Farmworker Unionization Faces Legal Challenge Amidst Allegations of UFW Deception

March 19th, 2024

A dispute has erupted between the United Farm Workers (UFW) and Wonderful Nurseries LLC in Wasco over the unionization of over 600 employees. The Agricultural Labor Relations Board’s (ALRB) Regional Director’s decision to certify the UFW’s majority support petition (card check) has been challenged by Wonderful, alleging that workers were misled into signing union support cards under the impression they were applying for federal benefits.

One hundred forty-eight workers, or over one-third of the workers whose names appeared on “authorization cards,” submitted sworn statements to the ALRB claiming that the UFW misled them about the purpose of the cards they signed. Most of these employees said they believed they were applying for a $600 COVID-19 relief payment for agricultural workers, funded by a USDA grant program, not expressing a desire to join the union. Furthermore, these workers explicitly stated they had no intention of voting for the UFW, accusing the union of deceitfully acquiring their signatures under the guise of facilitating access to the relief funds.

Despite objections from Wonderful and sworn statements from employees wishing to withdraw their purported support for the union, the Regional Director confirmed the UFW’s representation. This decision has sparked considerable debate over the fairness of the card check procedure authorized by Gov. Gavin Newsom in late 2022 and amended shortly thereafter by AB 113. The law enables the UFW to circumvent traditional secret ballot elections, raising concerns about the integrity of the unionization process. The ensuing legal conflict and claims of deceit highlight the validity of earlier worries regarding the protection of workers’ rights and the equitable enforcement of the card check framework.

Previous versions of similar legislation were vetoed by Governor Newsom in 2021, and before him by former Governors Arnold Schwarzenegger in 2009 and Jerry Brown in 2011, due to concerns about undermining secret ballot elections. In his 2021 veto message for AB 616, authored by Assemblyman Mark Stone, Governor Newsom pointed out “various inconsistencies and procedural issues related to the collection and review of ballot cards.” These concerns have manifested in the initial certifications under AB 113, demonstrating the practical implications of the issues Newsom and the former governors highlighted.

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Voices of the Valley Available to Stream on YouTube and Spotify

March 13th, 2024

Exciting news for fans of Voices of the Valley! The podcast is back with a fresh new look and is now available for streaming on both Spotify and YouTube.

In this season’s debut episode, “2024 Look Ahead: Agriculture’s Biggest Challenges,” Center of Innovation and Technology Director Dennis Donohue and Environment and Climate Director Jeana Cadby lead a compelling discussion on the industry’s most pressing issues. From addressing challenges in innovation to navigating the complexities of environmental sustainability, this episode provides invaluable insights into the strategies that are driving progress in the agriculture industry.

In the second episode of the new season, “Do You Really Know Where Your Food Comes From,” listeners join Celeste Alonzo of Junior Enterprises and Western Growers’ Social Media Manager Julia Nellis. This episode sheds light on misconceptions within the fresh produce industry, unraveling the complexities behind food production and distribution.

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2024 LGMA Amendment Process Update: Priority Setting

March 13th, 2024

During the month of February, Western Growers facilitated the California LGMA priority setting process. The priority setting process consisted of five main steps:

  1. Selection of the Priority Setting Committee: A committee of nine participants, representing California, Arizona, LGMA staff, industry and academia, was chosen to lead the priority setting process.
  2. Topic Submission: 11 priorities were submitted by stakeholders for evaluation.
  3. Discussion Meetings: In-depth discussions were held to explore each priority’s implications and feasibility.
  4. Priority Voting: Following discussions, the committee voted to determine the most critical priorities.
  5. Priority Selection: Two key priorities have emerged from this process:
    1. Ag Water Standards
      1. Review of Type B to A water standards.
      2. Review variable water quality and sampling standards as they relate to generic E. coli.
    2. Harvesting Equipment Sanitation
      1. Harvest Equipment Sanitation – review key changes (initial process as part of a long-term effort)

For more information, visit leafygreenguidance.com. You can also access the Priority Setting report.

What’s Next?

Priority Working Group: Western Growers will facilitate industry representatives and subject matter discussions to generate comments and propose changes aligned with the selected priorities.

30-day Comment Period: Western Growers will open a 30-day comment period, inviting stakeholders to contribute their insights.

Web-based Discussion: After the comment period, a web-based discussion will be hosted to allow submitters to present their proposals and engage in constructive dialogue.

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Save the Date for the 2024 Western Growers Annual Meeting

March 12th, 2024

Mark your calendars! We are pleased to announce the 98th Western Growers Annual Meeting will be held at the JW Marriott Scottsdale Camelback Inn Resort and Spa on November 3-6, 2024.

Set against the stunning backdrop of Scottsdale, Arizona’s expansive desert landscape, this premier gathering for agricultural industry leaders promises unparalleled networking opportunities, distinguished speakers and world-class entertainment.

Please be sure to visit the Annual Meeting website at wgannualmeeting.com, where we’ll be adding frequent updates, including registration information, keynote speakers and more.

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New NLRB Joint Employer Final Rule Struck Down by Federal Court

March 14th, 2024

As discussed here, on October 26, 2023, the National Labor Relations Board (Board) issued a new Final Rule affecting joint employment under the National Labor Relations Act (NLRA). The new rule rescinded the Board’s prior rule enacted in 2020 (“2020 Rule”) and instead set forth a new test expanding the circumstances under which an employer is deemed a ‘joint employer.’

Legal challenges saw the new rule’s effective date pushed back multiple times from December 26, 2023, to February 26, 2024, and then to March 11, 2024.  On March 8, 2024, a U.S. District Judge of the Eastern District of Texas vacated the new Final Rule finding the Board’s attempt at recission unlawful as well as arbitrary and capricious.  This decision restores the 2020 Rule.

What is the 2020 Rule?

In 2020, the Board issued a final rule (“2020 Rule”) under which one entity can be considered a joint employer of another entity’s employees only if it exercises actual “substantial direct and immediate control” over the employees’ essential terms and conditions of employment (i.e., wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction) in a manner that is not sporadic and isolated. In other words, indirect control – or the reserved but unexercised right to control – is not considered sufficient to establish a joint-employer relationship.

It is unknown whether this ruling will be further challenged.

Employers should continue to keep in mind that the NLRA joint-employer rule is not the same rule applied by the U.S. Department of Labor for purposes of the Federal Labor Standards Act.

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CDC Updates COVID-19 Recommendations

March 14th, 2024

The U.S. Center for Disease Control and Prevention (CDC) has updated its recommendations for how people can protect themselves and their communities from respiratory viruses, including COVID-19. The update addresses risks from a range of common respiratory viral illnesses, such as COVID-19, flu, and RSV.

When sick with a respiratory virus, the CDC’s updated guidance recommends staying home and away from others. For people with COVID-19 and influenza, the recommendations suggest returning to normal activities when, for at least 24 hours, symptoms are improving overall, and if a fever was present, it has been gone without use of a fever-reducing medication.

Once normal activities are resumed, CDC encourages additional prevention strategies for the next 5 days to curb disease spread. This includes enhancing hygiene practices, wearing a well-fitting mask, keeping a distance from others, and/or getting tested for respiratory viruses. Enhanced precautions are especially important to protect those most at risk for severe illness, including those over 65 and people with weakened immune systems.

The new CDC guidelines do not apply to healthcare personnel who remain subject to current CDC recommendations, nor does it supersede accommodations required under federal civil rights laws.

As discussed here, similar recommendations were put into effect in California in early January 2024.

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EEOC Releases Data Dashboard for Pay Data Collection

March 14th, 2024

On March 12, 2024 the U.S. Equal Employment Opportunity Commission (EEOC) made available its new  data dashboard featuring the first-time collection of 2017 and 2018 pay data reported by about 70,000 private employers and certain federal contractors with 100 or more employees each year, representing over 100 million workers.

The dashboard contains aggregated employer-level workforce demographic and pay data, reported by pay band. EEOC’s aggregation of the data protects the confidentiality of employees and employers.

According to the EEOC, employers can use the dashboard across various industries, employers, and individuals to assess generally how their own pay data by sex and race compares to others in their industry, job category, or state.

Results from the time period include:

  • Overall: In 2018, the national median pay band for men was one pay band higher than the median pay band for women ($39,000 to $49,900 compared to $30,600 to $38,900), and in 2017, it was two pay bands higher ($39,000 to $49,900 compared to $24,400 to $30,600).
  • Race and Ethnicity: In 2018, in each race and ethnicity category, women were in a lower median pay band than men of the same race or ethnicity, with Black or African American women and American Indian or Alaska Native women in the lowest median pay band of all groups ($19,200 to $24,400).

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Western Growers Science Organizes Nexus of Soil Health and AgTech Field Day at Braga Fresh

March 19th, 2024

Western Growers Science hosted a field day in collaboration with Braga Fresh on the topic of the Nexus of Soil Health and AgTech, which highlighted innovative technologies and fresh produce production practices that elevate soil health. The event was well attended (+85) and facilitated industry ag tech networking as well as highlighted several WG members who are working in this space.

The day included the following events:

The Significance of Soil Respiration as a Pivotal Indicator of the Soil’s Overall Health and Microbial Activity

Speaker: Charlie Dubbe, Agrology

Live Demonstration of spray drone, in field, Wilbur Ellis

Speaker: Elliot Dorenbaum, Wilbur Ellis

Soil Health, Data, and Collaborations, Field Demonstration of Agrology’s Arbiter

Speaker: Charlie Dubbe, Agrology

Demonstration of Veda, field equipment on broccoli

Speaker: Sam Stoffers, Veda Farming

Braga Fresh Healthy Soils Project

Speaker:  Kyle Harmon, Braga Fresh and Pam Krone, CMSF

Sporenado, a Passive Spore Trapping and Detection System

Speaker: Kristine White, Sporenado

Western Growers Work in Ag Tech and Innovation

Speaker:  Ben Palone, Western Growers

Field Automation Advancements for Specialty Crops

Speaker: Nathan Dorn, farm-ng

Biochar and Carbon Sequestration in Agriculture

Speaker: Steve McIntyre, Monterey Pacific

The Nexus of Soil Health and Ag Tech, Panel Discussion

Panelists: Ben Palone, John McKeon, Nathan Dorn, and Parry Klassen

Moderated by Walt Duflock

 

For information about this event or to hear about future events, please email [email protected].

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Western Growers Responds to Agriculture Labor Working Group Report, Renews Call to Pass FWMA 

March 12th, 2024

IRVINE, CALIF. (March 12, 2024) – Following the release of the March 7 Agriculture Labor Working Group report on the farm labor crisis, Western Growers President & CEO Dave Puglia wrote a letter to Agriculture Labor Working Group Co-Chairs Rep. Rick Crawford, R-Ark., and Rep. Don Davis, D-N.C., renewing his call for the U.S. Congress to take up the Farm Workforce Modernization Act:

“The persistent and worsening shortage of labor for many sectors in the agricultural industry has collided with rapidly rising wage costs for employers forced to utilize the H-2A program to secure temporary foreign workers,” Puglia wrote. “The fallout takes many forms. For example, America is increasingly dependent on imported fresh produce as the cost structure for domestic production, driven in large part by labor costs, continues to advantage foreign producers. Within our own membership, these and other regulatory factors are forcing farm consolidation, which increasingly results in multi-generational family farms giving way to private equity investors.

“In several areas the report cites provisions of the Farm Workforce Modernization Act (H.R. 4319), notably including the wage formula for employers utilizing the H-2A program. As you know, had the Farm Workforce Modernization Act (FWMA) become law, farmers employing H-2A workers would have saved $1 billion in wage costs in 2023 and another $1.8 billion through 2024. The H-2A wage rate today would be 12.7 percent lower on a national average had that legislation become law.

“It remains a highly regrettable lost opportunity that the Senate did not take up this legislation after the House passed it with bipartisan support, twice in successive years.”

The entirety of the letter to the ALWG can be found here.

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Best Practices: Wage and Hour Self-Audit, Part 2

March 7th, 2024

In this second in our two-part series on wage and hour compliance, we address critical aspects of compliance for every employer’s operational playbook.

Timekeeping Practices

Employers must scrutinize their timekeeping systems, particularly in jurisdictions like California where rounding employees’ time is prohibited. Ensuring time is recorded accurately to the minute is essential for compliance.

 Meal and Rest Period Policies

It’s imperative that meal and rest period policies are not only documented in the employee handbook but also communicated regularly. Reminding employees of their rights ensures these breaks are taken, promoting well-being and compliance.

Manager Training on Break Administration

Managers should receive training on administering meal and rest breaks effectively, including steps to take when breaks are missed.

Tracking Paid Time Off

The documentation and tracking of vacation, paid sick leave, or PTO must be meticulous. Accurate record-keeping of paid time off is essential

Paycheck Deductions

All deductions from an employee’s paycheck must be scrutinized to ensure they are legally permitted, protecting the employer from potential disputes and legal challenges.

Reimbursement of Business Expenses

Employers must ensure that employees are reimbursed for all necessary business expenses, such as uniforms, mileage, and cell phone use. This practice is not only fair but also mandated by law in many jurisdictions.

By addressing these areas, employers can reduce the risk of litigation and foster a positive workplace culture.

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California Updates Mandatory New Hire Pamphlets

March 7th, 2024

The California Employment Development Department has updated its mandatory “For Your Benefit” pamphlet. The publication provides information about programs offered by the EDD for unemployed Californians and must be provided at the time of hire and termination. The publication is provided by the EDD in both English and Spanish.

The California Department of Industrial Relations (DIR) has also updated its mandatory “Time of Hire Pamphlet.” The publication provides mandated information about workers’ compensation benefits and must be provided to all newly hired employees. This publication is also available in both English and Spanish.

 

 

 

 

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Cal/OSHA Releases Model Workplace Violence Prevention Plan

March 7th, 2024

As discussed here, on September 30, 2023, California Governor Newsom signed SB 553[i] creating a new workplace violence law. In accordance with SB 553 mandates, starting July 1, 2024, covered employers will be required to implement a Workplace Violence Prevention Plan (WVPP).

To assist employers in establishing, implementing and maintaining an effective WVPP, the California Division of Occupational Safety and Health (Cal/OSHA) has released a Model WVPP. Much like the agency’s model Injury and Illness Prevention Plan (IIPP) and COVID-19 Prevention policy, the model WVPP provides the essential framework to identify, evaluate, and control workplace violence hazards.

The downloadable template allows employers to develop a stand-alone WVPP customized for their own needs. Nonetheless, employers are not required to use the model WVPP, but may create their own, use another WVPP template, or incorporate workplace violence prevention into their existing IIPP as a separate section.

While the use of any template cannot ensure compliance, the model WVPP is a great starting point. Employers are encouraged to review the WVPP even if choosing not to utilize it.

Cal/OSHA has also published two employer-focused workplace violence fact sheets: Workplace Violence Prevention in Agricultural Operations for Employers and Workplace Violence Prevention in General Industry (Non-Health Care Settings).  Each sheet provides important information on:

  • Creating a workplace violence prevention plan
  • Violent incident log requirements
  • Training employees on workplace violence; and
  • Employer responsibilities with workplace violence recordkeeping

Employers with compliance questions should consult with legal counsel ahead of the July 1, 2024 compliance deadline.

[i] Cal. Lab. Code Section 6401.9.

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Cal/OSHA Increases Civil Penalties for Certain Violations

March 7th, 2024

The California Division of Occupational Safety and Health (Cal/OSHA) announced increases for civil penalty amounts for 2024. The increases adjust for inflation and ensure Cal/OSHA is consistent with California and federal law.

What You Need to Know

Some of the maximum penalties are going up by as much as $4,983 this year, a smaller increase than in the past.

This annual increase is required by a law enacted by the California Legislature in 2017 that authorizes increases in certain minimum and maximum civil penalties to make them consistent with federal OSHA’s civil penalties. The increase is based on the Bureau of Labor Statistics’ report on the October Consumer Price Index for All Urban Consumers (CPI-U) each year. This year’s adjustment for inflation rate was approximately 3.24%.

For citations issued on or after January 1, 2024, the maximum penalties for violations classified as Regulatory, General, Willful, or Repeat are as follows:

  • The maximum penalty for General and Regulatory violations, including Posting and Recordkeeping violations is $15,873.
  • The maximum penalty for Willful and Repeat violations is $158,727.
  • The minimum penalty for Willful violations is $11,337.

The only maximum penalties that went unchanged are for violations classified as Serious; those penalties remain at $25,000.

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Building a Robust Company Credit Culture: Key Steps and Best Practices

March 4th, 2024

A company’s credit culture defines its approach to credit management throughout the organization, reflecting how decisions regarding credit are prioritized alongside other critical business initiatives. Ensuring timely payments from customers is vital for the success of any sales transaction. However, establishing and enforcing a comprehensive credit policy is often overlooked, leading to challenges in collections and increased bad debt.

As a trusted advisor to members of Western Growers, I frequently encounter situations where businesses lack a formal credit policy, relying instead on ad hoc procedures. In today’s digital age, overlooking the need for a well-defined credit policy is no longer acceptable. To mitigate bad debt experiences, it’s imperative for companies to institute mandatory credit policies, ideally overseen by a dedicated credit manager or designated point person.

Where should you begin? Developing an internal policy for approving customers and setting credit limits is crucial. Utilizing resources like the Produce Blue Book for foundational financial insights, along with tools for predictive analysis, can streamline this process. Additionally, conducting thorough evaluations of customer financials, references, and business practices is essential to assess creditworthiness accurately.

Establishing protocols for ongoing customer reviews is equally important. By consistently adhering to established credit policies, businesses can minimize the risk of bad debt. Here are eleven key considerations to guide your credit assessment process:

  1. Leverage credit reporting agencies and other resources for informed decision-making.
  2. Obtain audited financials and bank references.
  3. Clarify payment practices with customers upfront.
  4. Evaluate the longevity of the customer’s business.
  5. Verify PACA and DRC licensing.
  6. Identify principal owners and officers.
  7. Seek feedback from other suppliers.
  8. Investigate past payment issues involving customer employees.
  9. Consult with other industry peers.
  10. Utilize available trade resources for additional insights.
  11. Exercise caution when information is lacking, prioritizing informed business decisions over immediate sales.

Remember, establishing a disciplined credit culture requires consistent leadership and commitment throughout the organization. Regularly reassessing customer creditworthiness and adapting policies as needed are integral to long-term success. Should you require further assistance in developing or refining your company’s credit policy, please do not hesitate to reach out to me at 949.885.4808 or [email protected]. Investing in a robust credit culture will yield significant dividends by minimizing bad debt and promoting financial stability.

 

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April 2024 is Distracted Driver Awareness Month

March 27th, 2024

April 2024 has been designated as Distracted Driver Awareness Month by the National Safety Council (NSC). This event is intended to raise awareness and promote safe driving practices to decrease the number of on-the-road-related injuries and fatalities. Safety is everyone’s responsibility!

According to the Centers for Disease Control and Prevention, distracted driving refers to any activity that may divert a motorist’s attention from the road. There are three main types of distractions that can interfere with drivers’ attentiveness behind the wheel, including:

  • Visual distractions—These distractions involve motorists taking their eyes off the road. Some examples of visual distractions include reading emails or text messages, focusing on vehicle passengers, looking at maps or navigation systems and observing nearby activities (e.g. accidents, traffic stops or roadside attractions) while driving.
  • Manual distractions—Such distractions entail motorists removing their hands from the steering wheel. Some examples of manual distractions include texting, adjusting the radio, programming navigation systems, eating, drinking or performing personal grooming tasks (e.g. applying makeup) while driving.
  • Cognitive distractions—These distractions stem from motorists taking their minds off driving. Primary examples of cognitive distractions include talking on the phone, conversing with vehicle passengers or daydreaming while driving.

Regardless of type, distracted driving is a serious safety hazard that contributes to a significant number of accidents on the road. In fact, the National Highway Traffic Safety Administration reported that, in 2019, more than 3,100 people were killed and 424,000 were injured in crashes involving a distracted driver — equating to approximately eight deaths and 1,100 injuries per day. Considering these findings, it’s crucial to take steps to prevent distracted driving.

Some tips to prevent distracted driving include:

  • Don’t use your cell phone while behind the wheel. Avoid texting, checking notifications or making calls while driving.
  • Avoid multitasking. When you or your employees are behind the wheel, all attention should be on the road.
  • Plan ahead. Before starting your drive, ensure that everything you need is ready to go. For example, if you need route navigation, ensure that your navigation system is programmed prior to driving.
  • Ensure that you or your employees are well-rested. Fatigue increases the chances of a driver becoming distracted.
  • Pay attention to the road. Focus on the road and be aware of any potential hazards.

For employers, implementation of telematics and dashcam programs can assist in reinforcing safe driving practices and adherence to company policies related to operating motor vehicles. As an added benefit, dashcam footage is often utilized by insurance companies to assist in the claim process when incidents occur.  Employers interested in exploring telematics or dashcams as a solution to supplement their fleet safety program should contact Western Growers Insurance Services to discuss available options.

For more helpful information or workplace safety training, including distracted driver prevention training, please contact Western Growers Insurance Services.

Western Growers Insurance Services is a full-service insurance brokerage offering a suite of insurance products and tailored risk management solutions to agribusiness and related industry members. For more information or assistance, please contact Ken Cooper, Director Risk Strategy for Western Growers Insurance Services, at [email protected].

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Quick Reference Available for Leafy Green Food Safety Professionals

March 28th, 2024

The Western Growers Science team has created a quick reference primer for leafy green food safety professionals on the design considerations of a leafy green preharvest tissue testing program.

What can a preharvest sample tell you about risk, when should you apply the testing and how do you drive more value from your test result?

Find the Primer: Preharvest Pathogen Testing of Leafy Green Product here.

For questions or comments, please contact Joelle Mosso, AVP Science Programs at [email protected].

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New Voices of the Valley: Food Safety Scientists’ Perspective on Buying Produce for Their Families

March 26th, 2024

Western Growers food safety scientists Sonia Salas, Associate Vice President, Science & Technology, and Joelle Mosso, Associate Vice President, Science Programs, discuss their perspective and insight when it comes to buying fresh produce for their children.

Hear about how to get information from trusted sources regarding food safety from two food safety experts as well as what the future holds for food safety in fresh produce. Listen here.

Please rate and review Voices of the Valley on Apple Podcasts or participate in the conversation on X at @WesternGrowers to be entered to win a Western Growers Stanley mug!

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Craig Johnson, Vice President of Agricultural Operations for Del Monte Fresh, Visits CIT

March 25th, 2024

The March Lunch & Learn at the Center for Innovation and Technology featured Del Monte Fresh’s Vice President of Agricultural Operations, Craig Johnson.

Johnson shed light on the intricate dynamics of farming year-round and its implications on the industry and eloquently emphasized the significance of understanding seasonality in agriculture, highlighting how it shapes the rhythm of farming operations and market demands. He elucidated the challenges and innovations required to maintain a consistent supply of fresh produce throughout the year, navigating fluctuations in weather patterns, pest pressures and consumer preferences.

Johnson’s insightful discourse underscored the essential role of sustainable practices and advanced technologies in ensuring a resilient and reliable food supply chain, ultimately contributing to the vitality of both the agricultural sector and the global community it serves. He talked about the automation solutions that his growers have already incorporated into their growing practices for the upcoming Salinas season and how sustainable farming might be a third category of produce sales in the grocery store, next to organic and conventional; retail customers are now requesting sustainability from their grocers.

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Western Growers Science and Innovation Team Members Visit Australia and New Zealand

March 20th, 2024

Western Growers Dennis Donohue, Center for Innovation and Technology Director, and Jeana Cadby, Environment and Climate Director, visited Australia and New Zealand to meet with growers and scientists to discover and understand opportunities to collaborate and learn about sustainable farming practices for vegetable production.

Highlights of the trip included walking through the new Kiwifruit varieties under development at the KBC (kiwifruit breeding center), learning about invasive species protection measures at Plant and Food Research, getting a tour of the latest tools and innovative technologies with Agritech New Zealand and sharing Western Growers initiatives while attending the biggest ag tech event in the southern hemisphere, evoke-AG.

This trip was one more step in aligning to find solutions to global agricultural challenges.

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Western Grower & Shipper March/April Digital Issue Available Now

March 19th, 2024

The March/April 2024 digital issue of the Western Grower & Shipper magazine is available now.

This issue includes the articles To Be Disfavored by Sacramento; Groundwater: A Tale of Two States; My Cross-Border Medical Experience in Mexico, Courtesy of WGAT; California’s Ag Overtime Law, Good Intentions, Unintended Consequences and more.

The cover article features A.G. Kawamura for an article where he discusses efforts to prevent food waste.

Click here to read more.

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