Let the Flowers Bloom And Protect the Workers Too

A Strategic Approach Toward Addressing the Marginalization of Agricultural Workers

By Arthur N. Read, General Counsel Friends of Farmworkers, Inc.

© 2003 Arthur N. Read

Draft November 25, 2003

Open=>  Table of Contents with Summary

Table of Contents

I.                    Fundamental NLRA Protections Are Denied to Marginalized Workers Sec. I

II.                 A Strategic Approach Toward Addressing the Marginalization

of Agricultural Workers Sec. II

A.             Identifying Barriers to the Expansion of Labor Protections

under the NLRA to Agricultural Workers Sec. II.A

B.             Expanding Protections for “Agricultural” Laborers

While Limiting Federal NLRA Preemption of Effective State Laws Sec. II.B

C.             Limiting the Scope of NLRA Preemption of Effective State Laws            Sec. II.C

D.             Proposed Actions to be Taken Under the National Labor Relations Act            Sec. II.D

1.              Promulgation of Regulations Under Sections 10(a)

and 14(c) of the NLRA........... Sec. II.D.1

2.              Removal of the Federal Appropriation Rider Requiring

Usage of the FLSA Definition of Agriculture........... Sec. II.D.2

III.               Expanding Protections for the Right of Agricultural Laborers

Currently Excluded from the NLRA to Organize.. Sec. III

A.             Recognition of Fundamental Labor Rights in the

Norris LaGuardia Act of 1932 Sec. III.A

B.             Recognition of Fundamental Labor Rights of

Federally Excluded Workers in State Law Sec. III.B

C.             Recognition of Fundamental Labor Rights

In International Law Sec. III.C

IV.              Treatment of Agricultural Workers Under the NLRA Sec. IV

A.             Historical Basis for Exclusion of Agricultural Workers

from the NLRA and other New Deal Legislation Sec. IV.A

B.             Initial NLRB Interpretation of the Wagner Act

Agricultural Exemption Sec. IV.B

C.             NLRB Appropriations Rider of 1946            Sec. IV.C

V.                 Conclusion:  Both State and Federal Governments Could Better

Protect the Organizing Rights of Marginalized “Agricultural” Laborers. Sec. V

Endnotes .......                 Endnotes 1 to 147

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Let the Flowers Bloom And Protect the Workers Too

By Arthur N. Read [1]

© 2003 Arthur N. Read

Draft November 25, 2003

At the February 2003 University of Pennsylvania Journal of Labor and Employment Law “Workers on the Fringe” conference at the University of Pennsylvania Law School, I was asked to address the topic of the relationship between the legal status of the most marginalized workers and organizing the traditionally unorganized.

I.  Fundamental NLRA Protections Are Denied to Marginalized Workers

The National Labor Relations Act (NLRA)[2] sets forth the fundamental rights of workers protected under the NLRA in Section 7 of the Act.  That provides that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection....[3]

The categories of workers most consistently marginalized in the law in this country include: those persons legally classified as “agricultural” workers[4] and “domestic service” workers.[5]  In addition, workers classified as independent contractors, temporary or contingent workers are regularly denied the same protections as other workers.[6] 

Section 2 of the NLRA defines employees covered by that act by providing:

    The term “employee” ... shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, ... or any individual having the status of an independent contractor....[7]

 [Emphasis added].

Increasingly undocumented foreign-born workers without lawful employment authorization are similarly denied fundamental protections of other workers.  The United States Supreme Court in its March 2002 decision in Hoffman Plastic Compounds, Inc. v. NLRB,[8] significantly eroded protections for undocumented foreign-born workers without lawful employment authorization by ruling that although such persons were employees protected under the NLRA they were not entitled to recover under the back-pay damage provisions of the NLRA.[9]

II.  A Strategic Approach Toward Addressing the Marginalization of Agricultural Workers

This article grows out of continuing reflections on the development of effective strategies to confront the legal marginalization of “agricultural”[10] and undocumented foreign-born workers[11] which deny them fundamental protections available to other workers.  It also attempts to encourage new localized experimentation and alternative approaches to the failure of existing labor law to adequately protect the rights to self-organization of workers.[12]

A.     Identifying Barriers to the Expansion of Labor Protections under the NLRA to Agricultural Workers

It would seem at first blush that advocates for the rights of agricultural workers should focus their energies on simply arguing for removing the agricultural labor exemption from the NLRA as the approach that would most fully protect the rights of agricultural workers.[13]

In fact, however, such a strategy would be unlikely to be successful in the foreseeable future given the overwhelming political power of agricultural employers in Congress.  Moreover, unless carefully implemented it would have a strong potential to undercut rights won by the United Farm Workers of America, AFL-CIO for agricultural workers subject to the California Agricultural Labor Relations Act.[14] 

Virtually every labor practitioner who has represented workers subject to the NLRA is fully aware of the critical failure of the NLRA to adequately protect the rights of workers subject to the NLRA.[15] 

Representation case procedures compelling an employer to recognize and bargain with an exclusive bargaining agent do not exist for farmworkers outside of a limited number of jurisdictions.[16]  Therefore, extension of such procedures to agricultural workers (even if wholly inadequate for seasonal workforces)[17] would appear to be a net plus were it not for the negative impact on farmworkers in California and those other jurisdictions where agricultural laborers excluded from the NLRA have utilized state law protections.

Under existing law and procedures, simply removing the exemption of agricultural laborers from protections under the NLRA would preempt the jurisdiction of the California Agricultural Labor Relations Board (ALRB) over workers.[18]  This would risk undercutting hard won victories of California farm workers under the California ALRA after what will soon be 30 years of ALRA jurisdiction over agricultural workers.  Such a huge percentage of agricultural laborers work in California that any such approach would be clearly counterproductive.[19]

            Moreover, the potential scope of current NLRA preemption could jeopardize other retaliation protections for agricultural workers which have built up under state law unless the scope of NLRA preemption is reconciled with such other protections.[20]

B.          Expanding Protections for “Agricultural” Laborers While Limiting Federal NLRA Preemption of Effective State Laws

The proposed solution to his dilemma is to: 

1.                Seek to expand and protect the effectiveness of protections for labor organizing under state and territorial laws and other federal laws for persons denied NLRA protection as agricultural laborers.[21]

2.                Have the NLRB decline to exercise jurisdiction over workplaces including employees “arguably” subject to the NLRA,[22] where such workers would otherwise be adequately protected under state or territorial laws covering such employees.

3.                Remove the NLRA annual appropriation rider requiring the NLRB to utilize the Fair Labor Standards Act (FLSA) definition of agricultural laborers under the NLRA.[23]

4.                Narrowly redefine by NLRB regulation “agricultural laborers” excluded as employees from protections under the NLRA, while declining to exercise such expanded NLRB jurisdiction where state and territorial laws adequately protect the rights of such persons.

5.                Such a redefinition of “agricultural laborers” should build upon initial NLRB jurisprudence from 1939-1946, prior to the imposition of the NLRB appropriation rider requiring the utilization of the FLSA definition of agriculture.[24]

C.        Limiting the Scope of NLRA Preemption of Effective State Laws

The proposed process builds on existing statutory authority vested in the National Labor Relations Board to decline and to cede its jurisdiction over categories of workers and cases.[25] Instead of the federal labor law wholly preempting state enforcement of laws to protect the labor rights of employees, federal labor policy would set minimum standards of protections which state agencies would be expected to meet in order to operate in this arena. 

Such modified preemption would be more similar to federal preemption as applied in other areas of law such as Section 18 of the Occupational Safety and Health Act.^[26]

D.        Proposed Actions to be Taken Under the National Labor Relations Act

1.      Promulgation of Regulations Under Sections 10(a) and 14(c) of the NLRA

The National Labor Relations Board should promptly promulgate regulations and procedures[27] for exercising its power under Section 10(a) of the NLRA[28] to enter into agreements with states and territories (including the Commonwealth of Puerto Rico)[29] to cede NLRB unfair labor practice jurisdiction to such agencies of states or territories over cases in industries other than mining, manufacturing, communications, and transportation[30] “...unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of th[e NLRA] or has received a construction inconsistent therewith.[31]

The NLRB in the course of this regulatory process should consider the degree of consistency required between the specific state or territorial unfair labor practice provision and the NLRA in order to meet this standard.  The language of Section 10(a) of the NLRA would also appear to permit the NLRB to retain jurisdiction over specific unfair labor practice sections that it did not believe the state or territorial law reflected with sufficient fidelity while permitting the NLRB to defer its jurisdiction to the state or territorial agency where the matter did not involve such unfair labor practice provisions.

In a significant number of workplaces it is not uncommon for some workers to be covered as employees under the NLRA while others are excluded as agricultural laborers.[32] Such cessation agreements under Section 10(a) of the NLRA should be promptly be entered into with states and territories with appropriate procedures for protecting rights of classes of workers (specifically including agricultural workers) who are currently excluded from protections under the NLRA to the extent that the same employers may have other employees in covered workplaces subject to the NLRA.[33]

Such agreements should include agreements with the California Agricultural Labor Relations Board to cede jurisdiction over employees “arguably” subject to the NLRA who are employed by employers in California subject to the California Agricultural Labor Relations Act.[34] A ceding of jurisdiction under Section 10(a) of the NLRA to the California ALRB will likely require the NLRB to rethink the degree to which the provisions of the California ALRA as applied by the California ALRB need to be identical to the NLRA as applied by the NLRB.[35]  This issue may not be easily resolved since the only recent consideration by the NLRB of Section 10(a) of the NLRA involved a rejection of a request by the California ALRB for the NLRB to cede jurisdiction to it.[36]  Nonetheless, as part of a rethinking of the degree to which a state law must conform to federal law and the degree to which the state could agree to apply federal law to NLRA covered employees it might be possible to resolve such differences.[37]

Perhaps even more significantly, Section 14(c)(1) of the NLRA allows the Board to decline to assert jurisdiction over a labor dispute “...where, in the opinion of the Board, the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction.”[38] Where a bargaining unit has been established under a state’s labor relations act or where a “question concerning representation” has arisen in such a workplace with a potential bargaining unit including persons excluded from the NLRA as agricultural workers, the NLRB could utilize its power under Section 14(c)(1) of the NLRA to decline jurisdiction over the workers subject to the NLRA in order to permit the state or territorial agency to assert jurisdiction over all workers in that workplace including those who might arguably be subject to NLRB jurisdiction.[39]  This should include workplaces with employees subject to the California Agricultural Labor Relations Board.[40]

Consideration should also be given as to entering more broadly into agreements under NLRA Section 10(a) with those state and territorial agencies which have the capacity to provide protections to workers subject to the NLRA.  Agreements for federal funding to such state and territory agencies as part of such agreements could be further explored.

2.         Removal of the Federal Appropriation Rider Requiring Usage of the FLSA Definition of Agriculture.

As suggested above, after the NLRB has established procedures for declining expanded jurisdiction over agricultural laborers where there are adequate state or territorial laws covering workers who might be arguably subject to the NLRA, Congress should remove the annual appropriation rider tying the definition of employees excluded from the NLRA as agricultural laborers to the FLSA definition of agriculture. Thereafter, the NLRB should exercise its authority upon removal of appropriation riders defining agriculture to promulgate regulations narrowly defining agricultural laborers excluded from protections under the NLRA.[41]  The agricultural laborer exemption should be consistent with the early standards developed by the NLRB prior to the initial adoption of the current appropriation rider requiring the usage of the FLSA definition of agriculture.[42]  In particular, workers in indoor “horticultural specialty” operations such as greenhouses and mushroom operations should not be treated as agricultural laborers.[43]

Only outdoor hand harvest agricultural laborers employed directly by employers engaged only in farming the land and performing no secondary food processing activities should be excluded from protections as agricultural laborers.[44]

III.  Expanding Protections for the Right of Agricultural Laborers Currently Excluded from the NLRA to Organize

            It is critical to note as a threshold matter that the right of all workers, including agricultural and domestic workers excluded from protection under the NLRA, to collectively withhold their services or otherwise to engage in collective activity exists independently of whether or not that right is specifically protected under the NLRA.  This right has foundations under the 13^th amendment to the United States Constitution.[45]  It also has foundations under the 1^st amendment to the United States Constitution.[46]

A.            Recognition of Fundamental Labor Rights in the Norris LaGuardia Act of 1932

            In 1932 Congress adopted the Norris LaGuardia Act (NLA).[47] The Norris LaGuardia Act not only included provisions intended to prevent federal courts from issuing injunctions to enjoin labor disputes, but also included as Section 2 thereof a declaration of public policy in labor matters.[48] Significantly, unlike the subsequent NLRA, the Norris LaGuardia Act had no exemption for agricultural laborers from its provisions.

            The declaration of public policy in the Norris LaGuardia Act includes:

Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; therefore, the following definitions of and limitations upon the jurisdiction and authority of the courts of the United States are enacted.[49]

[Emphasis Added].

The substantive content of the provisions of the Norris LaGuardia Act are also apparent in Section 3 of the Act[50] which provides:

Sec. 103. - Nonenforceability of undertakings in conflict with public policy; “yellow dog” contracts

 

Any undertaking or promise, such as is described in this section, or any other undertaking or promise in conflict with the public policy declared in section 102 of this title, is declared to be contrary to the public policy of the United States, shall not be enforceable in any court of the United States and shall not afford any basis for the granting of legal or equitable relief by any such court, including specifically the following: Every undertaking or promise hereafter made, whether written or oral, express or implied, constituting or contained in any contract or agreement of hiring or employment between any individual, firm, company, association, or corporation, and any employee or prospective employee of the same, whereby

 

(a) Either party to such contract or agreement undertakes or promises not to join, become, or remain a member of any labor organization or of any employer organization; or

 

(b) Either party to such contract or agreement undertakes or promises that he will withdraw from an employment relation in the event that he joins, becomes, or remains a member of any labor organization or of any employer organization.^[51]

 

Largely as a result of the passage of subsequent labor legislation the content of the substantive protections of labor rights under the federal Norris LaGuardia Act have not been tested.  Nonetheless, there is a significant argument that the Norris LaGuardia Act confers substantive protections on all workers, including agricultural and domestic workers excluded from the NLRA. [52]

B.        Recognition of Fundamental Labor Rights of Federally Excluded Workers in State Law

Because the Norris LaGuardia Act only restrained federal courts rather than state courts in the issuance of injunctions, parallel state Norris LaGuardia Acts (NLA) were adopted in numerous states and territories.[53]  Court in three states --Wisconsin,[54] Washington,[55] and Oregon[56] -- have held that the language of state statutes modeled on the Norris LaGuardia Act was sufficient to confer substantive protected rights on workers, including agricultural workers excluded from the NLRA. 

A similar argument could potentially be made under the federal Norris LaGuardia Act or under the public policy provisions of other state anti-injunction statutes.[57]  Among other states with such public policy provisions in anti-injunction statutes modeled on the federal Norris LaGuardia Act are:  Idaho,[58] Indiana,[59] and Minnesota.[60] 

As in Oregon the Pennsylvania “Labor Anti-injunction Act”[61] public policy declarations[62] do not exclude agricultural laborers,[63] although the Pennsylvania Labor Relations Act (PLRA) which was modeled on the federal Wagner Act does exempt agricultural laborers.[64] Significantly, the Pennsylvania Supreme Court has upheld the Pennsylvania Labor Relations Board’s treatment of mushroom and greenhouse workers as non-agricultural workers protected under the PLRA.[65]

Similarly, most of the other states that adopted state labor relations acts modeled on the Wagner Act include exclusions in those acts of agricultural workers.[66]  Such state acts exemption for agricultural workers is not necessarily the same as that under the NLRA.  See, Willmar Poultry Co. v. Jones, 430 F. Supp 573.

Several state constitutions confer substantive protections on workers generally without an exclusion of agricultural workers.[67]  In New Jersey a state constitutional provision providing that "Persons in private employment shall have the right to organize and bargain collectively" was held to be sufficient to have equity court fashion remedies including procedures for determination of collective bargaining representatives.[68]  Missouri also has a state constitutional provision without any subsequent enacting legislation.[69] 

Hawaii[70] and Puerto Rico[71] are amongst jurisdictions which recognize agricultural workers organizing rights together with those of other workers without distinction both by state constitution and by statute.

Some “right to work” states have Constitutional and/or statutory provisions which could provide a basis for protection of agricultural workers organizing rights. ^[72] The Florida Constitution states as to the  “Right to work”:

   The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.[73]

Florida reinforces this right by statute providing:

  Employees' right of self-organization.--Employees shall have the right to self-organization, to form, join, or assist labor unions or labor organizations or to refrain from such activity, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.[74]

Similarly, Arkansas by both its constitution[75] and statute[76] protects the right to work in terms which may be utilized to protect agricultural workers.  Wyoming has provisions under its constitution[77] and its statutes[78] which are protective of workers rights and which do not distinguish between agricultural and non-agricultural workers.  Although its language is far more limited the Oklahoma Constitution provides at least some constitutional protection for union membership.[79]

Other states with statutory  “right to work” provisions include language which may protect agricultural workers from employer discrimination for union activities. These states include:  Georgia;[80] North Carolina;[81] South Carolina;[82] Texas;[83] and Virginia.[84]

            Some other jurisdictions, including New York, do not exclude agricultural workers from state constitutional protections,[85] but have excluded them from implementing legislation.[86]

A few states with California[87] as the prime example have specifically have adopted laws to regulate the labor rights of agricultural workers.[88]  One of the most recent states to adopt an agricultural work specific law is Maine.[89]

Unfortunately, at least some of the states outside of California with agricultural worker specific labor laws, were designed to restrict the rights of agricultural workers. [90]  States with such agricultural specific provisions include:  Arizona,[91] Kansas,[92] Idaho,[93] South Dakota,[94] and Louisiana.[95]

            Other state statutes might contain policy declarations as to labor rights which do not exclude agricultural workers.[96]

            Finally, specific retaliation protections of a number of federal or state statutes may be triggered by retaliation against workers engaged in concerted activity where the issues raised include issues for which there are statutory retaliation protections.[97] 

C.            Recognition of Fundamental Labor Rights

            In International Law

The right of workers to organize collectively is a fundamental human right recognized by the United States as a principle of international law.[98]  Amongst the treaties protecting those rights are:

American Declaration of the Rights and Duties of Man (ADHR or American Declaration), Article XXII Right of Association.[99]

American Convention on Human Rights (ACHR or American Convention), Art. 16.1-16.2.[100]

Organization of American States (OAS) Charter, Article 45(c) & 45(g).[101]

International Covenant on Civil and Political Rights,  Article 22. [102]

International Covenant on Economic, Social and Cultural Rights (ICESCR),  Article 8. [103]

International Labour Organization (ILO) Declaration on Fundamental Principles and Rights at Work, art. 2.[104] 

North American Agreement on Labor Cooperation Between the Government of the United States of America, the Government of Canada, and the Government of the United Mexican States (NAALC), Articles 2 and 4.[105]

Universal Declaration of Human Rights (UDHR), Article 23.4

International Covenant on Economic, Social and Cultural Rights, Article 8[106]

The enforceability of such international law provisions is beyond the scope of this article, but it is important to realize that the rights of agricultural workers are protected under international law.[107]

IV.  Treatment of Agricultural Workers Under the NLRA

The National Labor Relations Act (NLRA) since its inception as the Wagner Act has excluded persons employed in “agricultural labor.”[108]   Although this definition has been a consistent element of the NLRA since its inception, it has been construed to exclude more persons as agricultural laborers since 1946 than had been initially treated as agricultural laborers by the NLRB.[109]

A.        Historical Basis for Exclusion of Agricultural Workers from the NLRA and other New Deal Legislation

            Considerable legal scholarship has been devoted to the efforts to plumb the legislative history of the 1935 Wagner Act and other contemporaneous New Deal legislation which included exemptions for “agricultural” workers.[110] 

            The first New Deal legislation to include protections for the right to organize was contained in the 1933 National Industrial Recovery Act (NIRA).[111] The NIRA was subsequently declared unconstitutional by the United States Supreme Court in 1935 in Schechter Poultry Corp. v. United States.[112] That legislation had no statutory exclusion of agricultural laborers.[113] 

            Senator Wagner’s original bill for a National Labor Relations Act was introduced in 1934[114] and included no exclusion of agricultural labor.[115]  In legislative hearings thereon in the Senate and House committees agricultural labor was hardly discussed.^[116] Despite the absence of any explanation therefore, the Senate Committee on Education and Labor reported out the bill two months later with an exclusion from the definition of employee of “any individual employed as an agricultural laborer.”[117]  No definition thereof was contained therein.  Senator Wagner’s bill was not acted on further in the 73^rd Congress.

            In 1935 Senator Wagner reintroduced his bill.[118]  The Senate Report mentioned that agricultural laborers, domestic servants, and persons employed by parents or spouse had been excluded for “administrative reasons.”[119]

            The minority report of the House Committee on Labor, included an impassioned plea for the inclusion of farm labor.[120]  The author of the minority report, Rep. Vito Marcantonio introduced an amendment to the Wagner Act on the floor of the House of Representatives to strike the exemption for agricultural workers.[121]  The articulated opposition thereto focused on the small family farmer.^[122]

            The Wagner Act as finally enacted contained no definition of an “agricultural laborer.”[123]  Similarly, the Social Security Act as originally enacted in the 74th Congress similarly excluded “agricultural labor” without defining it.^[124]    

            Likewise, as originally introduced on May 24, 1937, the Fair Labor Standards Act contained no definition of the agricultural laborers excluded from protections thereunder and merely provided for the term “agricultural laborer” to be defined by the “Fair Labor Standards Board” which was proposed to administer the FLSA.[125] 

B.        Initial NLRB Interpretation of the Wagner Act

            Agricultural Exemption

            It is significant to review the National Labor Relations Board’s (NLRB) early interpretation and application of legislative intent of the scope of the 1935 Wagner Act exclusion of “agricultural laborers” which was not otherwise explicitly defined either therein or in the legislative history thereof. It was the NLRB which was required without statutory guidance as to the meaning of the term “agricultural laborer” under the NLRA until 1946^[126] to interpret and apply the legislative intent of the 1935 United States Congress which had exempted “agricultural laborers” from the protections of the NLRA.^[127]  Federal courts routinely defer to the interpretations of administrative agencies especially in the initial implementation of the statutory language.^[128]

            In 1937 the United States Supreme Court upheld the Constitutionality of the National Labor Relations Act of 1935.[129] It was not until after that, the NLRB confronted its first cases about the definition of agricultural laborer under the NLRA.^[130]

            In 1939 the NLRB rejected an attempt to apply exemptions under the FLSA[131] for individuals “employed within the area of production” in the packing of agricultural commodities to exempt packinghouse operations laborers from the NLRA as agricultural laborers.[132] 

            The first NLRB decision to address the application of the Wagner Act exclusion of “agricultural laborers” to laborers in relationship to cultivation in greenhouses was Park Floral Company.[133] The NLRB held in applying the term “agricultural laborer” as used in the Act:

            We have had occasion in several cases to interpret the term “agricultural laborer” as used in the Act.  What we have said may be epitomized, as follows: An agricultural laborer, within the meaning of Section 2(3), is a person employed by the owner or a tenant of a farm on which products in their raw or natural state are produced (1) to perform services on such farm in connection with the cultivation of the soil, the harvesting of crops, the nursing, feeding, or management of livestock, bees, and poultry, or other ordinary farming operations; or (2) to perform services in connection with the processing of the products produced, or the packing, packaging, transportation or marketing of such product in their raw or natural, or processed state, as an incident to ordinary farming operations, as distinguished from manufacturing or commercial operations.

            Under this construction of the statute, persons employed to cultivate plants and flowers in commercial greenhouses, to perform other services in connection with the operation of these greenhouses, such as tending to the heating and watering facilities such as tending to the heating and watering facilities, or to pack, package, transport, or market the floral products grown, are not agricultural laborers.  The cultivation in which they engage is not done on a farm, nor are the services which they perform incident to ordinary farming operations.  Planting, care, and growing of the plants and flowers have been removed from the farm and from the natural conditions which there obtain, and are carried on under artificial conditions and as a specialized process.  Growing is done in soil-filled containers kept in glass-covered, heat-regulated houses.  Production is continuous throughout the year and not affected by the change of the seasons.  The work in the greenhouses is industrial in nature rather than agricultural in the common understanding of that term.  With respect to the services performed in operating the heating and watering facilities, in packing, packaging, transporting, and marketing the products, and in other similar activities, such work is not agricultural in nature, nor is it, in view of what has been stated above, incident to ordinary farming operations.[134]

[Emphasis added].

            In 1940 the NLRB applied the principles enunciated by it in relationship to greenhouse workers in holding for the first time that mushroom harvesting workers were not to be considered agricultural laborers under NLRA. Great Western Mushroom Company.[135]  The NLRB held:

            ...the growing of mushrooms by the respondent is carried on under artificial conditions more like cultivation in green houses than on a farm.  The mushrooms are grown in enclosed houses under controlled conditions of heat and moisture.  The crop is not seasonal, but is so regulated by the respondent as to maintain a constant output of mushrooms throughout the year.  For these reasons, the growing of mushrooms and the work incidental thereto is not agricultural in nature in the common understanding of the term.^[136]

            Following the Great Western Mushroom Company decision, the NLRB twice affirmed its position that mushroom harvesting and growing laborers were not to be considered agricultural workers. 

            In Knaust Brothers, Inc.,[137] the NLRB reaffirmed its definition of agricultural laborers from the earlier Park Floral Company, decision and held mushrooms harvesting worker to be industrial rather than agricultural laborers.  The NLRB held:

            ...the growing of mushrooms under such conditions is not agricultural in nature as that term is commonly understood.  Mushroom growing, as practiced by the Company, does not depend upon climate, temperature, rainfall, or other conditions which affect the growing of crops under ordinary circumstances.  It is, in fact, very similar to the production which goes on in industrial pants under controlled and artificial conditions at the will of the producer.  The Company has cited provisions of the Federal Social Security Act and of the Internal Revenue Code^[138] in support of its contention that its employees are agricultural laborers.  We cannot consider the definitions contained therein as controlling in this case.

Knaust Brothers, Inc. [139]

            In its final decision on mushroom growing before passage of the July 18, 1946 Congressional appropriations rider mandating usage of the Fair Labor Standards Act definition of agriculture, the NLRB in 1945 in Indiana Mushroom Company,[140] again reaffirmed “the term ‘agricultural laborer’ as commonly understood refers to a person employed on a farm in the cultivation of the soil, including the harvest of corps.”[141]  In Indiana Mushroom Company, the NLRB again held mushroom growing workers to be industrial workers subject to the NLRA.^[142]

            The NLRB decisions in relationship to greenhouse and mushroom workers viewed these operations as markedly distinguishable from the unique character of the traditional seasonal agricultural operations involving the outdoor cultivation of the soil which were dependent upon weather and uncontrollable production conditions which it perceived had been the basis for the consensus for exclusion of agricultural workers from the Wagner Act as enacted in 1935.[143]

C.        NLRB Appropriations Rider of 1946

            Beginning July 26, 1946, with the passage of the National Labor Relations Board Appropriation Act for 1947,[144] 60 Stat. 698, Congress has included in the Board's annual appropriation act a proviso directing the Board to apply the definition of "agriculture" found in section 3(f) of the Fair Labor Standards Act (FLSA), 29 U.S.C. §203(f), in construing the term "agricultural laborer."

            In 1950 in Michigan Mushroom Co.,[145] the NLRB abandoned its coverage of mushroom workers as employees protected by the NLRA because of the Congressional mandate for the NLRB to employ the Fair Labor Standards Act definition of agriculture.  This definition provided that “agriculture” includes:

 “...the production, cultivation, growing and harvesting of any agricultural or horticultural commodities....” 

The NLRB concluded that it was thereafter required to respect the U.S. Department of Labor’s treatment of mushroom harvesting workers under the Fair Labor Standards Act as agricultural workers.

              Nowhere does the Congressional Record of the 1946 floor debates reflect any consciousness of the impact on “horticultural” workers in greenhouses and mushroom operations of the adoption of the FLSA definition of agriculture.^[146]

V.  Conclusion:  Both State and Federal Governments Could Better Protect the Organizing Rights of Marginalized “Agricultural” Laborers

 As agricultural production becomes increasingly similar to industrial production in terms of the demand for labor, the likelihood of spontaneous concerted activities by workers to improve their terms and conditions of employment is also increasingly likely. 

Mushroom and greenhouse industries which often operate on a year-round basis have more in common with industrial operations than they do with the kinds of idealized small family farm employers who argued for exclusion from NLRA coverage at the time of the passage of the Wagner Act in 1935.[147]

It is the responsibility of state and national governments to design mechanisms to protect the basic rights of such workers to act collectively to deal with employers about their terms and conditions of employment. 

Encouraging local state experimentation to design mechanisms responsive to particular needs of workers and employers would better serve effectively protecting rights of such workers.  This would be particularly true if it were accomplished within a national framework that set minimum standards expected to be met in protecting such rights.

 

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Endnotes

 

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