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$25 to $50 million in back pay (the case is still under appeal). As pointed out by one of the attorneys involved, it is doubtful that the growers’ combined net worth amounts to the millions they will owe the workers if the courts uphold the ALRB.
And now (1983), several of the 11 have gone bankrupt, a few have negotiated a settlement, and 5 are still holding out with the clock still running. When all appeals are exhausted, and should they be found guilty, these five growers will have to make whole their former employees to the tune of some X amount of millions, as well as offering the workers their jobs back. Joining the others in bankruptcy is another alternative.
One interesting aspect of make-whole is the problem of finding these employees, who might be anywhere and working for who-knows-who in the elapsed years. The union often ends up taking
the money to relay to workers. If they can’t find the workers within 90 days, the union keeps the money for its own purposes or for whatever purpose might be negotiated with the grower. One company agreed with the union in settlement negotiations to make a contribution of around $250,000 to the UFw’s pension plan, and the ALRB approved this as satisfying all make-whole obligations. So much for the individual worker.
In less than eight years, the Agricultural Labor Relations Act has made it possible for farm labor unions-and specifically for the UFW-to gain significant control over farming operations in California. The UFW can assign jobs to union members. Through the good-standing provision, a feature of virtually every UFW contract, it can dictate which members will retain their jobs and thus, in effect, becomes the employer of its members. Under a negotiated contract, the UFW can tell employers whether or not they can retain workers from one season to the next. It can control such entrepreneurial decisions as what capital equipment to pur- chase (mechanization), what crops to plant, what pesticides to use (and when and where), and even whether and under what conditions to discontinue all or part of the employer’s operations. And through the ALRB’S rulings in successorship cases (if a farm is sold, the new owner must bargain with the same union), the control is clinched; for as several economists note in a new book, this “effectively unionizes the farmland instead of the land owner.” In short, conclude these economists, the UFW has gained in California the kind of voice in management decisionmaking that is the goal of advocates of codeternination- the oint sharing of management authority between labor and the owners of capital, via labor’s inclusion on a corporation’s board of directors.
Consider, for example, the ALRB’S requirement that the grower negotiate with the union before making any major decision that might affect the union workers. The 1982 Paul Bertucciodecision is a case in point.
Back in 1980 the garlic in one particular 40-acre field on the Bertuccio family’s farm became stained from heavy rains and thus was not appropriate for the fresh market. Bertuccio sold it to a seed company-“That way we could get something for it, only way to salvage a little of it,” Mrs. Bertuccio told me. The seed company picked the garlic by machine, and the ALRB upheld a UFW charge that Bertuccio took work away from the union people on his farm.
Bertuccio maintains that the workers affected were permanent employees and were given work in other fields. But the ALRB ordered back pay for the workers who didn’t harvest that garlic, arguing that they made less money with the alternative work. Because Bertuccio just went ahead and sold the garlic for seed without negotiating with the union, he should make up the difference.
The issue is who has the right to make management decisions. Harry Bernstein, writing about this case in the Los Angeles Times, reported:
In a far-reaching, precedent-setting decision, the California farm labor board has decided that growers must bargain “in good faith” with the farm workers’ union before making any major company decisions that will have a “significant” impact on union members.
The Agricultural Labor Relations Board thus set up, in effect a type of “plant-closure” ruling, giving workers a chance to change management decisions that could hurt them economically. Any reduction in farm operations that would result in layoffs and reduced earnings must first be discussed with the union, the board ruled.
For years, unions have fought without success to obtain legislation requiring non-farm employers to give advance notice of plant closures and force them to bargain over the impact of major corporate decisions.
Some European countries, including West Germany and Sweden, require corporations to bargain with unions over their corporate decisions, a system which has given European workers a major
voice in company operations. But this is the first time something comparable to the European plan has been instituted in the United States. Mr Bernstein is talking about codetermination.Six months after this “far-reaching, precedent-setting’’ decision, the ALRB, in a 3-to-2 decision on June 21, 1983, apparently reversed itself in a similar case. Cesar Chavez claimed that “they made
their decision based on politics.” It would seem that he is correct in view of the controversy the ALRB is facing with a new, Republican governor in Sacramento who is deeply concerned with the free-wheeling powers of the ALRB. But how significant it will be for future policy should be considered in the light of dissenting Board member Jerome Waldie arguing that “each case of alleged refusal of an employer to bargain about decisions that significantly affect workers should be reviewed separately.”