DHS Proposes Rule to Enhance Worker Protections in H-2 Visa Programs

September 20th, 2023

The Department of Homeland Security (DHS) has unveiled a proposed rule that aims to modernize the H -2A agricultural worker program and the H-2B nonagricultural worker program. The proposed rule, announced on September 18, 2023, is designed to bolster worker protections and streamline various program processes.  The announcement follows on the heels of the publication last week by the U.S. Department of Labor of a proposed rule to bolster protections for H-2A farmworkers.

DHS’s proposed rule would grant whistleblower protections to H-2 workers, clarify and enforce prohibitions on employers collecting certain fees from H-2 workers, and introduce grace periods for H-2 workers seeking new employment or immigration status.

As a benefit to employers, the rule would make H-2 portability permanent, allowing all employers (not just those enrolled in the E-Verify system) facing worker shortages to hire H-2 workers already lawfully in the United States while their petitions are pending. Currently, only those employers enrolled in E-Verify may hire H-2 workers as soon as a petition is filed. Others must wait for the petition to be adjudicated.

The 60-day public comment period following the publication of the Notice of Proposed Rulemaking in the Federal Register provides an opportunity for stakeholders to contribute their perspectives on these proposed changes. Western Growers and allied organizations will be submitting comments.

Western Grower & Shipper Magazine September/October Digital Edition is Available Now

September 22nd, 2023

The September/October digital issue of the Western Grower & Shipper Magazine is available for online viewing here.

The feature article “John D’Arrigo: Celebrating the Recipient of WG’s 2023 Award of Honor” lays out John D’Arrigo’s incredible individual legacy, carved out in the framework of a multi-generational operation through effort, ingenuity and mastery.

President & CEO Dave Puglia shares his thoughts on our industry’s advancements in the ability to educate and inform the public on the intricacies of agriculture in his article “Telling Our Story.”

Other articles include “Sustainable Pest Management is Here. What’s Next?” “What Human Resource Leaders in Agriculture Need to Know About the Coming Wave of Medicaid Disenrollments,” “Innovation Funnels” and more.

Find the full digital edition of the September/October issue here.

The Union Has Submitted Proof of Majority Support (Card Check). What Do You Do?

September 1st, 2023

When Gov. Gavin Newsom signed AB 113 into law on May 15, 2023, AB 2183 was immediately amended, and the new law went into effect. Gone is the “Labor Peace Compact” and the promise of mail-in ballot elections—a Hobson’s choice no employer signed up for. It retains the card check provisions under the new moniker— “Majority Support Petition.” Untouched are the onerous penalties of $10,000 for each unfair labor practices charge and up to $25,000 for cases involving retaliation or discrimination. The bond requirements, the presumption that any adverse employment action taken against an employee was retaliatory, which can only be overcome by “clear, convincing and overwhelming” evidence, and personal liability for directors and officers of the employer are still in there. So, what happens if the union presents a Majority Support Petition to the Agricultural Labor Relations Board (ALRB)?  You better find out now, because you will have only 48 hours to respond.

48 Hours…Starting Now!

Labor Code Section 1156.37 outlines the obligations of employers after receiving a Majority Support Petition from a qualified labor organization seeking to represent a group of agricultural employees, called a bargaining unit. Within 48 hours of being served with the petition, the employer must provide a comprehensive and accurate list of currently employed employees in the bargaining unit. The list should include the full names, current street addresses, telephone numbers, job classifications and crew or department of each employee. Additionally, the employer must organize this information into separate columns, both in hard copy and electronic format, and submit it to the labor board and the petitioning labor organization. Employers should not wait until they are served with a Majority Support Petition to gather and organize this information. Agricultural employers should be gathering and updating their employees’ contact information on a regular basis, at least seasonally. If the employee does not have a regular current street address, they should describe where they are residing with reasonable accuracy.

Defining the Bargaining Unit

The crucial question that arises in this context is what is the “bargaining unit”? The answer is not straightforward. When a union files a majority support petition, it must describe the bargaining unit it seeks to represent. This description may or may not be limited to harvest crew workers or a particular location, as unions can choose to define the unit based on their strategic considerations. The larger the bargaining unit, the more challenging it is for the union to obtain majority support, which may lead the union to limit the unit to harvest workers or a single location.

Eligibility of Employees in the Bargaining Unit

Not all employees fall within the scope of the petition for representation. Only “agricultural employees” are eligible to be represented under the Agricultural Labor Relations Act (ALRA). The ALRA defines “agricultural employee” as an individual engaged in agriculture, and it excludes employees covered by the National Labor Relations Board (NLRB)—which includes private employees not involved in “agriculture.”

The definition of “agriculture” under the ALRA includes various agricultural and horticultural activities, livestock and poultry raising, forestry or lumbering operations related to farming and more. Based on this definition, clerical and management staff are generally excluded from the bargaining unit. However, certain positions, such as cooler workers, crew foremen, quality control, sanitization and food safety personnel, may or may not be considered agricultural employees, depending on their specific duties and authority.

Exclusions from the Bargaining Unit

Certain categories of employees are ineligible to be represented by the union. These include supervisors with actual supervisorial authority (e.g., the power to hire, fire, impose discipline), guards, managerial employees, family members of the employer and substantial stockholders in closely held corporations.

Understanding the Regulations

The ALRB’s regulatory framework complements the Labor Code provisions and provides further guidance on the certification process and related matters. AB 113 regulations have been proposed but not yet implemented. Those interested in exploring the comprehensive regulatory scheme can find it on the ALRB website.

Conclusion

Labor Code Section 1156.37 outlines the employer’s responsibilities in providing to the union employee information during the certification process. Employers should be gathering and organizing their employees’ information now, including from their farm labor contractors, and not wait until served with a petition. As we anticipate unions taking advantage of their long sought-after new weapon—card check—it is essential to ensure management’s compliance with the ALRA in order to avoid onerous penalties. If you do get served with a Majority Support Petition, avoid taking adverse action against any employees without seeking legal advice. And don’t hesitate to contact Western Growers or your labor attorney immediately, because the 48-hour clock is ticking, and you want to give your counsel maximum time to assist in the process.

John D’Arrigo: Celebrating the Recipient of WG’s 2023 Award of Honor

September 1st, 2023

Creating an individual legacy within the framework of a multi-generational operation takes effort, ingenuity and mastery. Managing to create something new while upholding the value of what has been done before can only be done with precision and intention.

John D’Arrigo learned at a young age that there are lessons in the work. As one of six kids growing up on a second-generation farm, John realized that while the necessities were always there, satiating wants came from work. Hard work. “Back when I grew up, everybody had to have a Schwinn 10-speed bicycle.” To get that Schwinn, John was given an objective that would be the foundation for everything. His father, Andy D’Arrigo, said to him, “Well, go earn it.” He did. And then someone stole it. Andy had another lesson at the ready. He said, “Let me teach you about insurance.”

As the years progressed, John continued to work in the family business. “Every summer, my dad had me working on the farm,” John said. “I worked in packing, rode the bus to work, cut and loaded celery and bunched onions. I did all of those jobs. I guess he was trying to figure out what I was made of and to teach a strong work ethic and what these people go through should I choose this as a career…He was a great teacher in all of those aspects, both my mother and my father, of just what it takes to make things work, make some money, work hard for it, feel good about it, see who you are as a person and can you stand it.”

Even with his contribution to the business in his youth, John’s involvement in terms of a career in the organization wasn’t a given. When John set out to college, he didn’t go with an idea of creating a legacy in agriculture. He went to college to be a dentist. It was a dentist who steered John back to the family business. “He said to me, ‘Are you crazy? You’re going to be stuck with me in this little, tiny office for the rest of your life and you’ve got this massive farming acreage with career paths everywhere?’” By the time John graduated from UC Davis in 1980, he had come to fully appreciate how special his family’s business was. As he got off the commencement stage, his father said, “I’ll see you on Monday morning.”

Monday morning started his master class in business as he worked in every different department within the company. It took years of working in different specialties with different groups within the organization to learn how the decades-old company worked on a cellular level.

In 1923, Andrea and Stefano D’Arrigo, two brothers from Messina, Sicily, founded D’Arrigo Brothers. Though the brothers started their operations in Boston, they expanded to the Salinas Valley in 1925. Andy Boy, with its now-iconic pink label, came two years later in 1927 to be the first branded fresh vegetable.

The kind of adaptive thinking and innovative creativity that started with Andrea and Stefano continues today at D’Arrigo with John. After experiencing the company at every level, John’s goal became clearer. When discussing that time, John recalled thinking, “I am going to grow this company… I studied why third-generation companies fail all over the country. I studied this for a while. Why did they fail? What happens? You have the entrepreneurs that really started, the innovators. Then you have the second generation, the builders. And then what happens with the third generation? A lot of them become inactive…I said, ‘That’s not going to be this.’”

On Feb. 1, 1992, Andy D’Arrigo, on his birthday, handed the company over to John with three words: “You earned it.”

At 33 years old, John put the pressure on himself to figure out what kind of company he wanted to stand at the helm of, and with a sentiment that would go on to motivate everything after, he declared that his and the company’s motto would be family first. “This is just a means to an end,” John said. “[It’s a] great company, and a great place to work with a good culture. But it’s really built so that you can have a great life. Let’s use it for that. Let’s take care of the company, put out great product, be good to the ground, the water, the soil, and treat people right.”

For John, it always comes back to people. His attention to how he values those around him in his community, whether they work for him or not, is in his actions more than his words. A key area of focus for him is the Seneca Family of Agencies. Being one of the six children Andy and Phyllis D’Arrigo adopted at birth, John has devoted time and resources to the Kinship Center. The Ag for Kids campaign started in 2013 and has raised over $285,000 for the Kinship Center’s Family Ties and Foster Care/Adoption programs. In his support of the Kinship Center, John looked to provide care to children in an important and sometimes overlooked way: “We built them a mental health clinic because we figured out that the physical aspects of adoption were happening but not the mental part,” John said. The project to create the D’Arrigo Children’s Clinic in conjunction with the Kinship Center started in 2004. Since then, the clinic provides psychological and psychiatric services from experienced therapists. Children and their families have access to individual, family and group counseling provided in both English and Spanish.

Another example of John supporting the younger generation and their advancement is his involvement with Rancho Cielo, a non-profit organization that started in 2003 to support the learning and social services for underserved youth in Monterey County. Rancho Cielo provides education in skills like construction, ag technology and auto and diesel repair. The welding and fabrication wing sponsored by the D’Arrigo Family opened in fall 2022.

John’s motivation to find ways to meet the needs of those in his community continued in 2010 when he created The Agricultural Leadership Council (TALC) for the Natividad Medical Foundation to improve health care for farm workers and their families. John brought farm families in the area together with two promises: help the farm workers and their families get the medical support they need and there wouldn’t be any required meetings. With that, TALC has donated over $4,500,000 that has gone toward medical equipment, diagnostic tools and health services to the Natividad Medical Center.

And John’s dedication to the health care field extends beyond TALC. D’Arrigo California is committed to supporting and raising awareness for breast cancer research. The $2.3 million dollars that D’Arrigo California has donated to the Breast Cancer Research Foundation has funded over 42,000 hours of breast cancer research.

The level of care that John has for those around him, both near and far, has had wide-reaching effects experienced by those in many different organizations. Whether he has served on a board for a company like Western Growers where his influence has made its mark, worked with his colleagues within the industry around him who have his guidance as well as support, or supported those who work for him who have the opportunity to thrive in their careers while also being present with and for their families, John’s authenticity, integrity and generosity has reached many. John may not have set out to build a legacy that summer when he started saving for that bike, but he has been building a lasting and grand one ever since.

President’s Notes: Telling Our Story

September 1st, 2023

Back in April, the California Department of Food and Agriculture (CDFA) and the California State Board of Food and Agriculture released a plan entitled Ag Vision for the Next Decade. While the focus was primarily on climate action, the document did speak to the need to enhance public understanding of agriculture and engage urban audiences.

In his commentary on this plan, Richard Smoley, contributing editor for Blue Book Services, offered the following analysis: “I do not see that the leadership of California agriculture has matured a great deal on this issue than when I started to cover the field 40 years ago.

In other words, Smoley believes our industry is no better at telling its story to the public than we were in the early 1980s.

Having spent a good part of my pre-Western Growers career in various communications roles, I respectfully disagree.

More than seven years ago, Western Growers embarked on a long-term strategy aimed at informing and persuading urban populations and, over time, changing for the better the way their elected representatives view agriculture and public policy. Since then, we have been steadily making inroads with urban audiences, sharing our members’ stories with millions of voters in California and Arizona, and beyond.

Don’t get me wrong. This is not a “mission accomplished” moment. Far from it. But we are making real progress and building a strong foundation for an even broader and increasingly effective platform that can connect and convince people who would otherwise hear only the falsehoods propagated by special interests aligned against agriculture.

Much of this work revolves around social media. Our Facebook page, which has grown to nearly 75,000 followers, has reached more than 38 million people over the last three years with photos, videos and infographics designed to project a realistic and authentic image of our members and the industry. Popular subject matter has included stories about technology, farm labor and good old-fashioned harvest tools. (It appears our urban brothers and sisters love knives!)

Importantly, we’re not just talking to ourselves in an echo chamber. In the early years, most of our Facebook followers predictably came from agricultural regions like Salinas, Fresno, Bakersfield and Santa Maria. Today, due to a combination of viral reach and boosting our message via paid geographic targeting, our top city for followers is Los Angeles, with the major metropolitan areas of Phoenix, San Diego and Sacramento all ranking in the top seven.

The numbers are even more staggering on the traditional media front. This year, through the end of July, print, digital, radio and television coverage. of Western Growers and our members have reached a potential audience of more than seven billion (yes, with a “b”).

At first, this number may seem unfathomable, ludicrous even. But think of all the people reading news online, watching TV, or listening to radio or podcasts every single waking hour of every day. Interestingly, the default habit of scrolling through a phone has given us a great deal of opportunity to tell the story of agriculture to people who may otherwise only encounter fresh produce at their grocery store.

Let me wrap up with this. In his critique of what he calls agriculture’s “half century of public relations failures,” Smoley articulates this point that merits some pause: “A good swath of the public views California agriculture as exploitative and indifferent to the consequences of its own actions,” especially when it comes to the topics of labor and the environment.

If we accept that this perception exists, how do we best get our messages in front of urban audiences, whether on social media or through major news outlets like The New York Times, USA Today, NPR or PBS.

The secret is you. Our members are our best messengers. Public opinion surveys consistently demonstrate that Americans have an extremely high level of trust in farmers. And the best way to get mainstream news organizations to present an accurate, dynamic portrait of the work we do is to let them visit your operations and see them firsthand.

Certainly, an interview with the press via e-mail, phone or Zoom is fine, but the truth of the ag industry cannot be fully realized until a reporter gets their boots dirty. I am confident that any reporter who spends any amount of time with any of our members will walk away with a new and compelling appreciation for the hard work we do, the care with which we do it and the good that flows from our farms to our communities, states and nation.

My team and I know very well that it takes guts to put yourself and your farm out there like that. But we have your back. We have an extraordinarily talented communications team that will work with reporters and provide you with media training and other preparations ahead of a media farm tour. The lessons from these in-person discoveries are the most effective way to share the truths of our industry with the vast urban audiences that elect most legislators.

Together, we can set a new course for how the public perceives agriculture.

California Leafy Greens Marketing Agreement Adopts Western Growers’ Groundbreaking Food Safety Data Sharing Initiative 

September 21st, 2023

IRVINE, CALIF. (Sept. 21, 2023) – Members of the California Leafy Greens Marketing Agreement (LGMA) will adopt Western Growers’ proprietary GreenLink® data sharing platform to collect and analyze food safety data.

This landmark movement towards industry cohesion means that the leafy green industry will advance collective learning by utilizing a standardized data collection approach. Developed by the Western Growers Science team in collaboration with Western Growers member companies, GreenLink® provides a digital, secure and confidential online platform that enables users to share food safety data. 

“The use of GreenLink® by the California LGMA is a huge step forward as our industry continues to make sure we advance the best food safety practices, which are essential to providing consumers the safest produce possible,” said Western Growers Senior Vice President of Science De Ann Davis. “The power of data is irrefutable, and we believe that food safety strategies dictated by science and prevention are the best way to maintain a secure food supply.”

More information about GreenLink® can be found here; a webinar entitled “The Future is Now: How Data Sharing Enhances Food Safety” about the data sharing platform can be viewed here.

EEOC and DOL/WHD Enter Into Formal Cooperation Agreement

September 20th, 2023

The Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor’s Wage and Hour Division (DOL/WHD) have entered into a Memorandum of Understanding (MOU) signaling a new era of interagency cooperation facilitating the sharing of information, joint investigations, training and outreach.

The non-binding MOU outlines procedures to be followed by both agencies as they collaborate on information and data sharing, particularly in the areas of:

  • Employment discrimination based on protected classifications (e.g., race, color, religion, sex, national origin, age (40 and older))
  • Disability or genetic information
  • Unlawful compensation practices (e.g., violations of minimum wage, OT pay, or wage discrimination)
  • Working and living conditions of employees
  • Denial of required break times or places for nursing mothers to express milk
  • Unlawful denial of family and medical leave and leave-related discrimination based on disability, pregnancy, or caregiving responsibilities
  • Employment opportunities for individuals with disabilities
  • Identification and investigation where employees have been misclassified as independent contractors and/or where joint employer liability may facilitate compliance and accountability under the law; and
  • Unlawful retaliation against workers who assert workplace rights, including retaliatory exploitation of immigration status to discourage workers from asserting their rights.

How Will This Coordinated Effort Work?

According to the MOU, when, during an investigation, agency personnel have reason to believe that conduct may have occurred that the other agency could deem unlawful under its laws, the investigating agency will advise the potential complainant or filing party that they may be able to file a charge or complaint with the other agency. It will then be up to the agencies to determine whether to conduct coordinated investigations of matters arising within both agencies’ jurisdictions.

Signed on September 13, 2023, the MOU takes effect immediately and will remain effective until/unless terminated by the agencies.

What Does It All Mean?

Information, data and document sharing between these powerhouse agencies means consistency will be a key factor when it comes to employer data reporting and pay practices. The same is true for how employers handle complaints/instances of harassment, discrimination or retaliation based on various protected classification under various statutes.

As a reminder, the DOL/WHD administers and enforces:

  • The Fair Labor Standards Act (FLSA)
  • Migrant and Seasonal Agricultural Worker Protection Act (MSAWP)
  • The Immigration and Nationality Act; and
  • The Family and Medical Leave Act (FMLA)

The EEOC administers and enforces laws prohibiting employment discrimination against applicants, employees, and former employees, such as:

  • Equal Pay Act (EPA)
  • Title VII of the Civil Rights Act (Title VII)
  • The Age Discrimination in Employment Act (ADEA)
  • Title I of the Americans with Disabilities Act (ADA); and
  • The Pregnant Workers Fairness Act of 2022 (PWFA)

 

2022 EEO-1Data Collection Opens October 31, 2023

September 20th, 2023

The 2022 EEO-1 Component 1 data collection opens October 31, 2023. The EEO-1 online Filer Help Desk will open the same day to assist filers with any inquiries they may have regarding the 2022 collection. The deadline to file the 2022 EEO-1 Component 1 report is December 5, 2023.

EEO-1 reporting is a mandatory annual data collection requiring all private employers with 100 or more employees (and federal contractors with 50 or more employees) that meet certain criteria, to submit demographic workforce data, including data by job category and sex and race or ethnicity to the Equal Employment Opportunity Commission (EEOC).

EEOC provided instructions and updated information on EEO-1 filing can be found online:

AgTechX Ed Summit: Developing the Next Generation of Tech-Savvy Ag Workers

September 19th, 2023

The Western Growers Center for Innovation & Technology, California Department of Food and Agriculture and Sierra College have partnered to host AgTechX Ed – a half-day event, Thursday, October 12, dedicated to developing the next generation of tech-savvy agricultural workers.

The AgTechX Ed Summit at Sierra College will be comprised of 3 panels, covering topics including: industry issues and skill identification; education and workforce development strategies; and current and future workforce needs on the farm.

This event is part of the AgTechX Ed Initiative – a statewide effort, led by Western Growers and California Department of Food and Agriculture Secretary Karen Ross, to cultivate a future workforce with the skills and knowledge needed to navigate emerging on-farm technology.

Register for the event to help us develop the skills of tomorrow TODAY!

Understanding USDA Appeal Inspections for Produce Shippers

September 19th, 2023

If you find yourself in a situation where you believe that a USDA inspection has inaccurately described the condition of your produce upon reaching its contractual destination, it’s important to know that you have the right to request a USDA Appeal Inspection to reevaluate the quality and condition of your product. This process is designed to ensure fairness and accuracy in assessing your produce. Here’s what you need to know about USDA Appeal Inspections:

1. Requesting an Appeal Inspection:

  • To initiate an appeal inspection, you must act promptly. As a shipper, you should request it immediately upon becoming aware of the results of the initial inspection.
  • It’s crucial to inform your buyer not to move or sell any of the product you shipped until the appeal inspection is completed. Failure to do so may have financial implications.
  • If your buyer disregards your request and sells or moves the product, they could be held responsible for full payment, as they would have hindered your right to obtain an appeal inspection.

2.  Who Can Request an Appeal Inspection:

  • An appeal inspection can be requested by any financially interested party. This includes shippers, buyers, or any party with a stake in the produce.
  • The PACA Branch (Perishable Agricultural Commodities Act Branch) may also request an appeal inspection if they have concerns about the original inspection’s results.

3. Appeal Inspection Process:

  • An appeal inspection must be carried out by either a USDA supervisor or two different inspectors. The goal is to provide a fresh perspective and ensure objectivity.
  • During the appeal inspection, the number of samples used is doubled compared to the first inspection. This increased sampling aims to provide a more accurate assessment of defects.
  • The results of the appeal inspection will either uphold or overturn the findings of the first inspection.
  • If the appeal inspection supports the initial inspection, the cost of the appeal falls on the applicant. However, if the appeal overturns the first inspection, there is no charge for the appeal.

4. Appeal Inspection Criteria:

  • A request for an appeal inspection is typically accepted under the following circumstances:
    • The lot can be positively identified as the same lot previously certified, using trailer license, car or van number, or approved Federal or Federal-State Positive Lot Identification.
    • The lot is misbranded and can be positively identified.
    • The complaint relates to a permanent factor (e.g., quality, grade, size, or weight) that would not have changed since the previous inspection.
    • The complaint concerns a condition factor that may change, but it is evident that the condition was present at the time of the previous inspection due to factors like time lapse, temperatures, perishability of the product, and the degree and type of deterioration.
    • In some instances where procedures weren’t followed, there were obvious sampling errors or a lapse in grader judgment is apparent, the Fresh Products Branch may request an appeal.

5. When an Appeal Inspection May Be Denied:

  • An appeal inspection request may be denied in situations where:
    • The complaint concerns a factor that may have changed since the original inspection.
    • The original inspection was based solely on “samples taken,” submitted samples, or another portion of the load that cannot be identified.
    • A significant number of containers from the original manifest are not accessible for sampling or have been disposed of.
    • The lot is not positively identified, and misbranding is not involved.
    • An appeal inspection has already been conducted for the same lot.

6. USDA Review:

  • It’s essential to note that appeal inspections are taken seriously by the USDA, and each appeal inspection is reviewed by the USDA/AMS Specialty Crop Inspection Division in Washington D.C.

In conclusion, understanding the process and criteria for USDA Appeal Inspections is crucial for shippers and other parties involved in the produce industry. Timeliness, accurate documentation, and cooperation with the inspection process are key to ensuring fair assessments and protecting your interests in the event of a dispute.

Shippers who are members of Western Growers can avail themselves of assistance to review and navigate USDA inspections. Please contact me at [email protected] or (949) 885-4808 and provide a copy of the USDA inspection certificate for support.

 

U.S. Specialty Crop Coalition Endorses Legislation Addressing Research, Nutrition and Trade

September 14th, 2023

FOR IMMEDIATE RELEASE

 

MEDIA CONTACTS:

Christina Morton, Florida Fruit & Vegetable Association, [email protected]

Ann Donahue, Western Growers, [email protected]

Mark Szymanski, National Potato Council, [email protected]

WASHINGTON, D.C. (Sept. 14, 2023) – The Specialty Crop Farm Bill Alliance (SCFBA), a national coalition of more than 200 specialty crop organizations representing growers of fruits, vegetables, dried fruit, tree nuts, nursery plants and other products, this week endorsed legislation that would address major priorities tied to research, nutrition and trade laid out in the group’s 2023 Farm Bill recommendations:

  • Specialty Crop Research Act of 2023, introduced by Rep. Elissa Slotkin (MI-07), would increase mandatory funding for the Specialty Crop Research Initiative and IR-4.
  • GusNIP Expansion Act of 2023, introduced by Reps. Rick Crawford (AR-01) and Dan Kildee (MI-08), would enhance and expand the Gus Schumacher Nutrition Incentive Program (GusNIP), providing low-income Americans with greater access to fresh fruits and vegetables.
  • Expanding Agricultural Exports Act, introduced by Senators Angus King (ME), Joni Ernst (IA), Tina Smith (MN), Susan Collins (ME), and Chuck Grassley (IA) and Reps. Dan Newhouse (WA-04), Jim Costa (CA-21), Tracey Mann (KS-01), Kim Schrier (WA-08), Ashley Hinson (IA-02), Jimmy Panetta (CA-19), Bradley Finstad (MN-01), and Chellie Pingree (ME-01), would double the funding for the Market Access Program to $400 million.

“The Specialty Crop Farm Bill Alliance has long advocated for investments in the competitiveness and sustainability of the U.S. specialty crop industry to produce a strong return for both farmers and all Americans – it’s foundational to everything we do,” the SCFBA Co-Chairs said in a joint statement. “That’s why we are grateful for those in the U.S. Senate and House who continue to champion policy ideas that will improve access to fruits and vegetables in federal nutrition programs and enhance the long-term competitiveness of the industry.”

The SCFBA was established to advocate for the unique needs of specialty crop growers in the Farm Bill and enhance their overall competitiveness in the face of increasing global competition and regulatory and buyer demands. It is led by Co-Chairs Mike Joyner, President of the Florida Fruit & Vegetable Association; Dave Puglia, President and CEO of Western Growers; and Kam Quarles, CEO of the National Potato Council, with Robert Guenther, Chief Public Policy Officer for International Fresh Produce Association, who serves as secretariat for the Alliance.

Specialty crop production, including fruits, vegetables, tree nuts, nursery and greenhouse commodities, contributes significantly to the U.S economy, accounting for $64.7 billion in farm gate value and 30 percent of farm cash receipts for crops.

# SCFBA #

The Specialty Crop Farm Bill Alliance is a national coalition of more than 200 organizations representing growers of fruits, vegetables, dried fruit, tree nuts, nursery plants and other products. The Alliance was established to enhance the competitiveness of specialty crop agriculture and improve the health of Americans by broadening the scope of U.S. agricultural public policy. For more information, visit farmbillalliance.com. 

 

Department of Labor Proposes New Protections for H-2A Farmworkers

September 13th, 2023

The U.S. Department of Labor is proposing new rules aimed at bolstering protections for H-2A farmworkers, preventing abuses that undermine labor standards, and promoting fair treatment for all agricultural workers.

Key provisions of the proposed rule include:

  1. Empowering Worker Self-Advocacy: The proposed rule seeks to empower workers by expanding and clarifying existing anti-retaliation protections. It enables workers to invite and accept guests, including labor organizations, in employer-provided housing. For workers not protected by the National Labor Relations Act, employers would be required to provide a list of workers to requesting labor organizations. Workers could designate a representative to attend meetings with employers that could result in disciplinary actions. Additionally, employers must be transparent about their stance on workers’ rights to organize freely.
  2. Clarifying Terminations “For Cause”: The proposed rule clarifies when an employer can terminate a worker “for cause.” It sets express conditions for such terminations, ensuring that employees are informed of productivity standards and employer policies.
  3. Enhancing Foreign Labor Recruitment Transparency: Recognizing the need for transparency in the recruitment process, the proposal mandates employers to provide copies of all agreements with recruiters, whether domestic or international. Employers must also disclose the names and locations of individuals soliciting H-2A workers on their behalf.
  4. Predictable Wages: To make wages more predictable, the proposed rule makes new wage rates applicable immediately upon publication in the Federal Register. This rolls back the current 14-day notice period and harkens back to an earlier time when employers had to immediate changes to payrates, mid pay period. Employers failing to provide adequate notice of a work start date delay would be required to compensate workers accordingly.
  5. Transportation Safety: The proposed rule mandates seat belt usage for all employer-provided vehicles, except in specific circumstances, where workers must wear seat belts as required by the Department of Transportation.
  6. Strengthened Enforcement and Program Integrity: The proposal aims to streamline and expedite the debarment process for businesses violating H-2A program rules. It also allows state workforce agencies to discontinue recruitment services for non-compliant employers. Additionally, the rule prohibits employers from holding or confiscating workers’ passports, visas, or other government identification documents.

The notice of proposed rulemaking was published on September 12, 2023, in the Federal Register and is open for public comment for 60 days. This period provides an opportunity for stakeholders to provide feedback and insights which the Department of Labor will consider before finalizing the rule. Western Growers and its industry allies will be submitting comments to DOL.

Mulholland Citrus and Ratto Bros. Featured in “America’s Heartland”

September 12th, 2023

The longevity and success of a family business serves as a testament to its enduring values and commitment to perseverance. Join PBS’s “America’s Heartland”, as they showcase Western Growers members Mulholland Citrus and Ratto Bros, both of which are multi generations strong.

If the Mulholland name sounded familiar, you’d be correct! The family-owned and operated citrus giant is renowned not only for their sweet oranges but are also the namesake behind the famous Mulholland Drive in Los Angeles, California. The very first Mulholland Citrus farm was established in Los Angeles by Perry Mulholland in the 1920s. In 1978, Tom Mulholland set out to start his own nursery in Orange Cove, California, with a mission to advance the citrus industry. He has since passed on the craft to his daughters, Heather and Alyssa.

“Most times I think women are identified as a farmer’s wife or have historically been a farmer’s wife or the farmer’s daughter. I’m pretty excited to break that norm. I’m really hopeful and excited for the future of females in agriculture,” says Heather Mulholland, COO.

Next stop, Modesto, California to visit the operations of Ratto Bros. In 1905, Antone Ratto, known as the ‘market man’ began planting the family’s first seeds in the Oakland area and delivered vegetables to customers with his horse- drawn carriage. The image of Antone on his carriage is still the company’s logo to this day!

In the century that has passed, the Ratto family have been stewards of the land working, hard to bring consumers 35 different vegetables and herb varieties. Today, four sons of the Ratto brothers run the family’s operations in the fields, cooling and distribution facility, sales office, and corporate headquarters.

“Farmers of America today are doing that today across the United States and across the globe because making sure people get nutritious, healthy food to eat is what’s most important,” says President Frank Ratto.

They believe they’ve discovered the perfect recipe for farm family success: a lot of heart deeply rooted in hard work.

Check out the episode by clicking here.

Episodes of “America’s Heartland” can be viewed on your area’s PBS station – check your local listings for exact date and time; more than 90 percent of all PBS stations in the country carry the show – as well as on PBS.org; the PBS standalone app; “America’s Heartland’s” website and YouTube; as well as weekly on RFD-TV. “America’s Heartland” is a production of Sacramento’s PBS KVIE.

 

WG Seeks Members for Food Safety Advisory Subcommittee

September 13th, 2023

Western Growers formed the Food Safety Advisory Subcommittee (FSAS) in early 2021 to bolster its efforts to solve produce safety challenges.

FSAS members advise Western Growers Science staff and the Science Committee, which reports to the WG Board of Directors. Members of the Subcommittee will be kept abreast of WG’s key food safety initiatives and efforts. They will also provide WG’s Science staff feedback on current efforts and member needs.

Twelve WG members serve on the FSAS, and we are currently looking for three new members to join this Subcommittee. If you are interested in this opportunity, please complete a short interest form. We will be selecting members that meet the FSAS eligibility criteria on a first come, first served basis. The deadline to complete and submit the form is Sept. 28, 2023.

For questions about this Subcommittee or process, contact Sonia Salas at [email protected]

 

 

California Court Sets Strict Timer for Payment of Arbitration Fees

September 12th, 2023

The California Court of Appeal has handed down a ruling with potential far-reaching implications for employers seeking to enforce arbitration agreements.[1]

The case centered around petitioner Jane Doe’s legal action against her former employer, Na Hoku, Inc., and her former manager, Ysmith Montoya. Doe had brought forth multiple claims stemming from Montoya’s alleged sexual harassment and assault. In response, the real parties involved successfully compelled the case into arbitration.

One critical aspect of the case revolved around the timing of payment of arbitration fees and costs. According to Code of Civil Procedure section 1281.98(a)(1), these fees had to be “paid within 30 days after the due date” to avoid a breach of the arbitration agreement. The due date stated on the American Arbitration Association’s (AAA) bill for payment was September 1, 2022, and AAA had to receive payment by Monday, October 3, 2022, to comply with the statutory requirement.

However, in this case, the real parties opted to mail a check on Friday, September 30, even though alternative electronic payment methods such as credit card and E-check were available. As a result, AAA received the payment on October 5, two days after the statutory 30-day grace period had elapsed.

Petitioner Jane Doe subsequently moved to vacate the order compelling arbitration on the grounds that the real parties failed to meet the 30-day payment deadline as stipulated by section 1281.98(a)(1). The trial court initially denied this motion, effectively preventing Doe from withdrawing from arbitration and pursuing her claims in court. In response, she filed a petition for a writ of mandate with the California Court of Appeal.

Agreeing with the petitioner, the Court of Appeal upheld the strict enforcement of the 30-day grace period outlined in section 1281.98(a)(1). The court’s ruling made it abundantly clear that fees and costs associated with a pending arbitration proceeding must be received by the arbitrator within 30 days after the specified due date. The court went on to say:

“We do not find that the proverbial check in the mail constitutes payment and agree with petitioner that real parties’ payment, received more than 30 days after the due date established by the arbitrator, was untimely. We therefore grant the writ petition.”

This decision carries significant implications for individuals and organizations involved in arbitration agreements in California. It underscores the importance of adhering to strict payment deadlines and highlights the potential risks associated with relying on traditional mail methods for fee payment. Therefore, employers should promptly pay arbitration fees to ensure that payments are made well in advance of the payment due date.  It’s not worth taking the risk to delay payment.

[1] Doe v. Superior Court

NLRB Reevaluates What It Means to Engage In Protected Concerted Activities

September 12th, 2023

The National Labor Relations Board’s (NLRB) latest decision in Miller Plastic Products, Inc., overrules existing standards and returns to prior precedent for determining what constitutes concerted protected activity under the National Labor Relations Act (NLRA or the Act).

Section 8 of the NLRA makes it an unfair labor practice “to interfere with, restrain, or coerce employees” in the exercise of the rights guaranteed in Section 7 of the Act. Section 7 establishes the right “to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” To be protected under Section 7 of the Act, employee conduct must be both ‘concerted’ and engaged in for the purpose of ‘mutual aid or protection.

Prior precedent held that an employee’s activity is concerted when it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” And that concerted activity under Section 7 “encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” Not wanting to establish a rigid case-based definition, prior NLRB actions made clear that “the question of whether an employee engaged in concerted activity is, at its heart, a factual one” based on the totality of the record evidence. This is the standard returned to under the Miller decision.

What it All Means

Simply dismissing workplace complaints as merely ‘griping,’ without taking into consideration the context within which the complaint was made, could put the employer in a position of having inadvertently violated an employee’s NLRA rights. Employers need to consider the whole of the circumstances surrounding the complaint.

Before taking disciplinary action against an employee who has voiced a workplace complaint, consider the following:

  • Does the complaint raise a concern about company health and safety protocols?
  • Was the complaint voiced in a group setting? Keeping in mind that voicing concerns to one other employee can, under certain circumstances, be considered concerted activity for mutual aid or protection and a preliminary step to employee self-organization.
  • Does the complaint affect the individual and their co-workers as a group?
  • Was the complaint presented by the individual using group terms such as “we” and not just “I”?
  • Is the complaint likely to be a matter of concern to the individual’s co-workers?

If the answer to one or more of the above questions is “yes,” consider reaching out to legal counsel to get an opinion on how best to move forward in addressing the issue and/or taking any disciplinary steps.

California Enacts Statewide Ban on Smoking in the Workplace

September 12th, 2023

With the signing of SB 626 California initiates a statewide ban on smoking in the workplace. Finding the regulation of smoking in the workplace to be a matter of statewide interest and concern, the Legislature proposed SB 626 as a means of eliminating the need for local governments to enact workplace smoking restrictions within their respective jurisdictions.

Specifically, SB 626 “constitutes a uniform statewide standard for regulating the smoking of tobacco products in enclosed places of employment…and supersedes and renders unnecessary the [] enactment or enforcement of local ordinances regulating the smoking of tobacco products in enclosed places of employment and owner-operated businesses[i].”

The statute, with limited exception, applies “to all (100 percent) places of employment (which includes not only well recognized work areas but also covered parking lots, lobbies, lounges, waiting areas, elevators, stairwells and restrooms) and owner-operated businesses” within California.

The statue also addresses smoking by non-employees. An employer or owner-operated business who permits nonemployees access to their place of employment (or business) on a regular basis can avoid “knowingly or intentionally” violating the statute by taking the following reasonable steps:

  • Post clear and prominent signs, as follows:
    • Where smoking is prohibited throughout the building or structure, a sign stating “No smoking” shall be posted at each entrance to the building or structure.
    • Where smoking is permitted in designated areas of the building or structure, a sign stating “Smoking is prohibited except in designated areas” shall be posted at each entrance to the building or structure.
  • Request, when appropriate, that a non-employee who is smoking refrain from smoking in the enclosed workplace or owner-operated business.

To avoid putting employers and business owners in potentially confrontational situations, “reasonable steps” does not include:

  • Physically ejecting a nonemployee from the place of employment or owner-operated business; or
  • Requesting a non-employee refrain from smoking, under circumstances involving a risk of physical harm to the employer or any employee or owner-operator.

Violations of the statue will be considered an “infraction” carrying a fine not to exceed $100 for a first violation, $200 for a second violation within one year, and $500 for a third and for each subsequent violation within one year. The statute is to be enforced by local law enforcement agencies, including, but not limited to, local health departments, as determined by the local governing body.

[i] An “owner-operated business” means a business having no employees, independent contractors, or volunteers, in which the owner-operator of the business is the only worker.

WG Future Volunteer Leaders Visit Owyhee Produce in Idaho

September 11th, 2023

Members of Western Growers’ Future Volunteer Leaders Class VII visited Idaho and Eastern Oregon last week to expand their knowledge about the best ag practices in neighboring states.

Six leaders, including Celeste Alonzo from Junior Enterprises;  Krystal Del Bosque from Del Bosque Farms; Briana Giampaoli from Live Oak Farms; Garrett Nishimori from San Miguel Produce; Byron Talley from Talley Farms and Sal Parra from Burford Ranch were hosted by fellow FVL Shay Myers of Owyhee Produce in Parma, Idaho.

Other stops included a tour of the Amalgamated Sugar factory in Nampa, Idaho; Obendorf Hops in Parma, Idaho (pictured above); BASF’s Vegetable Seeds Business, featuring the Nunhems brand, in Parma, Idaho, as well as a jet boat tour of the Snake River where the group was inspired by the spotting of not one, not two, but three bald eagles.

Members of the FVL class are invited to participate in all regular Western Growers board meeting functions for two years, in addition to standalone farm tours with WG board members and trainings with the organization’s subject matter experts.

In 2011, Western Growers welcomed its inaugural class of Future Volunteer Leaders. The competitively selected Future Volunteer Leaders Program is designed for the next generation of leaders within Western Growers member companies interested in becoming more informed and effective advocates for the fresh produce industry. These individuals are policy-minded and have expressed a desire to serve the industry – both now and in the future – in volunteer leadership capacities.

 

Western Growers Women Relaunch Event

September 8th, 2023

Western Growers believes that women are essential to the future of agriculture, which is why we have developed WG Women, a program that prepares women for positions of leadership within WG member companies and the broader fresh produce industry.

We are excited to announce the relaunch of the WGW Program in the Fall of 2023. Join us October 6, 2023 to discover the latest courses, gain insights from our esteemed panelists, including program graduates and inspiring women leaders. Following the panels, we will embark on a captivating farm tour in the stunning central coast. Don’t miss out on this incredible opportunity!

To register or learn more, click here. 

ALRB Releases FAQs on AB 113 Card Check, Appeal Bonds

September 8th, 2023

The Agricultural Labor Relations Board has posted a Frequently Asked Questions regarding AB 113 which makes several changes to the Agricultural Labor Relations Act relating to card check elections, new civil penalties and appeal bonds.

The ALRB has also posted a majority support petition (i.e., card check) form. ALRB is in the process of developing regulations to implement the provisions of AB 113.