A Strategic Approach Toward Addressing the Marginalization of Agricultural Workers |
||
Let the Flowers Bloom And Protect the Workers TooBy Arthur N. Read General Counsel Friends of Farmworkers, Inc. Draft November 25, 2003 Click here to open article => As Printable Adobe PDF File with Footnotes Click here to go to => text of article Table of Contents and SummaryI. Fundamental NLRA Protections Are Denied to Marginalized Workers Sec. I II. A Strategic Approach Toward Addressing the Marginalization of Agricultural Workers Sec. II This article grows out of continuing reflections on the development of effective strategies to confront the legal marginalization of “agricultural” and undocumented foreign-born workers 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. A. Identifying Barriers to the Expansion of Labor Protections under the NLRA to Agricultural Workers Sec. II.A 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. 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. B. Expanding Protections for “Agricultural” Laborers While Limiting Federal NLRA Preemption of Effective State Laws Sec. II.B 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. 2. Have the NLRB decline to exercise jurisdiction over workplaces including employees “arguably” subject to the NLRA, 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. 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. C. Limiting the Scope of NLRA Preemption of Effective State Laws Sec. II.C 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. 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. 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 The National Labor Relations Board should promptly promulgate regulations and procedures for exercising its power under Section 10(a) of the NLRA, 29 U.S.C. § 160(a), to enter into agreements with states and territories (including the Commonwealth of Puerto Rico) 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 “...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. Perhaps even more significantly, Section 14(c)(1) of the NLRA,29 U.S.C. § 164(c)(1), 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.” 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. This should include workplaces with employees subject to the California Agricultural Labor Relations Board. 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 There is a significant argument that the Norris LaGuardia Act of 1932, 29 U.S.C. § 101 et seq., confers substantive protections on all workers, including agricultural and domestic workers excluded from the NLRA. B. Recognition of Fundamental Labor Rights of Federally Excluded Workers in State Law Sec. III.B Court in three states –Wisconsin, Washington, and Oregon-- 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. Among other states with such public policy provisions in anti-injunction statutes modeled on the federal Norris LaGuardia Act are: Idaho, Indiana, and Minnesota. As in Oregon the Pennsylvania “Labor Anti-injunction Act” public policy declarations do not exclude agricultural laborers, although the Pennsylvania Labor Relations Act (PLRA) which was modeled on the federal Wagner Act does exempt agricultural laborers. 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. 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. Such state acts exemption for agricultural workers is not necessarily the same as that under the NLRA. Several state constitutions confer substantive protections on workers generally without an exclusion of agricultural workers. 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. Missouri also has a state constitutional provision without any subsequent enacting legislation. Hawaii and Puerto Rico 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. See, Florida Constitution and statutes. Similarly, Arkansas by both its constitution and statute protects the right to work in terms which may be utilized to protect agricultural workers. Wyoming has provisions under its constitution and its statutes 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. 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; North Carolina; South Carolina; Texas; and Virginia. Some other jurisdictions, including New York, do not exclude agricultural workers from state constitutional protections, but have excluded them from implementing legislation. A few states with California as the prime example have specifically have adopted laws to regulate the labor rights of agricultural workers. One of the most recent states to adopt an agricultural work specific law is Maine. 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. States with such agricultural specific provisions include: Arizona, Kansas, Idaho, South Dakota, and Louisiana. Other state statutes might contain policy declarations as to labor rights which do not exclude agricultural workers. 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. C. Recognition of Fundamental Labor Rights In International Law Sec. III.C The right of workers to organize collectively is a fundamental human right recognized by the United States as a principle of international law. IV. Treatment of Agricultural Workers Under the NLRA Sec. IV The National Labor Relations Act (NLRA) since its inception as the Wagner Act has excluded persons employed in “agricultural labor.” 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. 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 EndnotesGo to: Let the Flowers Bloom And Protect the Workers Too Open as Printable Adobe PDF File with Footnotes
New! Links to University of California Davis Conference October 4, 2000 California Agricultural Labor Relations Act at 25Return to information for AdvocatesReturn to the Friends of Farmworkers, Inc. Web Site |