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Vol. 29, No. 9, September 2000
IN THIS ISSUE
ALRB General Counsel Named
AgShip
Checklist
Ag
Labor Network To Go On-Line
Threat to One's Own
Health Not For Job Decision
The ALRA at 25
The Union
Front
Lingering Disabilities from
Work-Related Injuries
Arbitration Agreements Must Have
Certain Terms
Davis
Heralds Bills to UFW
Huerta
Leaves UFW
UFW, Gallo Sign Contract
Minimum-Wage
Hike Proposed
The appointment of Norma A. Turner, 69, as General Counsel of the Agricultural Labor Relations Board was announced by Gov. Gray Davis.
Ms. Turner served as counsel to ALRB board members since 1975. Before that, she worked for Modesto-area radio stations.
California Farm Bureau Federation urged Gov. Davis to appoint Ms. Turner to the position.
Farm Bureau cited her expert knowledge of agricultural labor law and the fact that throughout her 25 years of board service she was never aligned with any group involved with the ALRB. The latter point helps assure such parties that they can expect fairness and objectivity from Turner.
This position is a five-year appointment and requires Senate confirmation.
In one week alone, FELS received calls from three subscribers visited by representatives of AgShip, Cal/OSHA's Agricultural Safety and Health Inspection Program. A revised AgShip pamphlet notes that inspectors will focus on these items:
1. Machinery-related hazards, such as driverless tractors (a subscriber mentioned they were also interested in ROPS);
2. Field-sanitation hazards, such as the absence of toilet and drinking water facilities in the field;
3. Heat stress;
4. Musculoskeletal hazards arising from the use of short-handled agricultural tools and prolonged stoop labor;
5. Skin hazards, such as lacerations from exposure to pruning knives and rashes from contact with soil contaminants, such as fertilizers; and
6. Electrical hazards from contact with high-voltage lines.
Cal/OSHA must inspect an employer's Injury and Illness Prevention Program (IIPP). Employers needing an IIPP can use Cal/OSHA's model IIPP, available at: <http://www.dir.ca.gov/DOSH/ sh_publications/iipintermit.html>.
Before or after a Cal/OSHA inspection, the investigator will ask to see these items:
1. Record-keeping Requirements:
*OSHA 200 (11 or more employees). Must keep for five years and post during the month of February.
*Inspection records.
*Review of accidents or illnesses.
*Communications with employee - response to employee suggestions.
*Employee safety warnings - employee recognition program.
*Correction of hazards.
*Training and instructions.
*Medical records - chemical exposure, etc.
*Physican's approval of first-aid kits
2. Respiratory Program (GISO §5144)
*Approved equipment.
*Education and training.
*Inspection before use.
*Maintenance, sanitation and storage.
*Selection and issuance of respirator.
*Medical limitations.
*Respiratory protection program (written).
3. Hazard Communication Program (GISO §5194)
*Written Hazard Communication Program.
*List of hazardous substances.
*Methods to inform employees of non-routine tasks.
*Procedure to insure containers are labeled.
*Appropriate hazard warnings.
*Procedure to acquire MSDS and make available to employees.
*Procedure to train employees.
4. Emergency Action Plan (GISO §3220)
*Written procedures.- A written program is required if a company has established emergency procedures and employs 10 or more employees.
*Emergency escape procedures and assignments.
*Procedures for employees who remain to operate critical plant operations.
*Procedures to account for employees.
*Rescue and medical duties.
*Reporting emergencies procedures.
*Names or titles of persons who can provide further information.
*Training of employees.
*Ten or fewer employees plan can be communicated orally.
*Fire prevention Plan (GISO §3221).
5. Medical Services (GISO §3400)
Employer shall ensure the ready availability of medical personnel for advice and consultation.
In absence of clinic, etc. in near proximity to the workplace (4 minutes) a person shall be adequately trained to render first aid.
Adequate first-aid materials.
Suitable facilities for quick drenching or flushing of eyes or body if exposed to corrosive materials.
Supervision at isolated locations.
6. Required OSHA Posters:
"Safety and Health Protection on the Job;" Feb. 1990.
"Emergency" phone numbers; S-500.(Construction employers only)
"Access to Medical and Exposure Records;" S-11, July 1985.
Notice to employees regarding location of MSDS's.
Notice to employees regarding location of Hazard Communication Program.
Notice to employees regarding name of person responsible for Injury and Illness Prevention Program.
"Agricultural-Industrial Tractors;" GISO §3664.
"Operating Rules for Industrial Trucks;" GISO §3657, 3659 and 3664.
"Log and Summary of Occupational Injuries and Illnesses;" OSHA 200 (only during the month of February).
Field sanitation notice.
Prop 65 warning notice.
Emergency signs e.g., fire extinguishers, exiting from buildings, or other appropriate warnings.
An outline of the Cal/OSHA inspection procedures are in "Policies and Procedures" C-1A. You can review P&P C-1A at <http://www.dir.ca.gov/DOS Pol/&PC-1A.HTM>.
Ag Labor Network To Go On-Line
Al French, of the U.S. Department of Agriculture's Office of the Chief Economist, announced AgNet, a free Internet-based electronic service to facilitate recruitment of agricultural workers by farm employers and the movement of agricultural workers to areas with labor-supply needs.
AgNet Partnership, consisting of farm-worker and grower organizations, will manage AgNet. The U.S. Department of Labor, along with the USDA, will support it.
If the system is successful, use of AgNet for recruitment will be considered in assessing the adequacy of a grower's effort to recruit U.S. workers before foreign workers are admitted under the H-2A program.
French added: "AgNet will alleviate problems employers have had in the past with mismatched SSNs by conducting a prior SSN match."
For more information on AgNet, visit: <http://migration.ucdavis. durmn/cfra/ucdapr2000/french.htm>.
(Source: Steve Sutter, Fresno Farm Advisor, UC Cooperative Extension)
Threat to One's Own Health Not Ground for Job Decision
The Ninth U.S. Circuit Court of Appeals recently held that an employer could not defend a disability-discrimination case based upon the defense of direct threat to the applicant's own health or safety.
The plaintiff's pre-employment physical barred him from working if exposed to solvents and chemicals. Chevron, the employer, rejected the plaintiff's request to work in its refinery where such exposure would occur.
Chevron also pointed out that a regulation of the U.S. Equal Employment Opportunity Commission (EEOC) allows an affirmative defense of "for the individual's own health and safety." The Ninth Circuit said the EEOC had exceeded its authority in formulating that regulation.
The Ninth Circuit did not suggest how the employer could meet its statutory obligations under Cal/OSHA or Federal OSHA to provide a safe work environment for its employees.
In these type of situations, an employer should: (1) get professional medical information in writing; (2) give the medical information to the employee if the employee disputes the finding and allow a second medical evaluation with an employee-designated profession (employers should consider paying for this examination); (3) have the employee/applicant sign an acknowledgment that he/she has been advised of the dangers and he/she is prepared to undertake these dangers in writing (a waiver of tort liability and increased penalties in writing would be nice but may be against public policy); and (4) document these actions.
(Source: Wayne Hersh, attorney at law)
Lingering Disabilities from Work-Related Injuries
Attorney Wayne Hersh warns employers that a policy requiring an employee injured at work to be 100% healed before returning to work is a per se violation of the Americans With Disabilities Act and the California Fair Employment and Housing Act.
This caution is especially appropriate in light of the court decision reviewed in the prior article that prohibits an employer from taking adverse employment action against a person with a disability on the ground that the disability poses a direct threat to that person's own health or safety.
"Suppose I want a production job at a peanut-butter plant even though I'm allergic to peanuts. I cannot be disqualified from consideration due to my allergy, despite the fact that I may become seriously ill if I smell, touch or ingest peanut oil," Hersh muses about a hypothetical job seeker.
The employer's answer is to get professional medical information in writing--get input from the applicant/employee on reasonable accommodation in writing-- complete those detailed job descriptions so that the applicant's/employee's doctor can in writing state exactly what the applicant/employee can and cannot do.
(Union-activity reports are courtesy of Ag Action, a monthly newsletter published by the Agricultural Action Committee, P. O. Box 34, Clovis, CA 93613. Subscription and membership information is available by calling 559-299-3181.)
Amnesty for undocumented farm workers continues to be the theme of noisy demonstrations by members and friends of the United Farm Workers union in the Northwest. About 3,000 staged a demonstration late last month at the Oregon State Capitol in Salem.
Part of the focus is a bill in Congress sponsored by Oregon Senator Gordon Smith that would ease citizenship requirements for those who have been in farm work for five years. UFW spokespersons such as Dolores Huerta want a more immediate and inclusive mechanism.
Another bill in the Oregon legislature seeks to prevent secondary boycotting by agricultural unions such as the UFW. Naturally, it has the complete opposition of the unions.
The Agricultural Labor Relations Board is still evaluating whether to locate an office, or at least an outpost, in Santa Maria or Oxnard.
The board met with local representatives of agricultural employers, unions and business leaders in Oxnard last month, after meeting with a similar groups in Santa Maria a month before.
One board member said the quest might boil down to a rented (or borrowed) desk in the office of another state agency, such as the Employment Development Department, but whatever is done is targeted for this calendar year.
Also evident in labor matters in the South/Central Coast area is the need for interpreters conversant in the six or more Mixtec dialects. So far translators can go only from Mixtec to Spanish, with another step required to translate the Spanish translation to English.
Coastal Berry of California has agreed to contract terms for its farm workers in the Watsonville area. The Coastal Berry of California Farm Workers Committee, also known as the Comité, won the right to represent those employees in an election held last year that was certified by the ALRB on May 5. Employees must ratify the contract before it can be signed, which might require a separate election.
While information about the contract's terms is sketchy, wages for strawberry harvest workers reportedly would increase by 25 cents per hour over the pact's three-year term. Wages for non-harvest employees would be raised by seven percent. Also included are piece-rate bonuses that could amount to a $4-per-hour pay hike by the third year.
Negotiations continue between the company and the United Farm Workers union, which represents its Oxnard-area field workers.
A conference marking the Agricultural Labor Relations Act (ALRA) will be held Oct. 4 at the Buehler Alumni and Visitors Center on the University of California Davis Campus. This full-day conference will review the legal and economic trends in California farm labor relations and the farm labor market since 1975.
Speakers include Phil Martin, UC Davis, Genevieve Shiroma, Chair, ALRB, Bert Mason, ALRB, Daniel Carroll, USDOL, Don Villarejo, CIRS, John Higgins, NLRB Solicitor, Maria Ontiveros, University of San Francisco Law School, Marcos Camacho, UFW, Rob Roy, Ventura County Ag Association, Mike Johnston, Teamsters 890, and Jim Bogart, Grower-Shipper Association of Salinas.
Lunch is included. A reception-dinner at Sudwerk will feature Congressman Howard Berman D-CA (invited). There is a $40 fee (payable to UC Regents) to participate, which covers breakfast and lunch. There is a separate charge of $35 for the reception and dinner.
Arbitration Agreements Must Have Certain Terms
In its most important decision on employment arbitration agreements in almost a decade, the California Supreme Court held that claims under the Fair Employment and Housing Act (FEHA) can be subject to a pre-dispute, mandatory arbitration agreement as long as the agreement meets certain minimum requirements that would permit "an employee to vindicate his or her statutory rights."
The Supreme Court also set minimum standards for the employer-mandated arbitration of any employment claims--statutory or otherwise--in order to avoid invalidation on grounds of unconscionability.
To be enforceable, such an arbitration agreement must have these features:
1. A provision for a neutral arbitrator.
2. The discovery provisions of the California Arbitration Act, or a statement that the arbitrator will provide discovery sufficient to allow the employee to "secure the necessary information to present his or her claim" into its arbitration agreement.
3. The requirement that the arbitrator issue a written arbitration award that will reveal, "however briefly, the essential findings and conclusions on which the award is based."
4. Damages may not be limited. Arbitration agreements must incorporate the substantive and remedial provisions of the applicable statute so that the parties will be able to vindicate their statutory claims in the arbitral forum.
5. A requirement for the employer to "pay all types of costs that are unique to arbitration."
In deciding the case, the Supreme Court resolved a number of conflicting appellate court decisions, thus providing, for the first time, some clear guidelines to the drafting of any mandatory arbitration policy.
Prudent employers wishing to maintain the enforceability of their arbitration agreements would thus do well to review and revise them as necessary in light of the new guidelines in this decision.
(Source: Orrick, Herrington & Sutcliffe)
Gov. Gray Davis spoke to more than 1,000 people attending the annual United Farm Workers of America's convention in Fresno on Sept. 2. It was the first appearance by a California governor at a UFW meeting since 1978.
Davis elicited loud applause when he spoke about three farm-worker-related bills he had signed moments earlier during a ceremony outside the Fresno County Sheriff's Department.
One bill sponsored by Assembly Member Dean Florez, D-Shafter, outlaws the use of wooden benches in all farm labor vans. By March 31, 2002, all vans must have seat belts and forward-facing seats. The new law also requires that all tools be secured during transportation.
"It is time that farm workers be treated like everyone else in the state," Davis said.
Davis also signed a bill by Assembly Member Sarah Reyes, D-Fresno, that provides $500,000 in tax credits for those who build farm-worker housing, and another Florez bill that would create the Farm Worker Family Wellness Program to provide health care, housing and other family services to farm workers.
The governor also has authorized the spending of $46.5 million toward the creation of farm-worker housing as part of the Farm Worker Housing Grant Fund, which has been renamed in honor of the late Joe Serna, former Sacramento mayor.
"That is more than all the governors have provided in the last 16 years," Davis said, as the audience broke out in applause.
The governor reminded the audience that farm-workers' issues are no longer just the UFW's concern. The three bills he signed earlier could not have come about without the support of the union, farm groups and the business community.
"Everyone is recognizing that the people who till the fields and pick the crops deserve decent living facilities," Davis said. "And when those homes get built, I will be down here to open the first door."
UFW President Arturo Rodriguez said he hopes Davis also signs two bills pending legislation clamping down on farm labor contractors, but he called the attention farm-worker issues have received so far a "big step forward."
Assembly Member Reyes, who wrote one of those unsigned bills, hopes the governor will agree to punish contractors who flagrantly violate the law. Her bill would, among other things, impose a penalty of up to $5,000 or require a jail sentence of up to six months.
How far the governor will go remains to be seen, but Reyes believes he already has come a long way.
After leaving the UFW convention, Davis met privately with about a dozen agricultural groups and officials. Many farm groups joined the UFW in support of the bills to require seat belts and to create tougher laws for farm labor contractors.
That alone, Reyes said, is a first. "But now you have a governor who comes in to sign three bills relating to farm-worker issues, then meets with the UFW, then turns around and meets with ag," Reyes said. "That is almost unheard of. Usually, the governors come in, meet just with ag and leave."
(Source: Fresno Bee, 9/3/00)
Dolores Huerta is easing her way out of the United Farm Workers union, which she helped found nearly 40 years ago.
Huerta chose not to seek re-election at this year's national United Farm Workers of America convention in Fresno, opting to devote her time to other projects, including Al Gore's presidential campaign. She is currently the UFW's secretary-treasurer.
Standing onstage and flanked by several of her children, Huerta urged the audience to remember the values taught by the late Cesar Chavez, co-founder of the union.
(Source: Fresno Bee, 9/3/00)
A quarter-century after it urged consumers to boycott Gallo wines, the United Farm Workers of America has won a contract with the winemaker, the world's largest.
Labor experts say the contract and recent legislative victories represent incremental gains for the union, which is still struggling to regain the power, prestige and membership it earned in the early 1970s.
Gallo workers voted in 1994 to be represented by the UFW, but negotiations have proceeded slowly since then.
The three-year pact affects only about 450 employees who work in Gallo's vineyards in Sonoma County. Entry-level employees' pay will increase 60 cents to $8 an hour, while skilled workers will get as much as $1.40 more an hour, union officials said.
Those gains are modest for workers who had once asked for starting pay of as much as $9.50 an hour and much more for experienced equipment operators. Many of the more than 80 employees who first voted for union representation six years ago have left the company.
Hundreds of other Gallo employees at other locations are not covered by the contract. At least one expert said it will be difficult for the union to spread the Gallo contract to other vintners and industries.
"I don't want to say this is an insignificant agreement. But it took a long time," said Phil Martin, a labor economist at the University of California Davis. "The fact it took six years to get the contract means it's going to be hard to say to other workers, 'join the UFW and we will get you a wage increase right away.'"
The California Industrial Welfare Commission (IWC) voted on Aug. 18 to consider increasing California's minimum wage by $1 over two years, a move that could be made final this fall.
The two-step hike would make the state's lowest wages among the highest in the country. The first 50-cent jump would occur on Jan. 1, 2001, boosting the state's $5.75 minimum hourly wage to $6.25. A second increase in the same amount would boost it to $6.75 on Jan. 1, 2002.
Richard Oliver, a lawyer with California Rural Legal Assistance in Stockton, said the wage hike would help people who barely get by on minimum-wage jobs.
But Russ Matthews, executive director for the San Joaquin County Farm Bureau Federation, cautioned that higher wages for farm workers would lead to higher costs to the consumer as farmers recoup higher labor costs.
The decision to seek a $1 boost was met with groans and hisses from labor activists who say $8 an hour is needed to keep up with the state's high cost of living.
An even higher wage increase is favored by at least two of the commissioners, but that is not enough on the five-member board appointed by Gov. Gray Davis, Commissioner Barry Broad said.
The proposed $1 increase is enough to alarm business leaders, who argue raising the minimum wage would mean lost jobs, higher insurance costs for employers and higher prices for consumers. They urged the IWC to delay the increase until Congress has decided whether to raise the federal minimum wage, now $5.15 per hour.
"I can't say that farms will leave California, because it's pretty hard to pick up a farm and move it," said Cynthia Cory with the California Farm Bureau Federation.
"But this will put us at a significant disadvantage with other states. I already speak to farmers every day who have been farming for generations, and they are going out of business."
The IWC will listen to public comments at three hearings, which will start at 10 a.m.:
Sept. 21-- Room B-109, State Building, 1350 Front Street, San Diego
Oct. 3-- Auditorium, Brown Building, 505 Van Ness Avenue, San Francisco
Oct. 5-- Auditorium, State Building, 31 E. Channel Street, Stockton
