Harvest of Power
In 1975, Cesar Chavez and his United Farm Workers union pushed through an unprecedented labor law in California. Now they are reaping the rewards in oppressive control over farming and farm workers.
It was mid-morning on October 1, 1981, and Peter Solomon, a young California farmer, had 24 hours to decide what to do. Over half of the 40-odd workers at his small cattle and feedlot ranch in southern California had walked off the job, irate that an election they'd held to oust the United Farm Workers union had been blocked by state labor officials.
Solomon worked out a 24-hour deal with the workers to continue vital jobs like feeding the cattle while he considered their demand: rip up the union contract, or lose most of his work force to an all-out strike. "I don't really want to violate the law," he told the workers picketing the entrance to his Cattle Valley Farms, "and the law says I've got to continue honoring the contract." But when Solomon emerged from a meeting with his workers the next morning, he announced that he 'would side with them in ending recognition of the United Farm Workers as their bargaining agent. The union immediately demanded that Solomon fire the workers it supposedly represented—a demand that he ignored.
Nearly two years and half a million dollars in legal fees later, Peter Solomon is still fighting numerous charges of "unfair labor practices." Should he lose, he will have to pay hundreds of thousands in "make-whole," and his workers' election to throw out their union will be declared null and void.
Something is wrong in the state of California. Eight years ago, Gov. Jerry Brown signed into law a unique piece of legislation intended to protect the rights of the state's farm laborers and "to bring certainty and a sense of fair play" to farming operations. Instead, the Agricultural Labor Relations Act of 1975 has embittered farmers and farm workers alike as they have seen their rights ignored and eroded in the name of this controversial farm-labor law.
Why has this law changed the face of agriculture and the fate of farm workers in the country's leading food-producing state? Under every other piece of labor-relations legislation in the country, the role of the law is to remain neutral between competing interests, protecting the rights of both employees and employers. But California's Agricultural Labor Relations Act (ALRA) was undeniably tailor-made for a specific union—Cesar Chavez's United Farm Workers. And the evidence is mounting that the state agency set up to administer the law has repeatedly used its power to promote that union—often at the expense of farm workers.
The law itself, in the words of several economists who have studied it, gives to farm labor unions "privileges that the most dictatorial government could only hope for." Add all this up, and the result is that the United Farm Workers union has been able to gain unprecedented, inordinate control over its members and over the business decisions of farmers.
These are serious charges about an organization and a law that have the proclaimed goals of bringing dignity and justice to farm workers and peace to labor relations. Many farm owners and growers' associations have been claiming bias in the law, unfair administration, and unjust control by the UFW ever since the ALRA was passed. I have spent some time investigating these issues, and I have found substantial indirect and direct evidence for the charges, evidence that can be evaluated independently of any growers' interests.
When the National Labor Relations Act was passed at the federal level in 1935, it excluded farm labor. California's ALRA specifies the right of farm employees to unionize and bargain collectively and prohibits "unfair labor practices" on the part of employers and unions. The law is administered by the Agricultural Labor Relations Board (ALRB). ALRB agents at regional offices conduct union representation elections, investigate and rule on unfair labor practice (ULP) charges, and order remedies when the charges are upheld. Decisions may be appealed to the Board of the ALRB, whose five members are appointed by the governor with the advice and consent of the state senate.
Has the ALRB, in implementing the ALRA, been biased in favor of the United Farm Workers (UFW) instead of acting as a neutral arbiter? Many people are suspicious of charges of bias when leveled by farmers or competing unions. But when disgruntled UFW members claim bias, the matter must be taken seriously.
When Peter Solomon's workers went out on strike in October 1981 to force the issue of their union representation, one of the workers' picket signs declared:
UFW = ALRB
ALRB = UFW.
And workers in other cases have told me that their attempts to vote out the UFW have been frustrated at every turn by the ALRB—and by law, only ALRB-conducted and -certified elections are valid.
Transcripts I have obtained of recent sworn testimony by former ALRB agents lend credence to the suspicion that the law is not being administered impartially. In a pretrial deposition in a federal court case, one former agent explained that at several regional offices
it was customary…for the UFW to be there using typewriters, using phones, just being part and parcel.…I mean they were there all the time and they would review the files with the [ALRB] examiners and people and, you know, say, "Well, you should go there now, or you should do that."…It was almost as if it was their office.
Another former agent, when asked about the type of people hired to work for the ALRB, replied:
Basically there were a lot of people who were socially active, people who had been prior UFW members, who were UFW people.…You were rewarded for furthering the UFW cause.
And when asked whether a particular ALRB agent had shown bias in favor of the UFW, this person testified that bias was shown by the agent's
attitude, the way he answered the phones in the regional office…with UFW slogans.
It appears that this involvement of the UFW has influenced the administration of the law from beginning to end. For example, in order for a union to organize the workers at a given farm, the proper procedure is to file a notice of intent to organize with the local ALRB office. This notice is to be accompanied by authorization cards signed and dated by at least 10 percent of the workers then employed at that farm.
But information pieced together from my own interviews with workers is consistent with testimony by one of the former agents that the UFW would simply hand in a large number of authorization cards to be used whenever the union files a notice of intent to organize:
I noticed there was a big tub with literally hundreds of authorization cards by the United Farm Workers Union, and I kind of thought that was something very unique.…
Q: …What was unique about that?
A: Well, the proper procedure [etc.]. And this wasn't happening.
Q: What did you observe happening?
A: That the UFW would just go in and file these certification petitions on the basis of this bank of cards that were banked with the ALRB.
When this agent raised the issue with his supervisor at the regional ALRB office, he said he was told "that it was a totally legitimate process and I should keep my mouth shut." He then approached the ALRB'S general counsel about the matter.
Q: What did he say?
A: Number one, that it wasn't any of my business and I shouldn't be taking a position like that and as far as he was concerned, that the burden placed upon the employers was inconsequential in relation to the advantages that the workers in the union could gain.
Another agent revealed an ALRB practice with respect to the lists of all employees' names, addresses, and phone numbers, which are to be supplied by employers once a union has filed a notice of intent to organize. According to the agent, some employers were objecting to giving the information as an invasion of employees' privacy. (And in fact, some workers have resisted this requirement, fearing union harassment.) So the ALRB would conduct what this agent called "guerrilla raids" at harvest time to compile the lists by talking to each employee individually.
…when you went out there and talked to these people then you would take each person one at a time and sit them down and ask them, "What's your name, what's your address," and explain to them what the list is for. It's kind of understood that you just want to take up as much time as possible at each ranch.
Again, the question of propriety was raised, but the agent recalled in his testimony that an ALRB official responded:
"Well, the important thing is to get the lists…and then if we are found out later, you've got some state immunity and we have accomplished the task."
This ALRB agent also testified that the raids were coordinated with the UFW so that "union representatives were always there when we went out to the field," and that the UFW told ALRB agents they would all be fired if the raids weren't conducted. When questioned, the agent confirmed:
Well, that pressure was kind of always there. I mean, it became more evident at other times and in this case, yeah we didn't get the lists pretty soon, you know.…
The UFW files charges of unfair labor practices (ULPs) against growers the way some people eat popcorn. Once a ULP charge is filed, the next step is for ALRB agents to make an investigation, resulting either in dismissal of the charge or in the issuance of a complaint that eventually goes to an ALRB hearing. The impartiality of the procedure may be gleaned from the following sorts of sworn testimony from former ALRB agents:
…the regional director there…wouldn't let me go to do investigations unless I was accompanied by a UFW agent, On numerous times, he ordered me to take a UFW agent.
Q: And do you believe or is it your conclusion that is not appropriate?
A: Yeah, I believe it's inappropriate. I think I should be able to make a neutral investigation and make a representation on my own observations while being a field examiner.
Q: Did you discuss this with [the regional director]?
Q: What was his answer?
A: Follow instructions and cooperate with the union.
Q: And was it your observation that cases were…assigned to field examiners based on the political or pro-UFW viewpoint of the field examiner?
A: That's correct.
If a formal complaint of an unfair labor practice is filed by the ALRB against the employer, his attorneys have the right of discovery, that is, the right to see the specific charges and evidence against their client. But testimony from former ALRB agent Elias Munoz before the ALRB's five-person Board last year went as follows:
Mr. Munoz: But when you're talking about discovery before the General Counsel, for all practical purposes…the employer does not have discovery. It is routine practice, I know…you prepare two files when you're doing an investigation. You prepare the real file that you and the union look at, then you prepare the other file that respondent will eventually get when you go to hearing. And even with this other file, before you go to hearing, you make sure you have purged it.
Board Member Waldie: How do you know that, sir?
Mr. Munoz: Five and a half years with the Board, doing the very same thing.
Board Member Waldie: Did you do the things you've talked about?
Mr. Munoz: Yes, sir, that was policy.
Board Member Waldie: Did you produce manufactured witnesses [as you said earlier]?
Mr. Munoz: The union produces manufactured witnesses.…we tell the union that we need witnesses for this; they produce witnesses, and they tell us exactly what they need to say. Some of them may be legitimate.
It is hardly surprising, in the light of this record, that California's farmers have been complaining bitterly about pro-UFW bias in the ALRB. The UFW has consistently been the initiator of over 90 percent of the unfair labor practice charges that the ALRB deems worthy of following up with legal complaints. And once complaints are issued, growers hold little hope of ever proving themselves innocent of UFW charges, regardless of the facts.
It would be impossible to list all the unfair labor practices of which a grower can be found guilty. I interviewed one grower who, to comply with the ALRB requirement that he provide the union with a list of all his employees along with their current home addresses and phone numbers, had xeroxed the information from his employee payroll cards. He was served a ULP charge because three of his employees had listed a post office box as their residence address. He called the three employees into his office, but they refused to give him a home address, explaining that they didn't want to have their families harassed or intimidated by UFW organizers. At the grower's request they appeared in front of ALRB officials and explained their refusal. The ALRB agents stuck by their issuance of a ULP.
In contrast, ULP charges against the UFW are frequently dismissed. One example occurred in connection with the 1981 Cattle Valley Farms strike when the workers were picketing Peter Solomon because they wanted out of the UFW.
The law explicitly protects such worker activities (not just union activities) from surveillance, particularly intimidating surveillance. Yet while these workers were picketing the entrance to the farm, a car of UFW union men pulled up and one man leaned out of the window and started taking pictures. One of the workers grabbed his camera and took pictures of the UFW man taking pictures of their "protected" activities. These pictures were deemed not to be sufficient proof of "unlawful surveillance" in the ALRB's investigation of a ULP charge filed against the union by the workers. Yet the union has made several ULP charges against Solomon for unlawful surveillance, and these have been deemed worthy of going to trial even though they are based solely on allegations that Solomon or one of his supervisors was seen near the workers when they reportedly were talking about union affairs.
That the ALRB has promoted the UFW even at the expense of farm workers is most evident in "decertification" cases, where employees are attempting to opt out of the UFW.
The ALRB conducts an extensive, multi-language worker education effort. In interviews with field workers, I have found that to many of them the ALRB agents are not unlike the FBI, INS, Uncle Sam—the United States Government, all in capital letters. so when ALRB agents come into the fields to conduct "worker education" meetings on how they can join a union (usually at harvest time, when the crews are at their yearly peak, including illegals), many of the workers take this as government telling them to join the union.
The ALRB's effort to communicate is ostensibly designed to assist workers not only in voting in a union but also in voting out a union should they become disillusioned with the union's efforts and authority over them. Yet in a 68-page English/Spanish handbook distributed by the ALRB to farm workers, 23 pages are devoted to describing how to vote in a union, but there is not even one sentence on how to vote out a union.
I have interviewed a number of farm workers who had attempted to decertify the UFW. Invariably there is an air of tension during the interviews despite my promising not to use their names.
In one such interview there were about 20 workers (most spoke at least some English, some spoke it quite well), and I asked them to start at the beginning and tell me how they went about trying to get a decertification election held.
We went down to their office [the local ALRB office] to get the paper so we could get the names signed on it [signatures on a petition to have the ALRB hold a decertfication election], and they said they didn't have them, that we should come back in a few weeks. We did and they got us the paper and [we] got the names on it. When we went back, they told us we had used the wrong paper. But we used the one they gave us. They gave us a different one to do over again, and then they asked us why we wanted to get out of the union and who else wanted to and questions like that.
There was mutual agreement, "Yeah, that's right."
Their story did not surprise me—I had been told of it in other interviews, and other reporters have turned up the same pattern. (In a bizarre incident recently, Neal Templin of the Imperial Valley Press reported the complaints of farm workers at a citrus ranch that the local ALRB office had refused to hold a decertification election despite their filing of a petition. The day after the article was printed, the UFW filed a ULP charge against the reporter, claiming that he was an "agent" of the employer and was attempting to interfere with the workers' rights.)
I asked the ALRB how many decertification elections have actually been held in nearly eight years under the ALRA. There have been only five or six. It is my guess that UFW intimidation accounts for this as much as ALRB foot-dragging.
After the workers I was interviewing had described their attempts to file a petition, one of them added: "UFW guys there [in the ALRB office]—they're always in there. They drive around with them [ALRB agents] in their cars [state cars] all the time."
I asked if during this delay period there had been any trouble. Sure, they said, broken windshields, threatening phone calls, and "things like that." One worker, a slight-built young Mexican, said his pregnant wife was told that if she wanted the baby to have a "healthy" father, he'd better vote for the union, not against it. "She cry a lot," he added. Another worker wouldn't talk to me, but one of the others pointed to him and said he was an illegal and "he was told that if he voted against the union he'd be back in Mexico real quick like." Another pointed out, "They do that all the time." One worker told me, "They killed my dog." That was all he said. He abruptly turned away and left.
I asked if they knew who was doing these things. A few smiles, but no answers. "Why don't you go to the police or sheriff?" No smiles, no answers. I asked the one who had done most of the talking if he were to be ordered to testify in court, would he tell the court what he had told me? "No," was his carefully slow answer. "You would lie?" "Yes." He lowered his eyes and never spoke to me again.
Fear of union violence is enough to keep most such workers in line. Speaking out against the UFW's "fear tactics" in 1979, former UFW member and union negotiator George Moses told a reporter: "Most members are afraid to speak out because they're afraid of retaliation." Moses, who had been fired at the behest of the union when he opposed a strike order, explained: "They'll tell you, 'I'll burn your house down' and it scares you because you know they'll do it. They've done it before."
Such tactics are nothing new among organized labor, but they hardly fit Cesar Chavez's or the UFW's media image. No one in the know realistically denies what is going on, but the shocker is that the UFW now has the legal force—sometimes subtle, sometimes blatant—of the ALRB behind many of these tactics.
Nor is the frustration of decertification attempts limited to obstacles placed in the way of ever holding an election. ALRB policy is that no decertification election results can be made valid (certified) until any outstanding ULP charges against the grower have been settled. In fact, the ALRB immediately impounds the ballot box and does not count the votes until the ULPs have been decided. Some growers maintain that the union files ULPs against them as "insurance," for if the grower is found guilty of just one ULP—and the odds are he will be—the decertification election is declared null and void and the ballots are destroyed. All of this usually takes over a year, sometimes as long as four or five years under appeal. In the meantime the workers must remain union members, and union dues, fees, and mandatory contributions to the union's political action fund continue to be deducted from their paychecks. From the first decertification election in 1976 up to the present, the ALRB has not certified a single election to unseat the UFW.
In essence, farm workers have been legally and effectively disenfranchised. A few workers are getting so fed up with the rough-shod way the UFW and the ALRB are walking over them, they've tried to fight back, but their fight is frustrated by today's legal complexities. About all that is left for disenfranchised workers is to get angry.
Peter Solomon's workers went out on strike. At the M. Caratan ranch, the workers, already frustrated by ALRB obstruction in getting the correct papers for filing the decertification petition and completing them to the ALRB's satisfaction, became so angry when they learned their ballots were to be impounded and not counted that they beat up some of the ALRB agents conducting the election.
And while workers are frustrated without much legal recourse, growers estimate that the cost of fighting UFW charges, in legal fees and consumed time, has run into the multimillions of dollars. More time is spent with lawyers, they complain, than is spent managing their farms.
Growers can appeal ALRB decisions in appellate courts and then on to the state supreme court. But almost 95 percent of the ALRB decisions have been upheld when appealed to the courts.
The Los Angeles Times in a recent editorial called this statistic "significant" in considering growers' charges of ALRB bias. But it is essential to realize that this standard of review is weighted in favor of the agency because it is the legislature's intent, noted the California Supreme Court in 1979, that the ALRB serve as "one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect." In other words, unless there is a technical legal reason for the court to review the entire voluminous record of an ALRB hearing, the court is all but mandated by the 1975 ALRA to accept ALRB rulings.
In this light, another 1979 court case would seem to be far more significant than the "95 percent upheld" figure. Sunnyside Nurseries had appealed an ALRB ruling, and because the UFW's briefs referred only to the board's findings for the asserted "facts of the case" and the Board, in turn, furnished no record reference, the court did find it necessary to review the entire record of the ALRB hearing. In this study of the record, the court observed:
without exception that every witness produced by the complaining union was expressly found "credible," or to have given "credible testimony," or to have "credibly testified," or to have testified "in a most credible way." On the other hand, also without exception, all of Sunnyside's material witnesses, many of whom were coworkers of the union witnesses, were expressly found "unconvincing," or to "lack credibility," or to be "unworthy of credit." On account of this absolute imbalance of "credibility" found by the [ALRB] hearing officer, every one of the numerous detailed factual issues presented to the hearing officer was resolved against Sunnyside.
The court dismissed most of the charges and set aside the sanctions ordered by the ALRB, one of which was to allow UFW organizers access to the employer's property in unlimited number for 30 days. The sanction, noted the court, "seems calculated only to intimidate or punish Sunnyside and to invite breaches of the peace, and encourage further industrial strife.…The sanction is patently unreasonable, and a gross abuse of discretion." But the case was returned to the ALRB for further proceedings.
The ALRB's biased implementation of the law appears to extend well beyond issues of fairness toward growers when charged by the UFW. Even though the ALRA includes a specific provision that the agency "shall follow the applicable precedents" of the National Labor Relations Act, the ALRB has frequently failed to do so (see sidebar, page 24). Consider, for example, the travesty of private property rights perpetrated by the ALRB in its policy on union access to the worksite.
The US Supreme Court has held that, in view of employers' private property rights, access for organizing purposes should be allowed only when the union does not have other reasonable means of communicating with employees. The Court held that it is irrelevant if these other means are more expensive or less efficacious. Under this standard, access has been allowed: to remote lumber and mining camps, to sailors aboard ship, and to employees in mountain resorts who live and work on the employer's premises.
Nevertheless, as soon as California's farm labor law was passed, the ALRB issued an emergency regulation providing union access to the worksite. The Board's rationale was that "unions seeking to organize agricultural employees do not have available alternative channels of effective communication." It is thus an unfair labor practice for an employer to deny union access (and, by the way, access to ALRB agents to conduct worker education—for which there is no NLRA precedent).
Even more drastic is the ALRB's position on union access to communicate with nonstriking and replacement workers during the tension-packed atmosphere of a strike. There is no NLRA precedent for such access, even in the public sector where the property is publicly owned.
During a particularly violence-laden UFW strike against the Bruce Church company in 1979, the union demanded access to nonstriking workers in the company's fields. Bruce Church refused, contending that it would have been an outright invitation for more violence and also that there was no ALRB regulation or order providing for such access during a strike. In the absence of any such ruling, it was logical that federal precedent would be valid as stated in the ALRA's legislative mandate.
The UFW immediately filed a ULP charge and then obtained a court order granting access. The company complied but filed a court appeal that reversed the lower court's ruling, because the lower court had no jurisdiction in the absence of an ALRB regulation providing for such access.
Regardless, when the UFW's charge of an unfair labor practice against the Bruce Church company was finally heard later that year by the Board, the company was found guilty. In other words, the company was guilty of violating a nonexisting regulation—and one that wouldn't, in any case, have been in accord with NLRA precedent.
It is clear that the ALRB's pro-UFW administration of California's Agricultural Labor Relations Act has by and large subverted the legislature's intention that "certainty and a sense of fair play" be brought to agriculture in the state. It is also clear, however, that much of the control that the UFW can now exert over both workers and farmers results from features of the law itself that give farm labor unions far more power than unions governed by any other labor law in the country.
Some of these features include:
- the timing of elections, which the ALRA specifies can be held only at peak harvest time, thus allowing more easily unionized temporary workers (who have less stake in the employers' long-term survival) to dictate the terms of employment of permanent workers;
- strikes at harvest time, when the grower is most vulnerable (the possibility of such strikes was one of the major reasons agricultural unions were not included under the NLRA in 1935);
- secondary boycotts (see sidebar, page 21), long outlawed by national labor law but allowed under the ALRA subject to ALRB regulations.
One of the most important and controversial of the powers conferred by the ALRA involves "membership in good standing." In the eyes of federal labor law, "good standing" essentially means that a worker must pay his union dues and initiation fees. If he does not, his union can declare that he is not a member in good standing and his union can declare that he is not a member in good standing and his employer, by virtue of his union contract can be forced to fire him. The ALRA, in contrast, states that the union can "prescribe its own rules" of membership that will determine when an employee must be fired.
The UFW's rules of membership are contained in a section of its constitution setting out over 30 thou-shalls and thou-shall-nots. Some of these rules are very clear. It is mandatory, for example, that a union member give one day's pay per year to what has been called the union's political slush fund, regardless of whether he approves of its various uses or not. Other rules are so nebulous ("conduct detrimental to the welfare of the union," for example) that one's guilt is almost at the mercy or whim of the union (and the accused is not allowed outside counsel). Certainly a union member is suspect and subject to losing his job if he opposes some of the union's activities or leaders. If the union so orders, he must participate in rallies, demonstrations, and strikes, or he could lose his job. No other labor law in the country gives a union this kind of power over its members.
Perhaps the most devastating aspect of the ALRA for growers is its "make whole" provision. When a grower is found guilty of an unfair labor practice (and this includes "refusing to negotiate in good faith"), California's law provides that he can be ordered by the ALRB to make whole his employees or former employees. This means that he must give the workers who were employed by him, or out on strike against him, back wages and benefits at rates set by the ALRB and calculated from the time the charge was filed until the time the charge is litigated and he has been found guilty, which could be years if the employer takes the consequently huge risk of appealing. The NLRA includes no provision for the make-whole remedy, and the NLRA has maintained that it lacks the authority to impose such punitive remedies that have the effect of forcing the employer to reach an early agreement with the union.
Back in 1979 the UFW went out on strike against 28 lettuce growers. It was a violence-ridden strike, and eventually 17 of the growers settled, but by December 1981 there were still 11 holding out and still under an ALRB charge of not negotiating in good faith. In a 340–1 decision the ALRB awarded 2,500 farm workers who had struck against these 11 growers anywhere from $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 purchase (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 codetermination—the joint 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 Bertuccio decision 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."
It is possible to argue that what is wrong in California is the administration of the ALRA, not the law itself. That it is the bias of the Board and its staff that is the core of the problem. But it can be more convincingly argued that as long as the law itself gives farm labor unions in the state dangerously precedent-setting power, it is the law that is the core of the problem and it is the law that ultimately must be changed.
Three Clemson University economists, Rex Cottle, Hugh Macaulay, and Bruce Yandle, argue in Labor and Property Rights in California (the new book referred to earlier):
One can view the CALRA [California ALRA] as an attempt to extend the NLRA to agricultural workers. But if viewed in a historical context of codetermination, the CALRA becomes much more than a law allowing fair labor practices within that state. Indeed, the CALRA can be viewed as a movement to socialize the agriculture industry and to redistribute profits from farmers of land and capital to organized labor.
"If someone asks you who wrote the labor law: the answer is Cesar Chavez," declared a union official at the union's 1982 convention. And the role of Chavez and the UFW in shaping and pushing through the ALRA in 1975 (and defeating numerous legislative attempts to reform it) is widely acknowledged.
Whether or not codetermination was the intent of Chavez and the UFW in securing the passage of the ALRA, the effect of the legislation is certainly to take California agriculture a long way down that road. And that effect, in fact, is not inconsistent with the goals of Cesar Chavez and many of his supporters.
Proponents and opponents of codetermination represent two conflicting sets of philosophical and economic ideas: whether the right of ownership (private property), freedom of contract (voluntary exchange), and limited government (government enforcing the rules as umpire, not making the rules as dictator) are the appropriate principles of political organization.
Consider, then, Chavez's belief that the grower is rich at the expense of the oppressed worker. For example, speaking at the UFW's convention in 1981 he declared:
I would not take one cup of coffee from a grower.…There's not a good one. I hate them. A few presents, a little talk, then the noose. That's how capitalism works.
And consider that Chavez, in image, deed, and rhetoric, is the perfect student of the socialist Saul Alinsky, under whose apostles he studied and worked for over a decade before embarking on his career as a farmworker union leader at the age of 35. He cut his social-organizer's teeth on the words of Alinsky, a self-professed radical:
Radicals want to advance from the jungle of laissez faire capitalism to a world worthy of the name of human civilization. They hope for a future where the means of economic production will be owned by all of the people instead of just a comparative handful.
The radical places human rights far above property rights.
And consider that among Chavez's close allies and biggest supporters are Jane Fonda and Tom Hayden, whose California political machine, the Campaign for Economic Democracy, is the organized expression of the socialist escape from the "jungle of laissez faire capitalism" and private property.
We've got to establish a socialistic economic structure that will limit private, profit-oriented businesses.
Ultimately we must concern ourselves with pulling out by its roots the decadence that controls our culture, the profit motive that controls our culture. But you can't do that unless you have power.
Liberals…talk glibly of a people lifting themselves by their bootstraps but fail to realize that nothing can be lifted or moved except through power.
By 1975 Cesar Chavez had achieved power. He was (and is) supported by a large segment of the church hierarchy with endorsements from the pulpit of his various boycotts, approval of his philosophical goals, and generous financial contributions. He was revered by the vast majority of the media and student activists. And the union had at its disposal a growing political slush fund accumulated from members' mandatory contribution of one day's pay a year.
All of this spelled v-o-t-e-s to certain politicians. With the UFW's political action fund, Chavez declared candidly in 1981, "we have…attraction for the politicians." And indeed, the politicians eagerly jumped on Chavez's bandwagon. Chavez used his power for the coup d'etat of all times, pushing through a labor law that has allowed his union to gain unprecedented and near-dictatorial control not only over farmers in the state but over UFW members. And as a result, as Profs. Cottle, Macaulay, and Yandle conclude, "Codetermination is alive and prospering in California under the protective shield of the CALRA."
Patty Newman is an investigative reporter and the author of several books. She was formerly the director of program development at San Diego's World Research, Inc., and is currently serving on the US Department of Agriculture's Advisory Commission. This article is a project of the Reason Foundation Investigative Journalism Fund. Copyright © 1983 by Patty Newman.
Secondary Boycott: Primary Strategy
"We cannot continue to battle our opponents in the 1980's with the strategies and technologies of the 1930's…or even the 1960's. The advent of computers and the development of sophisticated graphic messages…have revolutionized the advertising and political worlds. While we will not abandon our time-honored tactics of picketing and leafletting, we must also incorporate the new technologies in our boycott campaigns." Thus have Cesar Chavez and the United Farm Workers moved from their '60s and '70s boycott of grapes and lettuce, and later of Chiquita bananas, to an all-out attack on a chain of retail stores.
For four years the UFW has been urging consumers nationwide to boycott Red Coach lettuce, produced by Bruce Church, Inc., because the company will not accede to union demands in contract negotiations. (Bruce Church had been one of the few growers in California to negotiate a UFW contract without a good-standing clause, which gives the union the power to have workers fired virtually at will. But since 1979, new-contract negotiations have been stalled on this and many similar issues of union control, not on the level of wages or benefits.)
As part of its boycott, the UFW has been trying since 1979 to get Lucky Stores, a nationwide retailing firm with grocery stores in California, to stop carrying Red Coach lettuce. The firm has refused, citing the conviction that "it is totally improper for Lucky to take sides in a labor dispute which does not involve our own employees." Vowing to maintain "strict neutrality," Lucky has continued to stock Red Coach along with other brands of lettuce.
On June 30, 1983, Cesar Chavez publicly announced a million-dollar media and direct-mail campaign against Lucky Stores. A May 27 memo from Chavez to the UFW's executive board detailed the union's strategy of the '80s: Using census data and precinct maps, the union zeroed in on neighborhoods with a high proportion of Hispanic residents, pro-farmworker voters, and noncitizens. If there was a Lucky store in the area, the store and its competitors were visited to determine whether, based on such factors as prices and quality and parking, shoppers would be likely to turn to the competition. If so, the neighborhood was targeted for a mailing urging consumers not to shop at Lucky.
Eventually, noted the memo, "this campaign to 33 of Lucky's most vulnerable markets" (it began on May 19) will be expanded "with additional mailers aimed at non-Hispanic consumers (white liberals, blacks, Jews and union families) plus mailings which focus on consumer problems at Lucky such as meat weight and grade [and]…advertising gimmicks."
The union plans to back up the mail campaign with a series of radio and TV ads. So far, the media have apparently been reluctant to sell time for the UFW's spots, but Chavez assured the executive board that "we will harass the stations through boycotts directed at their advertising clients and court action."
Getting consumers to stop patronizing Lucky outlets is "not the primary purpose" of this boycott campaign, said Chavez in the memo. "The long term, residual benefit of the program is to alter the store's corporate image by associating something negative with Lucky." Exulted Chavez: "A new era has dawned for our union."
How long will Lucky be able to hold out? It is hardly surprising that California farmers are so fearful of the secondary-boycotting privileges accorded farm-labor unions under the state's Agricultural Labor Relations Act. Note: it is illegal for unions covered by federal labor law to engage in a secondary boycott of a firm—a union may urge consumers not to buy Brand X but not to avoid stores that carry Brand X. Under the ARLA, who knows?
One way to evaluate the record of California's Agricultural Labor Relations Board is to analyze how its rulings compare to precedents established under federal labor law. California's farm labor law incorporates much of the language of the National Labor Relations Act and includes a clause that the ALRB "shall follow the applicable precedents" of the NLRA.
In 1982 the California State University at Long Beach published a study, directed by Dr. Myron Lieberman, analyzing the decisions of the ALRB's five-member Board during its first four and a half years. What Lieberman found was evidence of "an unremitting interest group orientation relating to NLRA precedent."
Sometimes the Board claimed to be following precedent but did not. Sometimes it claimed on questionable grounds that precedent was not applicable. When the applicability of precedent depended on factual issues, the Board frequently resolved those issues "contrary to the weight of the evidence." And sometimes it concluded that precedent was applicable "despite specific statutory differences between the NLRA and ALRA on the issues involved."
All of these twists and turns, concluded Lieberman from his analysis of the cases, seemed to hinge on the outcome of the case for a specific interest group:
The study could not identify a single instance…in which an ALRB deviation from NLRA precedent redounded to the benefit of an employer. The UFW was the beneficiary of the overwhelming majority of instances of failure to follow NLRA precedent. Other unions, such as the Teamsters, benefited a few times; employers never did.
When Lieberman's study was released in April 1982, the media immediately dismissed it as a product of growers' contributions to the Cal State Foundation that sponsored his work. In fact, the Los Angeles Times headline for its story had nothing to do with the study's conclusions but read: "Major Growers Secretly Funded Study on Labor."
This reaction was typical of the state's media and came despite the fact that Lieberman is a solidly prounion person with a record of activity in teachers' unions. He stated in the study, and in earlier testimony before the state legislature, that neither he nor the study supported the conclusion that farm workers should be denied the right to unionize. Moreover, as explained by Stephen Horn, the president of Cal State Long Beach, in a foreword to the study, both the ALRB and the UFW had been asked to participate in the study but refused.
The failure to address the content of the study makes it difficult for someone not versed in legal issues to assess its accuracy. My own impression, after poring through the 800-odd pages of analysis that back up the 72-page published study, is that Lieberman's work is eminently fair and if anything, as he explains, understates the extent of ALRB divergence from NLRA precedent, because he looked only at Board decisions and not at the decisions of ALRB hearing officers that were never appealed to the Board.