Laws: July, 2003 - Number #10

Mediation. UFCW Local 1096 on April 3, 2003 made the first request for mandatory mediation after failing to negotiate an agreement with the Hess Collection Winery. Hess asked the Agricultural Labor Relations Board to delay the mediation process until the Pacific Legal Foundation suit alleging that mandatory mediation is unconstitutional is heard, but in May 2003 the ALRB ordered mediation, and a judge ruled that the PLF suit could not go forward until the ALRB approves a mediated contract that Hess can then challenge. The PLF suit alleges that mandatory mediation "strips the parties of their fundamental right to collectively bargain without government interference." (www.pacificlegal.org/briefs/wgabrief.pdf). SB 75, introduced in July 2003, would change the mandatory mediation law to deal with some of the objections raised in the PLF suit, and also remove the sunset date, January 1, 2008, thus making mandatory mediation permanent. On July 3, 2003, the UFW asked the ALRB to mediate its dispute with Pictsweet Mushroom Farm. The UFW first won a contract at the Ventura mushroom farm in 1975 and maintained agreements with a series of owners until 1987, when United Foods bought the plant; there has been no contract under United leadership. In an April 2003 decision, the ALRB concluded that Pictsweet bargained in bad faith with the UFW and unlawfully supported the efforts of some workers to decertify the UFW as their bargaining representative. In an unrelated case, United Foods, Inc, Pictsweet's parent, agreed to pay $125,534 to 323 black and white applicants for jobs; the U.S. Department of Labor's Office of Federal Contract Compliance Programs concluded that Pictsweet preferred to hire Hispanics. When farm workers are awarded back pay and other benefits, it is often hard to find them. For example, Victoria Island Farms, owner of the property on which six migrant labor camps with "deplorable conditions" were found in San Joaquin County in 2000, agreed to pay $542,969 in September 2001 to settle a lawsuit filed by California Rural Legal Assistance on behalf of some of the workers who lived in the camps. Some 1,200 Victoria Island employees employed by JB Farm Labor Contracting of Stockton who worked in Victoria Island asparagus fields from 1997 through 2000 may file claims by December 31, 2003. However, as of May 2003, only about 100 workers applied for payments. Hoes and Belts. The California Occupational Safety and Health Standards Board is considering a request by worker advocates and labor unions to ban hand weeding in commercial agriculture, which would make California the first state to enact such a ban. In 1975, the use of short-handled hoes (el cortito) for cutting weeds and thinning crops was outlawed in California because the bent position required to use the hoe was found to cause permanent back injury for many laborers. However, the 1975 law did not ban hand weeding, and employers in strawberries, lettuce, nursery plants and broccoli have had workers pull weeds by hand or use a short knife to weed. Worker advocates failed to win legislative approval for proposals to ban hand weeding in 1995 and 2002, and appealed to Cal-OSHA in 2003. Some growers reportedly fear that hand weeding restrictions are a Trojan horse for a ban on hand harvesting, which requires workers to stoop in a fashion similar to hand weeding. Agricultural engineers are working on devices that combine GPS technology, video cameras, and micro-spray needles to do precision weeding in crops such as processing tomatoes, lettuce and cotton. The devices work by comparing pictures that are taken as the machine moves through the field with stored images of crops and weeds; only the weeds are sprayed with herbicides. Many vegetables and melons are harvested by workers walking behind slowly moving conveyor belts, putting heads of lettuce, broccoli or melons on the belts; workers riding on the machine pack them into cartons. Field packing allows the employer to control the speed of the machine, and many employers pay workers employed in such harvesting systems hourly wages, with perhaps a group bonus for faster than usual production. In 2003, strawberry pickers in Ventura county complained about the use of such mobile conveyor belts and platforms in the strawberry harvest; instead of walking to the end of the row with full trays of berries, workers can place full trays on the belt, saving them time. Growers using platforms pay $6 an hour plus $0.75 a tray, and workers pick an average nine trays an hour. Pickers without platforms are usually paid $1.50 a tray, and workers average of six to eight trays an hour. Some pickers complained that the mobile platforms allowed employers to set the pace of work, and that ending walks to deliver full trays kept them in a stooped position for such long periods that they had back pain. Health Insurance/Workers Comp. Estimates and surveys suggest that 10 to 50 percent of farm workers are covered by employer-provided health insurance in California. Some of the reasons for this wide range include employers not making distinctions between year-round and seasonal workers or direct hires and workers brought to the farm by FLCs (only year-round or direct hires may be offered health insurance). Workers may not distinguish between required workers' compensation insurance for on-the-job injuries and voluntary health insurance that covers off-the-job injuries and illnesses. California's $15-billion workers' compensation (WC) system is in trouble, charging employers some of the highest premiums in the US and providing injured workers with some of the smallest benefits, a maximum $602 a week for disabled workers. WC covers 127 million US workers, including14-million in California, and is a state-run program, so there are 50 different WC programs in the US. As private WC insurers leave California, the State Compensation Insurance Fund of California has become the state's largest WC insurer. The "no-fault" WC system is a tradeoff: employers agree to cover the medical costs for workers injured on the job, even if the company was not to blame. In exchange, workers give up the right to sue their employers for workplace injuries. California employers pay an average of $5.23 per $100 of payroll in workers' compensation premiums, a rate that has risen sharply in recent years because, employers say, of rising medical and legal costs and fraud. The average medical cost for injury claims in California was $35,200 in 2002, compared to $15,300 in the US. A California fish wholesaler reported paying $400,000 to cover 57 employees, an average $7,000 per worker each year. EEOC. ConAgra Foods Inc., the third-largest US food company, agreed in May 2003 to pay $993,000 in cash and offer jobs to 39 workers to settle an Equal Employment Opportunity Commission lawsuit accusing ConAgra of bias against disabled workers at an onion and garlic dehydration plant in King City, California. The 39 employees were not recalled to work in August 2001, after ConAgra negotiated an end to a two-year union strike that began under previous owners. The strike of 750 workers at the 800-employee plant began in July 1999, when Basic Vegetable Products owned the plant; ConAgra bought it in November 2000. SSNs. The Social Security Administration issued 110,000 mismatch letters to employers in 2001, informing them that names and SSNs of their employees did not match, 750,000 in 2002, and a planned 130,000 in 2003. SSA acknowledged that the mass mailings did not lead to corrections; instead, it appears that the SSA letters led to a reshuffling of unauthorized workers. In 2003, SSA will issue mismatch letters only if the employer reports more than 10 mismatches. Several Fresno-area men were arrested in April 2003 for stealing records from payroll processing firms to file $3 million worth of fraudulent Unemployment Insurance claims for 3,000 workers. The workers on whose behalf UI claims were made often did not know about the checks, which were cashed at local stores, including 2,200 checks for over $500,000 cashed at Primo's Market in Orange Cove. The University of California's Cooperative Extension program, the oldest in the US (started 1913), with offices in 57 of 58 counties, faces a 30 percent cut to its $50 million budget; there are 275 farm advisers and 150 crop specialists. Fred Alvarez, "UFW Requests Mediation," Los Angeles Times, July 4, 2003. Cindy Gonzalez, "Fewer employers getting worker 'no match' letters," Omaha World Herald, June 13, 2003. Fred Alvarez, "Field Machine Dispute Crops Up," Los Angeles Times, June 1, 2003. Melinda Fulmer, "Advocates for Farm Laborers Seek a Ban on Hand Weeding," Los Angeles Times, April 21, 2003. Reed Fujii, "Many Stockton, Calif.-Area Farm Workers Are Owed Back Wage Settlement Money," Stockton Record, April 4, 2003.