Vol. 28, No. 2, February 1999
In This Issue
Farmworkers Gather In D.C.
New Employment Laws
Agricultural Safety-Training Certificate
Program
Union Leaders Appointed to Key State Posts
Winery Work is Not Agricultural, Says DOL
H-2A Application Approved
Failure to Supply Field Sanitation
Whom Will Gov. Appoint to ALRB
Gallo Settles ULP
Farmworkers from across the United States, the Dominican Republic and Mexico gathered in Washington D.C. in November for the First International Farmworkers Forum.
The event, hosted by the Farmworker Network for Economic and Environmental Justice, gave farmworkers a chance to share ideas about the problems confronting them in their workplaces and in the communities where they live.
Most attendees were farmworkers. Acting as delegates for their respective groups, the workers were there to support a wide range of community-based organizations and unions.
These groups included the Farm Labor Organizing Committee (FLOC), an AFL-CIO-member farmworker union operating in Florida, North Carolina, and Ohio; the Farm Worker Association of Florida, a multi-faceted organization of various grassroots outreach groups; the Washington Farm Workers' Union, and El Comite de Apoyo a Los Trabajadores Agrícolas (CATA), the Farmworkers' Support Committee from New Jersey.
Several farmworker unions did not attend. These included the United Farm Workers of America, AFL-CIO; Teamsters Local 890; United Food and Commercial Workers Local 1096; and the Pineros y Campesinos Unidos del Noroeste (PCUN), the Northwest Tree Planters and Farm Workers United.
Various community-based and non-governmental organizations such as the General Board of Church and Society of the United Methodist Church and the Rural Coalition of Washington D.C., also participated in the forum.
The task for the individual work groups, which contained representatives from each of the farm workers delegations, was to develop a list of the key problems facing hired farm workers and then propose a set of solutions for dealing with these issues.
After several hours of discussion, the 10 delegates arrived at a list of 29 priorities. Some of the most notable were:
Eleven farm workers at unionized E&J Gallo vineyards near Healdsburg received payments totaling $2,400 in settlement of charges that they had suffered discrimination due to their union activities.
Checks ranging from $11 to $900 were given out last month by officials with the state Agricultural Labor Relations Board.
While the amount of money involved is not considered large by state standards, the affected farmworkers said they felt the protracted labor dispute was worth the effort.
The awards stemmed from two separate complaints, one filed in 1994 and the other in 1996.
The 1994 allegations arose from complaints that some farm workers were not rehired for the season while other less- experienced ones were.
The 1996 grievance stemmed from complaints that some workers had been paid at general labor rates, instead of at higher rates paid to experienced machine operators.
The 1994 and 1996 complaints occurred after the United Farm Workers had begun conducting its unionization drive but before vote results were certified by ALRB labor officials.
Here are some changes affecting California's workplaces that took effect Jan. 1 (except where noted, all sections referenced are in the Labor Code):
Agricultural Packing Plants-- Employment of Minors in Lake County: Section 1393.5 was amended to extend until Jan. 1, 2002, a provision allowing 16- and 17-year-olds to work in Lake County packing houses for up to 60 hours per week where approved by the Lake County Board of Education and authorized by an exemption issued by the Labor Commissioner.
Employment Applications--Ban on Fee, Other Consideration Requirements: Section 450 provided that no employer or agent or officer of an employer may compel or coerce an employee or applicant for employment to patronize the employer, or any other person, to purchase any thing of value.
This statute was amended to provide that compel or coerce the purchase of any thing of value includes, but is not limited to, requiring a fee or other consideration from an applicant for employment for (a) an individual to apply for employment, (b) an individual to receive, complete, or submit an application for employment, or (c) an employer to provide, accept, or process an application for employment.
Cal/OSHA Targeted Inspection and Consultation Programs--Employer Assessments: Section 62.9 was amended to extend until Jan. 1, 2000, a provision authorizing the levy and collection of assessments from employers to fund Cal/OSHA's targeted inspection and consultation programs.
Employee Surveillance--Ban: New section 435 prohibits an employer from causing an audio or video recording to be made of an employee in a restroom, locker room, or room designated by an employer for changing clothes, unless authorized by court order. It also prohibits an employer from using any recording made in violation of the statute's provisions.
Industrial Welfare Commission (IWC)-- Communication of Orders: Revised section 1183 requires the IWC to prepare a summary its orders setting minimum standards for wages, hours, employment conditions, and the health, safety, and welfare of employees. Every employer subject to an IWC order must post the summary in a conspicuous place visited by employees during the workday.
Occupational Safety and Health-- Emergency Revision of Bloodborne Pathogen Standard: New section 144.7 required the Occupational Safety and Health Standards Board to adopt by Jan. 15 an emergency regulation revising its bloodborne pathogen standard. The board must complete the regulation adoption process and the final regulation must take effect by Aug. 1. The board's emergency regulation will expire when the final regulation takes effect or Aug. 1, whichever first occurs.
Employment Discrimination--Inclusion of Genetic Characteristics as Protected Medical Condition: Existing law prohibited discrimination in employment-related maters on the basis of, among other things, a cancer-related medical condition. Government Code section 12926 was amended to provide that medical condition includes genetic characteristics.
Agricultural Safety-Training Certificate Program
AgSafe, a nonprofit organization, has announced the creation of a new training program designed for the safety professional working in California agriculture.
The AgSafe Board of Directors formed a committee to explore the development of a formal safety training program for designated safety coordinators and others working in California agriculture. The committee consisted of AgSafe members and faculty from three universities: the University of California, California State University, Fresno, and Cal Poly University, San Luis Obispo.
After several meetings and the review of various plans, the committee agreed to a program design and curriculum content and an administrative structure for a safety-training certificate program.
This training course is designed as a basic class in agricultural safety. Students registered for the program must register in advance and attend all hours of instruction. Students who successfully complete the training program receive a Certificate of Completion from AgSafe.
The program consists of 20 hours of instruction, presented in five modules of four hours each. Here is a brief overview of the information presented in each module:
Module One: Introduction to Safety Laws and Regulations. Includes a review of the safety regulations affecting California agriculture, emphasizing compliance with safety order 3203, Injury and Illness Prevention Program.
Module Two: Foundations for Occupation Health and Safety. First half covers the fundamental theories, concepts and principles that guide intellectual thought, research and practices of agricultural health and safety. Second half is a practical review of workers' compensation insurance as it applies to California agriculture.
Module Three: Agricultural Workplace Injury and Illness Prevention. Greater detail will be spent on prevention priorities, hazard identification, safety-incident investigation and job-injury management.
Module Four: Effective Health and Safety Training. This class highlights effective techniques for organizing and delivering health and safety training.
Module Five: Practical Application Workshop. The class includes a practical exercise designed to apply the information provided in modules one through four. Students must attend those modules before attending this class.
Persons may enroll in the safety-training certificate program by completing a registration form and paying a registration fee to AgSafe. Once registered, students receive a Safety Training Resource Binder that includes a Student Workbook for all five modules. Registered students receive updated information on where and when the training modules will be presented.
While one need not be an AgSafe member to register for the program, members do receive a registration discount.
Students may attend any training class without being registered in the certificate program. Students not registered for the certificate program pay an enrollment fee for each class they attend and receive a Student Workbook when they enroll. Students not registered for the certificate program do not receive a Certificate of Completion.
Whom Will Gov. Davis Appoint to the ALRB?
Agricultural industry and union officials are anxiously waiting for Gov. Gray Davis to name three persons to the five-member Agricultural Labor Relations Board, giving the new Democratic administration an instant majority on the panel.
But of even greater intrigue is the issue of when ALRB General Counsel Paul Richardson will leave and be replaced by a Davis appointee.
Davis once served as chief of staff to Democratic Gov. Jerry Brown, whose earliest major political achievement was enactment of the unprecedented California agricultural labor relations law enforced by the ALRB
Davis spokesman Michael Bustamante said the governor must fill thousands of state jobs in the coming months, and "it certainly would be too early" for him to comment on who will be appointed to the ALRB board.
One name that has repeatedly surfaced for a potential appointment is that of Sacramento Mayor Joe Serna Jr., even though Serna has said he plans to run for re-election in 2000.
Both ALRB board members and the general counsel are subject to confirmation by the state Senate.
A big question surrounding the ALRB's future is when general counsel Richardson will leave his job. Richardson claims his term ends in August 2000 and has said he doesn't "want to make a commitment" as to when he will actually leave. But the Democratic-controlled state Senate has said Richardson's term of office ends much earlier--in July 1999.
Then-Gov. Pete Wilson appointed Richardson--a Republican and former Placer County district attorney--on July 25, 1995. He was confirmed in August 1996 by the Senate on a 37-0 vote.
Richardson claims his four-year term began upon his confirmation, not his appointment.
Union Leaders Appointed to Key State Posts
As expected, unions have started to receive their "payoff" from Gov. Gray Davis for vigorously supporting his candidacy. So far, he has appointed union leaders to several key state posts, including:
Steve Smith, Director of the Department of Industrial Relations. Smith managed Californians to Protect Employee Rights (No on Prop. 226).
Marcy Vacura Saunders, Labor Commissioner, Division of Labor Standards Enforcement. Saunders headed the Building and Construction Trades Council of San Mateo County.
Dallas Jones, Director of the Office of Emergency Services. Jones served as California Labor Federation (CLF) Vice President and Secretary-Treasurer of the California Professional Fire Fighters.
Bill Lloyd, Director of Senate Relations and Labor Issues, a newly-created position. Lloyd served as CLF Vice President, and he led Service Employees International Union (SEIU) Local 790.
Jane Crawford, Deputy Director of Appointments. Crawford served with the Fire Fighters union.
Marty Morgenstern, Director of Personnel. Morgenstern was with UC Berkeley's Labor Center, California State Employees Assoication (CSEA) and AFSCME, (a federal employees' union).
Winery Work is Not Agricultural, Says DOL
Employment in a winery--even one where only grapes grown in the winery's own vineyards are crushed--is not considered agriculture under the federal Fair Labor Standards Act (FLSA), says Anthony Perrou, District Director of the U.S. Department of Labor's Wage and Hour Division in Sacramento.
This means that an employee who either works exclusively in a winery, or who switches between vineyard work and winery work within a workweek, may work only 40 hours in that workweek at his regular pay rate. For work beyond that limit, the employee must be paid under the FLSA an overtime premium at a rate of 1˝ times his regular pay rate.
In contrast, an employee is exempt from FLSA overtime in any workweek in which he works only in agriculture. Further, an employee working in an agricultural occupation as defined in California Industrial Welfare Commission Order No. 14-80 may work up to 10 hours in a workday and on six days of a workweek at his regular pay rate.
The FLSA regards a "mixed-work" employee (i.e., one doing both agricultural and nonagricultural work in a workweek) as a nonagricultural employee for the whole workweek, even if the ratio of nonagricultural to agricultural work is small.
Take, for example, an employee who, over six 10-hour workdays in a workweek, works only one hour in the employer's winery and the other 59 hours doing agricultural work in the employer's vineyard. Under the FLSA, this employee must be paid time-and-a-half for the 20 hours worked beyond the 40-hour limit.
(In contrast, under California law, the hours worked in agriculture under Order 14 do not count toward either the eight-hour daily limit or 40-hour weekly limit under IWC Order No. 13, Industries Preparing Agricultural Products for Market, On the Farm.)
Perrou explains his reasoning as follows:
Under section 780.105(c), 29 CFR, secondary agriculture includes operations other than those that fall within the primary meaning of agriculture. It includes practices-- whether or not they themselves are farming practices--performed either by a farmer or on a farm as an incident to or in conjunction with "such" farming operations.
However, practices that are conducted as a separately organized productive activity would not be considered secondary agriculture. Employment not within the primary or secondary meaning of "agriculture" as defined in section 3(f) of the FLSA in not "employment in agriculture."
Generally, a practice performed in connection with farming operations is within the statutory language only if it constitutes an established part of agriculture, is subordinate to the farming operations involved, and does not amount to an independent business. Industrial operations and processes that are more akin to manufacturing than to agriculture are not included.
[S]ection 13(b)(12) of the FLSA is an agriculture exemption from the overtime provisions. In addition, section l3(b)(l6) exempts operations of preparing for transportation and transporting "fruits or vegetables" that are "just harvested" and still in their raw or natural state.
Hence, employees harvesting grapes in the vineyard, preparing grapes for transportation, and transporting the grapes still in their raw or natural state to the on-site winery would meet the exemption test under section 13(b)(12) or section 13(b)(16).
However . . . the winery is in the business of making wine for market, thereby aligning itself to a process of an industrial nature rather than one of agriculture. Thus, wineries would not meet the meaning of secondary agriculture under section 3(f) of the FLSA.
Failure to Maintain Supplies is a Failure to Provide Field- Sanitation Facility, Court Rules
The Sacramento County Superior Court ruled last month that the Occupational Safety and Health Appeals Board exceeded its authority by establishing an "exception" to the mandatory $750 minimum penalty for failures to provide field sanitation facilities. A state regulation requires that toilets, drinking water, hand-washing facilities and related supplies be available at all times to farm field workers.
The decision by Judge Talmadge Jones came in response to an action filed by California Rural Legal Assistance Foundation (CRLAF) and California Rural Legal Assistance, Inc. (CRLA), which represented farm worker Mauricio Dominguez against the board. The organizations challenged six Decisions After Reconsideration (DARs) the board issued in June 1998.
The board itself had asked for review after issuing the six DARs in which it overturned "inflexible" penalties the Division of Occupational Safety and Health had imposed after field inspections found an absence of exhaustible items such as toilet paper and single-use drinking cups and towels.
The key DAR, Emerald Produce, held that the lack of any such item established a rebuttable presumption of a failure to provide a required facility, justifying the imposition of the minimum $750 penalty.
The board, however, added that an employer may rebut that presumption by showing it regularly provides the item, is reasonably diligent in checking for and restocking the item, and that its absence was due to a brief lapse in maintenance. While this type of situation still amounts to a violation, the minimum $750 penalty should not be imposed for it, the board said.
Applying that approach in the other five cases, the board approved penalty reductions in two cases where employers had failed to provide cups and toilet paper.
In their court appeal, CRLAF and CRLA argued that the Emerald Produce decision was contrary to California Labor Code section 6712, which establishes a single, irreducible penalty for violations of the field-sanitation standard. "This legislation was unique because of the recognition of the serious health hazards--from E. coli contamination to heat fatigue and exhaustion--that the standard was designed to alleviate" asserted CRLA attorney Cynthia Rice.
Judge Jones ruled the Appeals Board had no authority to create an exception to the minimum penalty "out of whole cloth."
Appeals Board chief counsel Carol Brown said, "The court held there are no exceptions to the minimum statutory penalty." She added that the board still has time to consider an appeal, "as do any of the real parties in interest"--employers or the Division.
CRLA hailed the ruling as important to the health of farmworkers and consumers throughout California. "It recognizes that the public should not be subjected to the possibility of food contamination and workers should not be forced to risk personal exposure to disease or pesticide poisoning because it is not convenient for a grower to ensure that toilet paper, single-use drinking cups and soap and towels are available at all times," said Maricela Fernandez of CRLA's Stockton office.
The decision means the Appeals Board must reconsider the six DARs and issue new decisions consistent with the ruling.
(©1999 Cal/OSHA Reporter. Used with permission. (530) 470-7500)
Robert Jacildone, a Fresno farm labor contractor, waits in the Philippines to bring farmworkers across the Pacific to work in San Joaquin Valley fields.
Jacildone is in Manila, where he has won 34 visas so far, authorizing Filipino workers to visit the United States as temporary foreign workers under the H-2A program, Mel Tano, a Visalia labor consultant to Jacildone Tano says. He has federal permission to bring 145.
H-2A allows foreign agricultural labor--in the absence of available, qualified domestic workers--to be admitted temporarily to tend and harvest U.S. crops .
Tano--a former Hawaiian farmworker who became a State Department diplomat in Belize, Peru and Japan--operates Asian Pacific Protocol, an H-2A consulting business in Visalia. He says he and Jacildone followed all H-2A program requirements before resorting to foreign workers.
Tano says he advertised job vacancies and posted notices with the Employment Development Department, yet got almost no response. He shows copies of ads that ran in The Fresno Bee and the Hi-Desert Star in San Bernardino County.
The claim of a lack of farmworkers already here infuriates farmworker advocates such as Pablo Espinoza of Visalia. He and others have warned about unemployment since the December freeze killed citrus and vegetable crops--and the farm work that went with them.
Why bring workers from the Philippines, they ask, when thousands of farmworkers from Kern through Merced counties cry out for just such work?
Tano's answer pushes farmworker advocates beyond anger to bewilderment and disbelief. Tano says Jacildone needs to bring workers from the Philippines because Valley people won't take the jobs, despite the $6.87 hourly pay Jacildone offers, which is above prevailing farm work rates of generally less than $6 an hour.
Tano asked the U.S. Dept. of Labor last summer to authorize Jacildone's Ag-One farm-labor business to hire and bring in Filipino workers to work at Valley and San Bernardino farms. The Labor Dept. granted the request Sept. 2, authorizing Ag-One to hire 145 workers from Sept. 20 1998, to Aug. 30, 1999.