Agribusiness argues there is already a remedy in the existing Agricultural Labor Relations Act--"a powerful tool"*--against growers who don't bargain in good faith for union contracts.

That solution is the 1975 law's "make-whole" remedy. Under make-whole, employers must make their workers "whole" for economic losses suffered from violations of the law such as failing to negotiate in good faith.

But the make-whole remedy doesn't work.

It takes years, sometimes decades, of investigation, prosecution and litigation before farm workers receive anything from the make whole remedy. Growers who appeal can take multiple trips to the appellate courts. Agricultural Labor Relations Board Chairwoman Genevieve Shiroma reports that the ALRB has issued a total of more than $34 million in make-whole orders--requiring growers to pay farm workers damages because employers didn't bargain in good faith. But only $4.4 million has actually been paid to aggrieved workers. (Shiroma's May 1, 2002 letter to state Sen. Michael Machado (D-Stockton).)

"Delay remains inevitable" under the current law, wrote Chairwoman Shiroma. By the time "make-whole orders become final, they may be unenforceable, either because the [grower] has gone out of business or [is] unable to pay [or because] many of the [farm workers] to whom make-whole is owed have vanished."

Cesar Chavez believed the average career life span of a migrant or seasonal farm worker was about seven years. After that the work is so hard and the pay is so poor that most workers either stop coming or go into some other line of work. And with no seniority or job security, there is little incentive for a worker to stay with one employer for very long. By the time make-whole awards are finalized, most workers are no longer around.

Chairwoman Shiroma also listed 58 growers against which the ALRB has issued make-whole awards; only four of them currently have UFW contracts.

Why not just fix the make-whole remedy?

First, lengthy delays are unavoidable, even if the existing make-whole remedy was modified. If there is the possibility of a substantial penalty, which make-whole can involve, the judicial system has to impose due process protections.

Also remember the U.S. Supreme Court's decision this year in the Hoffman Plastics case effectively eliminates make-whole or back-pay remedies for all undocumented farm workers, which is a majority of the California farm labor work force. These workers now get no relief from the make-whole remedy.

How would SB 1736 be an improvement?

* The current law's make-whole remedy focuses on the procedures of collective bargaining. Are the parties meeting? Are they going through the motions of bargaining? Too many growers and their lawyers have become adept at going through the motions of negotiations but never reaching agreement. Make-whole is about each side blaming the other for the breakdown in talks.

* SB 1736 focuses on the substance of a fair agreement--first through mediation and then a "no fault" alternative dispute resolution or binding arbitration process. The parties would have 90 days to negotiate themselves. If there is no agreement, a mediator would be brought in for 30 days. If there is still no contract, then either side could ask for binding arbitration.

* Under SB 1736, the parties would make much use of the bill's mediation process, which precedes arbitration. Neither party would very often leave issues to be decided by a third-party arbitrator. In that way it would strengthen, not weaken, collective bargaining.

* Today so often a dispute gets decided depending on which side can better withstand years of costly litigation--or which side has more raw power in the work place through strikes or in the marketplace with boycotts.

SB 1736 would force each party to make its best case on the merits of its positions--either to a mediator or an arbitrator. The parties would have to present the facts and marshal the arguments. They would have to resolve their differences based on a sober assessment of the reasonableness of their positions.

SB 1736 may not always produce the results the UFW wants in negotiations; but at the end of the day the farm workers would at least get a contract.

* SB 1736 would save money for both the union and grower. The state Department of Finance testified in the Assembly Appropriations Committee that the bill would save the state money by avoiding the major costs associated with make-whole.

Is the remedy in SB 1736 fair?

SB 1736 is about righting historic wrongs.

No other group of workers were--and continue to be--excluded from the protections of state and federal law.

Farm workers are still excluded from the nation's labor laws. They weren't covered under the California farm labor law until 1975, 40 years after the National Labor Relations Act was created for industrial workers.

For years farm workers were exempt from workers compensation and, until the mid-1970s, from unemployment insurance. They are still excluded from the Fair Labor Standards Act. And farm workers continue to be afforded less protections under the state minimum wage and hour laws. (Most California workers get overtime after eight hours a day or 40 hours a week; it's 10 hours a day and 50 hours a week for farm workers.)

Those decades of discrimination are reflected in the grinding poverty farm workers continue to face. With the exception of the minority of workers protected by UFW contracts, farm workers make less money today than they did 12 or 15 years ago. The U.S. Department of Labor reports that 75% of California farm workers earn less than $10,000 per year and 90% have no health coverage.

* Western Growers Association news release, Aug. 22, 2002.

United Farm Workers of America, AFL-CIO
August 2002