Ag Employers: Prepare Now for Union Card Check Law

AB 2183, the UFW-sponsored bill that guts the secret ballot process for farmworkers, is scheduled to take effect Jan. 1, 2023. Ag employers should begin preparing now to ensure they are not targeted for unionization.

The bill signed by Gov. Gavin Newsom provides two options for agricultural employees to unionize: an election process with mail-in ballots in which growers must agree at the beginning of the year to maintain union neutrality or be subjected to the “card check” process, in which a majority of employees sign cards indicating they support union representation.

While signing AB 2183, the Governor announced an agreement with the bill’s proponents that substantial changes would be made to the new law in the 2023 Legislative Session to address the Governor’s concerns about mail-in ballot integrity.  However, rather than addressing his concern by vetoing the bill and insisting that the bill sponsors introduce a bill with true ballot integrity measures, the amendments that were agreed upon simply discard the mail-in ballot process altogether. The deal to amend the law next year also caps the number of card-check unionizations on farms at 75 from 2024 through 2027, as the bill sunsets on Jan. 1, 2028.  There is no guarantee that the agreed upon amendments will ever move through the legislature to the Governor’s desk.  

Given that AB 2183 is set to be enacted on January 1, employers should prepare now by considering the following actions:

• Resist Union Neutrality.  Make no mistake, a “Labor Peace Compact” is just “Forced Union Submission.” Under the new law, employers can choose on an annual basis (by 30 days before January 1 each year) to enter into a “labor peace compact,” preventing the employer from taking lawful actions commonly used to discourage employees from voting in favor of union representation.  Specifically, employers who enter the compact must agree to not speak for or against union representation; must allow labor organizations access to employees on company property, to not hold “captive audience meetings” where unions are discussed, to not disparage a union in communications to employees or the public, and to not express a preference for one union over another. Employers who do not declare neutrality would not be held to additional restrictions but allows unions to gin up farmworker representation through the “card check” or similar process. 

Employers are strongly urged not to declare union neutrality. It will not buy peace from the union, it will do just the opposite, putting a target on the employer’s back. The union will have a list of names and addresses of all the employers who have agreed to the self-imposed gag rule. Employers will typically want to explain to the employees such things as the prohibition from opting out of the union, the initial and recurring cost of joining the union, the cost of the union’s benefit plans, the union’s bylaws, and impacts on morale, among other things. Declaring union neutrality prevents these conversations. Also, there is no guarantee the so-called benefits of mail-in ballots (which are illusory anyway) will remain for long, since Labor’s agreement with the Governor would delete this section from the law.

• Educate Your Employees Now. The Agricultural Labor Relations Act says employees have the right to join a union or not join a union. Not only does AB 2183 deprive workers of the right to a secret ballot election conducted by the ALRB, it also impacts their ability to make an informed choice – especially if the employer elects neutrality. It’s incumbent upon management to educate and inform their employees.

That education should occur consistently and on an ongoing basis on multiple fronts. First, you should be communicating with your employees regarding your commitment to providing competitive pay and benefits – and follow through with that commitment. If you already pay well and provide desirable health and retirement benefits, among other employee benefits, you are taking away one of the union’s most compelling value propositions. Next, you must ensure your managers, supervisors and foremen treat all employees respectfully. Bad supervisors are the Achilles Heel for many employers who become targeted by unions. Be committed to an open communication policy, so that employees have various avenues to report issues, concerns, and complaints – and not feel compelled to seek assistance from a third party interloper, like a union. Finally, employees must understand that signing a union interest card, or showing any interest in the union whatsoever, could result in the union being installed as the employees’ exclusive bargaining representative without the workers ever being given the opportunity to cast a vote for or against the union. All of this must occur before the union comes after you.

Western Growers and our association partners will be putting out Train-the-Trainer educational materials to help managers and supervisors effectively communicate to workers before a potential union surge in 2023 and beyond.