW over a decision not to grant a pay raise in 2000, after providing pay increases in 1992, 1994, 1996 and 1998. Pictsweet unilaterally laid off workers in 2000, and failed to provide the UFW with sufficient information on its profit-sharing plan so the UFW could prepare to bargain over it. The ALRB also found Pictsweet violated the ALRA by stating in a company manual that workers should not seek "third-party" or union representation.

The UFW won an election at the mushroom facility in 1975, when it was owned by West Foods. Pictsweet bought the bankrupt facility in 1989, and the UFW requested negotiations for a new contract in December 1999. Negotiations began in 2000, and after five meetings in the first half of 2000, the UFW called for a boycott of Pictsweet mushrooms. Several supermarket chains stopped buying Pictsweet mushrooms, and Pictsweet laid off 10 of 365 workers on September 5, 2000. The ALRB found the layoffs to be an unlawful unilateral change.

The ALRB discredited Pictsweet's defenses, including the defense that, since the UFW did not request bargaining between 1989 and 1999, it had abandoned Pictsweet workers. The UFW is likely to invoke mandatory mediation at Pictsweet in its first test of the new law.

The ALRB issued several other decisions. In 28 ALRB 9, the ALRB certified the UFW as the representative of workers at Desert Spring Growers after a November 1, 2002 election won by the UFW 29-26. In 29 ALRB 2, the ALRB ordered Allstar Seed Company to reinstate a worker who was fired in November 2002; Allstar did not respond to the ALRB's complaint.

Travel Time. Some 37 workers employed by artichoke operations Sea Mist Farms and Sea Breeze Harvesting, both part of Ocean Mist, received $181,000, about $15,000 each in back wages for time they spent traveling to and from the fields in company-owned vehicles. For four years the workers were required to report to a central station to board company-owned vehicles and were not paid for travel time. In 2000, the California Supreme Court found that compulsory travel time in company buses to the fields was compensable as "hours worked." (Morrillion v. Royal Packing Co).

Farm worker advocates called for Cal/OSHA to ban hand weeding in April 2003. Since 1975, the short-handled hoe has been outlawed, but hand weeding is allowed. The advocates want to ban tools that require stooping and prohibit most hand weeding.

The California Industrial Welfare Commission on a 3-2 vote rejected a proposal to raise the minimum wage from $6.75 to $7 an hour in 2003 and $8 an hour in 2004. SB 57 would increase the state's minimum wage, and automatically raise it with inflation.

Unions. The US had 16.1 million union members in 2002. The AFL.-CIO's 65 member unions reported organizing 520,000 workers in 2002, led by the 135,000 organized by the Service Employees International Union, for a total 13.2 million members, only slightly more than the AFL-CIO's 12.6 million members in 1955, the year the AFL-CIO was formed and the labor force was about 65 million.

The US Department of Labor's Employment Standards Administration in December 2002 proposed rules that would require US unions to itemize expenditures on politics, lobbying, organizing and strike benefits. The Labor-Management Reporting and Disclosure Act of 1959 requires unions to report their finances to DOL, and DOL said it was updating LMRDA regulations.

During 2002, DOL's ESA closed 2,177 cases involving underpayment of wages to farm workers, and collected about $2.1 million in back wages owed to farm workers.