January 4, 2016

The UFW’s Back Office Support

In 2011, the National Labor Relations Board (NLRB) ordered all employers (both union and non-union) to post notices informing employees of their rights under federal labor law.  The NLRB claimed the “Poster Rule” was necessary to help employees understand their rights.

Business groups brought legal challenges, arguing the NLRB had exceeded its statutory authority and was biased in favor of labor unions.  The rule was blocked and ultimately invalidated by two U.S. Courts of Appeals rulings.  In January 2014, the NLRB gave up, presumably assessing its chances of success before the U.S. Supreme Court to be slim as poster paper.

Fast forward to 2015.  The California Agricultural Labor Relations Board, led by Chairman William Gould who is a former chairman of the NLRB, is doubling-down on the NLRB’s flawed attempt to “educate” workers.  But instead of requiring employers to hang an 11 by 14 inch poster, the California Board is proposing to go much further, compelling agricultural employers (both union and non-union) to grant ALRB agents access to their private property for purposes of “educating” farmworkers about their rights to unionize.

Last September, the ALRB held hearings in Fresno, Salinas and Santa Maria on the proposal, and as expected, industry representatives voiced unanimous opposition while the UFW registered staunch support.  Many farmworkers testified in opposition to the board’s proposal.  They testified about their distrust of the ALRB, an agency that has repeatedly sided with the union and against the interests of farmworkers in recent years.  This should come as no surprise to anyone who has been following the protracted Gerawan Farming v. ALRB saga.

The ALRB staff subsequently concluded that the board has the authority to impose a rule allowing ALRB staff to take access on the worksite for purposes of “advising, notifying or educating” employees about their rights and obligations under the Act.  The agency’s justification for the proposal cites the “influx of a new and growing group of (indigenous) farmworkers with little or no understanding that they have any rights under law and the ineffectiveness of traditional methods for education engaged in by the Board to reach significant numbers of farmworkers.”

ALRB staff has now introduced a draft proposed regulation to create a new ALRB “Worker Education Unit” (WEU).  This is ostensibly to allay employers’ concerns about the obvious conflict of interest when the prosecutorial and enforcement staff of the board are the same ones doing the educating.  To say we lack confidence in the integrity of this supposed firewall is an understatement.

The proposal requires that upon the filing (by just two employees) of a notice seeking ALRB education, the ALRB regional office must determine whether a notice of intent to take access or notice to organize is on file.  If the regional office determines that no union is involved, the Concerted Activity Director must serve the notice on the employer who must, within 24 hours, provide the location of the employer’s fields, the number of employees employed at that time, and the employer’s peak seasonal employment—information that the union would find very helpful when attempting to organize workers.

Despite unanimous industry opposition, and with ardent union support, last month the ALRB voted 3-0 to move forward with the rulemaking process.  Industry lawyers are confident that the board lacks the authority to implement the proposed regulation.  In the words of the Fourth U.S. Circuit Court of Appeals, the national act “only empowers the board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request.” (Emphasis added.)

We believe a court reviewing the ALRB’s proposal would reach a similar result.  And like the NLRB poster challenge, there is ample evidence of pro-union bias that taints this agency.  Exhibit 1 is the board’s abject refusal to count the ballots in the Gerawan Farming workers’ decertification election despite the clear preference of the vast majority of the workers in that case.

Let’s be clear about why the ALRB is pursuing this rule: The UFW has lost its relevance.  The farmer-farmworker relationship has evolved since the 1960s and 1970s, and the UFW can no longer deliver value to farmworkers in exchange for a compulsory payment of three percent of the workers’ wages to the union.  Because of that, the UFW has failed to persuade workers to join the union.  So in a bid to remain viable, the UFW wants the state ALRB to use its police powers to do for the union what the union has failed to do for itself.

It is pathetic that the state of California so willingly steps forward, beyond its authority, to act as an agent of the union.  The ALRB was created as an investigatory and adjudicatory agency, charged with protecting the rights of employees, employers and unions alike.  Nowhere in the law is the ALRB authorized to use the powers of the state to advance the interests of unions or employers absent a properly investigated and adjudicated dispute.

In appointing Mr. Gould as chairman of the ALRB, many of us hoped and believed that Governor Jerry Brown was seeking to return the agency to its core mission and restore its independence in investigating and resolving disputes.  If the ALRB continues to push this euphemistically-named “worker education rule,” we will know that our hope was misplaced.

The industry will have to come together quickly to oppose this union-backed, government-sanctioned encroachment upon private property rights.  If the broader business community could successfully derail the NLRB’s attempted overreach with a mere poster, we can stop an initiative that is just as wrong-headed but vastly more intrusive. Western Growers stands ready to lead the charge.