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1608 PD: Dairying in a union world: Solving labor relations challenges for dairy producers

Anthony P. Raimondo Published on 06 November 2008

In recent years, unions have increasingly targeted dairies in their organizing efforts. As organized labor searches for ways to avert a decades-long decline in private industry union representation, unions have targeted industries that employ Hispanic workers, and have focused on industries that cannot be “off-shored,” including the hospitality, construction and janitorial industries. The dairy industry fits this profile, and more and more milk producers find themselves confronted by union-organizing campaigns.

Most union organizing in the United States is largely governed by federal law. However, agriculture (including the dairy industry) is exempt from the federal laws that govern relationships between employers and unions, leaving agricultural labor relations primarily a matter of state law.

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A majority of states have no laws governing labor relations in agriculture. The only exceptions are California and Arizona, both of which have passed laws governing union activity in agriculture. In California, labor relations in agriculture falls under the Agricultural Labor Relations Act (ALRA), which is administered and enforced by the Agricultural Labor Relations Board (ALRB). In Arizona, the Agricultural Employment Relations Act (AERA) is enforced and administered by the Agricultural Employment Relations Board (AERB). California dairies experience a regulated process in labor relations, while dairies in most other states operate in an entirely unregulated arena without a legal framework to establish employer, worker and union rights.

The California experience: Organizing and elections
Since 1975, unions in California agriculture have operated under the ALRA, which provides a mechanism for employees to decide on union representation through government- conducted secret ballot elections. California law provides a range of rules that govern what unions and employers can and cannot say in the course of a union-organizing campaign, and regulates pre-election conduct of the parties. The law establishes who is eligible to vote, and establishes unfair labor practices (ULPs) for certain types of conduct. An amendment is pending to the ALRA which will eliminate elections and allow unions to organize before employees hear the employer’s point of view. This presents the greatest threat to California dairies, as it will provide unions with a significant organizing advantage.

The cornerstone of the California law is based on federal labor relations law – establishing the workers’ right “to engage in self-organization or other concerted activity for the purpose of collective bargaining or other mutual aid and protection.” Interference with these rights constitutes an unfair labor practice, as does discrimination against employees for engaging in union activity or other protected activity.

California law also limits employers’ private property rights, unlike other states. A union can file a Notice of Intent to Take Access (NA) with the ALRB, and obtain the right to enter dairy property to speak to employees during designated times.

In California, unions organize dairies for the purpose of winning elections. Activity on both sides is regulated by the ALRB, and monetary penalties and damages, and even court-ordered injunctions can result from violations of the law. Both the United Farm Workers Union (UFW) and the United Food and Commercial Workers Union (UFCW) have organized dairies under this set of laws, and the organizing push is continuing and increasing.

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Once a union wins an election, the employer must negotiate toward a comprehensive collective bargaining agreement, and must attempt to reach an agreement. Producers with 25 or more employees who are negotiating a first contract can have a contract imposed upon them by a state mediator if negotiations do not result in a contract. After 180 days, the parties can proceed to a state mediator, who will consider both parties’ positions and will decide the terms of the final agreement.

Under California law, once a union files the paperwork for an election and demonstrates that 50 percent of the employees have signed authorization cards or a petition in support of the union, an election will usually be scheduled in seven days. This leaves an employer that has not been abreast of labor relations issues in the workplace at a decided disadvantage in the critical days leading up to an election. In every state, dairy employers must consider their labor relations strategies before the union comes knocking, and before it is too late.

The Oregon experience: The wild, wild West
Like most states, Oregon has no law governing union organizing and labor relations in agriculture. Unlike California, dairies can bar organizers from the premises, and there is no means by which the union can obtain an election and legal status as the exclusive bargaining representative of the workers. Notwithstanding the absence of elections, Oregon has seen aggressive organizing in the dairy industry, primarily by the UFW. Starting in 2003, the UFW began organizing a large Oregon dairy. Without the means to obtain an election, the union unleashed a “corporate campaign,” a multifaceted effort to bring public pressure and economic pressure upon the employer to accede to the union’s demands.

In Oregon, the corporate campaign included the creation of negative publicity and economic pressures through a flurry of lawsuits. The union targeted boycott pressure on customers, urged a bank to cut off the dairy’s credit and generated as much bad press for the company as it could. The union reported the company to Oregon’s OSHA, and used litigation as a weapon, suing the dairy for alleged violations of state and federal employment laws. The company paid a $250,000 settlement to resolve overtime claims of employees who were bagging compost for public sale, a non-agricultural activity subject to federal overtime laws, and $70,000 and nearly $200,000 to settle two sex discrimination lawsuits.

In the face of tremendous pressure, the dairy ultimately signed a contract with the UFW, and will move forward as a union operation. The UFW has moved onto its next target, and has currently mounted a corporate campaign against a large Oregon feedlot.

What to do: Labor relations planning
While wages and benefits are certainly important issues to workers who seek union representation, the most common issues that drive union organizing are treatment issues. Workers who are mistreated or who perceive themselves as being mistreated, become powerful activists for nascent union movements. Dairy employers should review their practices now in a proactive effort to address labor relations issues before they drive workers to seek assistance from unions. Often labor relations issues are small frustrations that grow in significance like a pebble in the worker’s shoe; if not addressed, they can spark organizing efforts. Dairy employers should take the following steps:

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1. Establish lines of communication
Often, communication with a Spanish-speaking workforce can be difficult for English-speaking ownership or management. Those who are not bilingual should have a bilingual supervisor or a bilingual worker who is trusted to serve as a liaison to the workforce. Dairies should have periodic tailgate meetings on safety and other topics, and should conserve a small portion of the meeting for workers to air grievances and raise issues of concern.

Management should be sure to follow up on issues raised by the workers, either addressing and resolving them if possible, or by explaining the reason the dairy cannot provide what is desired. If workers feel they have a voice in their workplace, they will not seek a union. Dairies should have “open door” policies and an avenue for workers to complain without having to go through their immediate supervisors.

2. Review compensation and benefits
Dairies should pay attention to wage and benefit levels in their area and should be sure to remain competitive.

3. Ensure legal compliance
Dairies should self-audit to be sure they are in compliance with applicable laws and regulations in their state. Many union-organizing campaigns have focused on issues such as unpaid overtime wages and meal period violations; every dairy should know its obligations under state and federal law. Remember, litigation can be expensive and enables a union to tell workers it put money in their pockets.

Similarly, discrimination and harassment claims are increasing on dairies, and it is becoming increasingly important to have anti-discrimination and anti-harassment policies and complaint procedures in place. Compliance issues can trigger litigation, and can provide fodder for negative publicity in a corporate campaign.

4. Improve documentation
Record keeping is critical in human resources administration. Employees should know what the rules are ahead of time, and discipline should be imposed consistently. Be sure to record warnings issued to workers, and to keep records of all training provided to workers. If you don’t start documenting until after the union shows up, it will be difficult, if not impossible, to defend charges of discrimination.

5. Monitor working conditions
The smallest improvements in working conditions can yield tremendous dividends. One California dairy brought in refrigerated bottled water dispensers after hearing complaints about the taste of the local tap water. The day the trucks rolled in with the first water delivery, the dairyman said “it was like Christmas and New Year’s rolled together.” The workers have respected what they have been provided, have not abused the water by taking coolers home, and have not created litter with used cups. This type of small measure involving minimal expense provides untold benefits in labor relations.

What to do: What if I get organized?
Many businesses have continued and have prospered after workers choose union representation. While it can be more difficult to operate with a union, benefits can be achieved. It will be critical to have experienced legal representation in the negotiation of a collective bargaining agreement, as the agreement will establish the terms and conditions of employment for the workers, as well as the rights and obligations of the union and the employer. Gains can be achieved in collective bargaining, particularly in areas such as work standards and milk quality, and these non-economic gains can translate into economic prosperity. It will be important going into collective bargaining to work with your negotiator to develop an overall game plan with specific goals to be achieved in the course of the negotiation. With this approach, an employer can continue to prosper even if its workers choose union status. PD

Anthony P. Raimondo
legal counsel for Western United Dairymen

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