The Farm Labor and the ALRA at 40 involved over 120 participants in a UC Davis discussion of significant changes in the state's agriculture, farm labor market, and the interactions of farm worker unions and employers April 17, 2015.
Three major themes ran through the discussion, (1) the rising importance of hired workers to the state's fruit, vegetable, and horticultural specialty agriculture that now accounts for almost two-thirds of the state’s $45 billion in annual farm sales, (2) the shift in ALRB activities from mostly supervising elections to determine if farm workers want to be represented by a union to dealing with charges that employers retaliated against workers who were engaged in protected concerted activities when no union was present, and (3) the continued importance of immigration to the state's agriculture; over half of the state’s farm workers are unauthorized.
Speaker presentations, videos of the presentations, and additional materials are posted at: http://gifford.ucdavis.edu/events/
Agriculture and Labor Changes
California agriculture changed between 1974 and 2012, the years in which the Census of Agriculture was conducted. Farm sales rose a third in real terms over the past four decades, from $7 billin in 1974 ($34 billion in 2012 dollars) to $43 billion in 2012. The value of fruits and nuts, vegetables and melons and horticultural specialties such as greenhouse/nursery crops and mushrooms (FVH commodities) rose from about 45 percent of California farm sales to over 60 percent of the state's farm sales, emphasizing the rising importance of FVH specialty crops in the state's farm sales.
There were three other important changes. Firs was the switch from directly hired seasonal workers to relying on labor contractors and other nonfarm intermediaries to bring seasonal workers to farms. In 1974, 85 percent of labor expenses were for directly hired workers, and 85 percent of these directly hired workers were empl'g’oyed on the responding farm less than 150 days, that is, they were seasonal workers. In 2012, 65 percent of labor expenses were for directly hired workers, and 55 percent of directly hired workers were employed on the responding farm less than 150 days, that is, almost half of directly hired workers were regular workers employed more than 150 days on one farm.
The second change is the rise of contractors and other nonfarm entities that bring workers to farms. In 1974, 16 percent of the $1.2 billion in COA farm labor expenses went to contract labor; in 2012, it was 37 percent of $9.3 billion. The number of large employers with more than 500 workers, including farmers and FLCs, has increased by factors of four and five over the past four decades.
Third, there were significant changes in major commodities, including sharply shrinking acreages of cotton and peaches and rapidly rising acreages of almonds and strawberries. In virtually all crops, yields increased over the past four decades, sometimes by factors of three and four. Farm workers harvest pounds or tons of produce, and rising yields mean more hours of work unless technology improves labor productivity. Tons of fruits and vegetables harvested in California doubled from 20 million to 40 million between 1974 and 2012.
There have been important labor-saving changes over the past four decades, including labor-saving mechanization in grapes and specialty lettuces, chemicals and machines that reduce hand thinning and weeding, and more bulk bins and forklifts in fields. Some previously nonfarm jobs have moved to the fields, as with the field-packing of cantaloupes and many vegetables. However, rising acreages and yields of labor-intensive crops have raised average employment on the state's farms enough to offset labor-saving changes and keep average employment on the state’s farms remarkably stable at about 400,000 over the past several decades.
Because of seasonal peaks and the fact that many workers are employed only a short time, it takes far more than 400,000 unique workers to fill the average 400,000 farm jobs. During the 1990s, the ratio of unique workers employed sometime during the year on the state's farms to average or year-round equivalent jobs was 3 to 1. This ratio fell to 2 to 1 in 2012, suggesting 800,000 unique farm workers, including 85 percent for whom farm employment was the largest source of earned income.
The characteristics of farm workers have changed. In 1970, the share of foreign-born residents in the US reached an all-time low of five percent, and most farm workers were US-born. There were about as many Hispanic as non-Hispanic white farm workers in California in the mid-1960s. The share of foreign-born and unauthorized farm workers began to rise in the 1970s, but was still under half until IRCA was enacted in 1986, which turned allowed most farm workers to become Mexican born. The unauthorized share of farm workers, after falling briefly in the early 1990s with legalization, has been over 50 percent for the past two decades.
Recent changes among California'gs mostly Mexican-born farm workers include a rising average age of 36-38, a higher share of high school graduates (now almost half), and more settlement of farm workers, as evidenced by less than 10 percent migrancy (defined as moving more than 75 miles to hold the current farm job). Newcomers to farm work who did US farm work less than a year before being interviewed dropped from almost 30 percent in 2006-07 to less than five percent in 2012. The share of workers who are indigenous (often non-Spanish speakers from southern Mexican states) experienced a similar drop in recent years.
Two-thirds of crop workers are parents, most of whom have their children with them as they do farm work. Most farm workers are men (almost 80 percent) and almost half are from west central Mexico. Existing farm workers are more experienced, doing US farm work for an average of over a decade, and doing more weeks of farm work (an average 40 weeks in 2012) with just one farm employer (over 70 percent).
Average hourly farm earnings, as reported by farm employers to USDA, have been a steady 54 percent of the average earnings of production workers in manufacturing over the past four decades. The failure of farm earnings to rise is one reason for widespread farm worker poverty. In California'gs major farming counties, 20 percent or more of families have incomes below the poverty line and a similar share receive SNAP or food stamp benefits. In many cities with fewer than 20,000 residents and where the largest occupation is farm worker, per capita income is about $10,000 per year, the same as the per capita income of Mexico (the Mexican-born residents of cities such as Parlier would not have earned $10,000 if they had stayed in Mexico).
The slowdown in Mexico-US migration helps to explain the aging and settled farm workforce. Two developments could further affect farm workers. First, up to half of unauthorized farm workers may qualify for legal status under the Deferred Action for Parental Accountability (DAPA) program that would allow unauthorized foreigners whose children are US citizens or legal permanent residents and who have lived in the US at least five years to apply for renewable three-year deportation deferrals and work permits. In the past, legal status speeded exits from agriculture, even though personal characteristics such as limited English and education did not change. The share of IRCA-SAWs among crop workers fell from over 30 percent to 15 percent within four years, but some estimates suggest that normal attrition from the farm workforce accounted for more SAW exits than legalization during the early 1990s recession.
Second, if legalized farm workers exit for nonfarm jobs, it may be more difficult to recruit rural Mexicans to replace them. More rapid economic growth in Mexico and expanded government assistance programs for the poor as well as more Mexican youth completing secondary school mean that Mexicans who in the past would have migrated to the US to do farm work increasingly prefer nonfarm jobs in Mexico and the US. If unauthorized Mexico-US migration does not increase with the US recovery, and there is not a new guest worker program, the 2008-09 recession may mark a new era of less reliance on rural Mexican workers to do the state's farm work.
The combination of faster exits from an increasingly settled and stable farm workforce and more difficulty attracting new workers from rural Mexico confronts agriculture with several options:
Farm employers could try to retain experienced but aging direct-hire farm workers by improving supervision, making work easier, and adding work-related benefits (strawberries) or relying on FLCs to recruit workers (table grapes).
If a new guest worker program allowed foreign workers to stay in the US up to three years, employers could turn to China and other Asian countries for guest workers. These long-term guest workers could be hired directly by farm employers or cooperatives that move workers from farm to farm or become employees of super FLCs that arranged a series of jobs.
There could be a new wave of labor-saving mechanization and crop changes, with crops less able to mechanize or raise wages disappearing, as with the shift from raisins to almonds.
The reality is likely to be some combination of improved personnel management and higher wages, new guest worker programs, and mechanization and crop changes, including some changes hastened by ever-more expensive water.
The ALRA and ALRB
The ALRA was enacted in 1975 after a decade of protests that often required state and local intervention. Its purpose was “to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations.”
The ALRA and ALRB largely succeeded in moving farm labor conflicts from the fields to agencies and courts, but the law and its implementing agency remain controversial. Many of the issues that were most controversial before the ALRA was enacted, such as harvest-time strikes and secondary boycotts, have not had the effects that some hoped and others feared. The effects of the ALRB'gs access rule and the makewhole remedy for bad-faith bargaining are more important for individual farms rather than entire commodities and areas, and this individual rather than industry-wide effect of the ALRA was reinforced in 2002 with MMC.
The ALRB got off to a rocky start, running out of money during its first year of operations in 1975-76 and closing for almost six months before reopening for the 1976-77 year. The shutdown was lifted when farm employers agreed that the ALRA as implemented was better than the UFW-sponsored initiative Proposition 14 on the Fall 1976 ballot that would have required funding for the ALRB. The UFW'gs initiative failed by a vote of 38 to 62 percent, and the 1976 battle over funding made both unions and employers reluctant to try to amend the ALRA for fear of opening the door to unwelcome amendments.
During the fall of 1975, there were over 100 ALRB-supervised elections a month, over three a day. Unions won most of these elections, and the UFW and Teamsters were certified as the representative of workers in over 80 percent of ALRB-issued certifications. California agriculture was expected to become a mostly unionized industry, with economist Varden Fuller in 1978 predicting "conservatively" that unions could eventually represent 50,000 workers on 7,000 California farms.
It was easy to imagine unions turning agriculture into a construction or longshore-style labor market, with high wages and good benefits for seasonal workers. The general labor wage was $3.70 an hour in the UFW'gs benchmark vegetable contracts in 1978 at a time when the state’s minimum wage was $2.65, and the contracts offered a full range of health, pension, and other benefits, The UFW demanded a 42 percent increase in 1979, to $5.25 an hour, in negotiations to replace expiring contracts, 80 percent above the minimum wage of $2.90 and comparable to a $16.30 general labor wage today. Business Week on March 5, 1979 predicted that the UFW would use strikes "to win wage parity with industrial workers."
Late 1970s observers did not foresee the demise of unions and collective bargaining in agriculture. There is no census of union contracts, but one count shows a peak of 108 UFW contracts in 1979 and 30 a decade later. The variance in general labor wages in these contracts increased, suggesting fewer “standard contracts.” In 1978, the average wage of general laborers in 100+ UFW contracts was $3.40, and 90 percent of contracts had general labor wages of $3.25 to $3.55, a 30-cent spread. A decade later, the average general labor wage was $5.95, but the 90 percent range for 30 contracts was $5.20 to $6.70, a $1.50 spread.
Farm labor and the ALRB were buffeted by political, legal, and other changes in the 1980s and 1990s, with appointments to the ALRB and court decisions buffeting the agency. Republican governors brought new perspectives to the Board and GC, courts reversed some of ALRB decisions awarding make-whole compensation to workers in cases where employers were found to have bargained in bad faith, and many of the multinationals that were most vulnerable to secondary boycotts exited farming in California. Meanwhile, unauthorized migrants brought to farms by FLCs became more common.
UFW leadership changes in the 1990s preceded a major effort to organize workers employed in the fast-growing strawberry industry that resulted in one major contract (Coastal Berry, now Dole). However, the experience of the UFW and UFCW over the past two decades has often been marked by difficult organizing campaigns that resulted in close elections and years of litigation over objection elections. When bargaining led to first contracts, some had wage increases that just covered union dues, leading to worker dis-satisfaction and decertification efforts.
Instead of collective bargaining agreements, the UFW has been more successful persuading the legislature to enact laws to protect farm workers from heat stress and pesticides. California'gs legislature has had Democratic majorities between 1975 and 2015 except for 1994-96, and the growing clout of southern California Hispanic legislators has made the legislature responsive to UFW-expressed farm worker concerns. The UFW may continue to have more clout in the legislature than at the bargaining table.
MMC and Immigration
Unions complained about slow-moving ALRB remedial procedures and employers who were unwilling to raise wages in first and subsequent contracts in the late 1990s. They succeeded in amending the ALRA in 2002 (AB 2596 and SB 1156) to allow mandatory mediation and conciliation (MMC). Under MMC, there is bargaining for at least six months after a union is certified to represent workers. If the parties fail to reach agreement on a first contract or with an employer who was certified before 2003 and committed an unfair labor practice, either party can request the appointment of a mediator who first helps the parties to reach agreement and, if that fails, recommends a contract that the ALRB can order the parties to implement.
By ensuring that workers who have a certified union representative get a contract in less than a year, MMC was expected to usher in a new wave of organizing, elections, and contracts. This did not occur. Instead, MMC has often been used at “old certifications,” where a union was certified to represent workers before 2003 and there was no contract but the employer committed a ULP. Since then, MMC has been invoked with 14 employers, and mediators recommended contracts 10 times.
MMC is controversial, especially at Gerawan farms, where the UFW was certified to represent workers in 1992 but there has never been a contract. In 2012, the UFW requested negotiations again, no contract was reached, the UFW requested MMC, and a mediator recommended a contract in summer 2013. Gerawan refused to implement the MMC contract pending court review, and Gerawan workers voted in a decertification election in November 2013. There were numerous objection elections aired during a four-month hearing that ended in March 2015, so that despite MMC, there is no contract after almost two years.
Legislative efforts to expand MMC from first contracts to second and subsequent contracts failed in 2014. The UFW says that MMC is still too slow, but would like to have the ALRA amended to allow MMC to be used for second and third contracts. Other union attorneys say that MMC does not result in “good” contracts, so that workers anticipating wage and benefit increases under MMC can be so disappointed with the resulting contract that they decertify the union. Instead of MMC, some would require the MMC process to end with the mediator-arbitrator selecting either the union or the employer proposal in the hope that such a process would force both sides to negotiate and leave their offer for the arbitrator, as in baseball.
With over half of farm workers unauthorized and most ALRB cases today involving workers engaged in protected concerted activities when no union is present, what remedies are available to farm workers under the ALRA? The US Supreme Court in March 2002 ruled that unauthorized workers who are wrongly fired for union organizing are not entitled to back pay for the time they are jobless after their illegal firing. This Hoffman Plastic Compounds decision essentially concluded that a worker's violation of immigration laws was more serious than an employer's violation of labor laws, and reasoned that remedies under labor law might act as a magnet for unauthorized migrants.
What about unauthorized workers in California? The California Supreme Court in June 2014 allowed an unauthorized worker to receive relief until the employer knew he was unauthorized. Vincente Salas used another person's Social Security number to get hired and sued Sierra Chemical for not accommodating his disability after a workplace accident. The Salas decision upheld California'gs SB 1818, enacted after Hoffman Plastic, which says all workers are entitled to all protections and remedies under state law except for reinstatement prohibited by federal law. Sierra’s defense was that Salas was unauthorized and not eligible for reinstatement and accommodation, but the California SC concluded that SB 1818 allowed Salas to pursue remedies for unlawful discharge and that Sierra must provide him with back pay until it learned that Salas was unauthorized.
Most farm employers have not inquired about the legal status of workers whom the ALRB determines are due remedies for unlawful employer activities. If they do, Salas might allow unauthorized workers to receive back pay for the time they did not work until the employer learned that they were unauthorized.
Perspective: 40 years of ALRA
The past four decades have been marked by continuity and change in California agriculture and farm labor relations. FVH commodities continue to dominate the state's farm sales, and rising production of labor-intensive commodities such as berries has kept average farm worker employment at over 400,000 and the total number of persons who work for wages on the state’s farms sometime during a typical year at over 800,000. These mostly unauthorized workers are aging and settling, raising questions about who will replace them.
Meanwhile, less than five percent of farm workers are covered by union contracts, and the three major unions, Teamsters, UFCW, and UFW, may be as focused on retaining existing contracts as negotiating new ones. The ALRB, which has shrunk from over 300 employees at its peak to less than 50, continues to deal with old and new cases, some of which involve new issues, including how to speed up its decision making, dealing with non-Spanish speaking workers, and providing effective remedies to unauthorized workers. Most day-to-day activities involve resolving charges that workers who were engaged in lawful protected concerted activities were retaliated against by their employers.
Four major explanations for the decline of unionism have been offered. First, many analysts argue that the major farm worker union, the UFW, stopped organizing workers in the 1980s, so that the newly arrived Mexicans were more likely to think that Cesar Chavez was the Mexican boxer rather than the UFW'gs president. Second, the switch from Democratic to Republican governors who appointed the Board and GC in the 1980s was blamed for switching the ALRB from a pro-worker agency to a pro-employer agency.
The third explanation is the changing structure of agriculture, the exit of oil companies, multinationals, and others with consumer-recognized brand names from farming, and their replacement with independent growers who used FLCs and custom harvesters to bring workers to their farms. The citrus industry provides an example. Before the ALRA, packing houses and associations of growers hired harvesting crews and sent from farm to farm, allowing packinghouses to coordinate harvesting and marketing. A combination of unionization and rising unauthorized migration encouraged a shift to growers harvesting their citrus with FLCs.
The fourth explanation is rising unauthorized migration. Varden Fuller said that farmers rely on negative recruitment, “poverty at home and misery abroad,” to get a seasonal farm work force. Most farmers have unstructured employment practices, with few job descriptions, employee assessments, and seniority ladders. Fuller was skeptical of the ability of union-run hiring halls to organize seasonal workers efficiently, and thought that employer associations offered the best hope to recruit, deploy, and maintain contact with experienced farm workers.
After four decades, there are several major issues facing agriculture and farm labor systems:
- Is agriculture at another turning point in farm labor supply? Will the slowdown in Mexico-US migration result in some combination of better personnel management to more effectively utilize an aging and settled workforce, new sources of migrant labor (Asia?), and/or labor-saving mechanization and crop changes? Will the ACA requirement to provide health insurance raise labor costs and spur mechanization?
- How will limited water supplies affect cropping choices and the demand for labor? If water markets evolve to allow farmers now growing relatively low-value but thirsty crops such as alfalfa and rice to sell their water, will less labor-intensive agriculture north of the Sacramento-San Joaquin river delta shrink and free up water for more labor-intensive crops south of the delta where the state's agriculture and farm workers are concentrated?
- How will immigration reform affect farm workers and agriculture? In the past, legal status speeded exits from agriculture. Will DACA and DAPA have the same effects? Will growers win a new guest worker program that permits workers to stay in the US for up to three years, as with AgJOBS?
- Will unions be able to "break-out" of their current niche roles in California agriculture? Unions play major roles influencing wages and working conditions directly and indirectly in mushroom and green-tomato production, but have limited impacts in most other commodities. Will new organizations emerge that use a top-down or supply-chain approach to improve farm wages and working conditions, as in FL and NC?
- What role will the state play in farm labor relations? Will card-check be approved to make organizing easier? Will MMC be upheld by courts or watered down in some way? Will 40-year old ALRB regulations such as the access rule be revisited?
 A 1965 analysis directed by Cheryl Peterson of the California farm work force found that 46 percent of farm workers were Hispanic and 44 percent white. Most of the workers were employed only a short time in agriculture.
 Some 429 elections involving 50,000 farm workers were conducted between August 28, 1975 and February 7, 1976, when elections were stopped by lack of funds. There were 188 elections in FY76-77, and 80 percent of the 150 certifications in FY76-77 involved the Christian Labor Association turning previous bargaining relationships with southern California dairies into ALRB-recognized relationships.
 Prop 14 would have enshrined the ALRB'gs access regulations into law and amended the state constitution to require funding for the ALRB. Some ex-UFW insiders say that Prop 14 was a Cesar Chavez overreach and marked a turning point, with Chavez refusing to allow discussion of the decision to put Prop 14 on the ballot. Some farmers credit Prop 14 with helping agriculture to organize successfully to defeat the UFW in other areas.
 Vegetable growers bargained as a multi-employer group aimed at achieving a standard contract, which “took wages out of competition” between grower-shippers.