LABOR-MANAGEMENT
RELATIONS IN AGRICULTURE:
THE NEED FOR MEANINGFUL
COLLECTIVE BARGAINING
I.
INTRODUCTION
In 1935 Congress passed and the President signed the National
Labor Relations Act (NLRA).' As reported to the Senate by the
Committee on Education and Labor, 2 and as approved in its final
form, the legislation excluded agricultural labor from its protec3
tions.
The intent of the NLRA can best be observed by section 7 of the
Act which then provided:
Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or
protection.'
Twelve years later, the NLRA was amended by the TaftHartley Act 5 because of the belief that it had caused a great
amount of industrial strife. Congress recognized a need to bring
about a balance in labor-management relations after 12 years of
government encouragement of unionism. The NLRA as amended
placed the federal government in the role of protector, regulator,
and arbiter of labor-management relations.6
1. National Labor Relations Act (Wagner Act), 49 Stat. 449 (1935) [codified in
scattered sections of 29 U.S.C.].
2. S. REP. No. 573, 74th Cong., 1st Sess. 7 (1935).
3. 29 U.S.C. § 152(3) (1970).
4. 49 Stat. 452 (1935).
5. Labor-Management Relations Act of 1947 (Taft-Hartley Act), 61 Stat. 136
[codified in scattered sections of 29 U.S.C.]. Twelve years later the NLRA was
again amended to correct abuses that were uncovered in the internal workings of
labor unions and to tighten the Act's restrictions on secondary boycotts. LaborManagement Reporting and Disclosure Act (Landrum-Griffin Act), 73 Stat. 537
(1959) [codified in scattered sections of 29 U.S.C.].
6. See S. REP. No. 105, 80th Cong., 1st Sess. 2 (1947). Section 7 of the NLRA
was amended by placing the following phrase at the end of that section:
• . . [A]nd shall also have the right to refrain from any or all of such
activities except to the extent that such right may be affected by an agree-
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[Vol. 23
In 1935 and again in 1947, when the substantive role of the federal
government in labor-management relations was being considered,
the Congress clearly decided to exclude farm workers from coverage.' Section 2, the definitions section of the Act, provides that "the
term employee . . .shall not include any individual employed as
an agricultural laborer.
...
8
For some time since the passage of the NLRA, problems have
arisen as to exactly who should be considered an agricultural laborer.' There also has been a great deal of conjecture as to why the
ment requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
29 U.S.C. § 157 (1970) (emphasis added).
7. This brief review of the NLRA is included only so as to give the reader a broad
outline of the intent of Congress. It is necessary to allow one to compare the position
of the industrial worker vis-A-vis the farm worker.
8. 29 U.S.C. § 152(3) (1970).
9. The agricultural exemption does not extend to either food processing or commercial shed workers. G.L. Webster Co., 133 N.L.R.B. 440, 441-42 (1961); North
Whittier Heights Citrus Ass'n, 10 N.L.R.B. 1269, 1283-84 (1939), aff'd, 109 F.2d
76 (9th Cir.), cert. denied, 310 U.S. 632-33 (1940); American Fruit Growers, Inc.,
10 N.L.R.B. 316, 328-29 (1938). See Morris, Agricultural Labor and National
Labor Legislation, 54 CALIF. L. REv. 1939, 1956-64 (1966).
Beginning in 1946, Congress has sought to clarify the agricultural exemption
while applying tighter restrictions on the National Labor Relations Board's jurisdiction. Since 1946 the following has appeared as a rider to the congressional
appropriations for the NLRB:
[N]o part of this appropriation shall be available to organize or assist in
organizing agricultural laborers or used in connection with investigations,
hearings, directives, or orders concerning bargaining units composed of agricultural laborers as referred to in section 2(3) of the Act of July 5, 1935 (29
U.S.C. § 152), and as amended by the Labor-Management Relations Act,
1947, as amended, and as defined in section 3(f) of the Act of June 25, 1938
(29 U.S.C. § 203). ...
79 Stat. 609 (1965).
The Fair Labor Standards Act definition that the NLRB has recognized with
respect to agriculture is the following:
Sec. 3. As used in this Act...
(f) "Agriculture" includes farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the production for
cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141J (g) of Title 12), the raising of livestock, bees, fur-bearing animals,
or poultry, and any practices (including any forestry or lumbering operations)
performed by a farmer or on a farm as an incident to or in conjunction with
such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to,market.
19731
COLLECTIVE BARGAINING
exclusion was placed in the Act in the first place. Although farm
workers were not excluded by Senator Wagner in his original proposal,'" the exclusion was made part of the bill as reported by the
Senate Education and Labor Committee in both 1934 and in 1935
when the Act was finally approved. The exclusion was accomplished
with very little legislative debate despite the fact that it represented
a change from the original bill.!
There have been a variety of reasons put forth since 1935 to explain why agricultural workers were excluded. The committee report from the Senate Education and Labor Committee on S. 195812
in the 74th Congress gave no real underlying reason for the exclusion:
For administrative reasons, the committee deemed it wise not to
include under the bill agriculturallaborers, persons in domestic service of any family or person in his home, or any individual employed
Fair Labor Standards Act, 29 U.S.C. § 203(f) (1970). See Snake River Trout Co.,
129 N.L.R.B. 41, 42 n.2 (1960). In DiGiorgio Fruit Corp. v. NLRB, 80 N.L.R.B. 853
(1948), aff'd, 191 F.2d 642 (D.C. Cir.), cert. denied, 342 U.S. 869 (1951), the Board
took the position that "[t]he ultimate test is whether the services of the employees
involved are performed in connection with a mercantile enterprise or an agriculture
operation." 80 N.L.R.B. at 855. For an extensive analysis of cases interpreting the
agricultural exemption in the NLRA as defined under the Fair Labor Standards
Act, see Kovarsky, Congress and Migrant Labor, 9 ST.Louis U. L.J. 293, 328-45
(1965); Rummell, CurrentDevelopments in FarmLabor Law, 19 HASTINGS L.J. 371,
374-77 (1968).
10. S.2926, 73d Cong., 2d Sess. § 3(3) (1934) defined employee in the following
manner:
The term "employee" means any individual employed by an employer
under any contract of hire, oral or written, express or implied (including any
contract entered into by any helper or assistant of any such individual,
whether paid by him or his employer, if such assistant or helper is employed
with the knowledge, actual or constructive, of the employer), or any individual formerly so employed whose work has ceased as a consequence of, or in
connection with, any current labor dispute or because of any unfair labor
practice: Provided,that the term "employee" shall not include any individual who has replaced a striking employee. Wherever the term "employee" is
used, it shall not be limited to mean the employee of a particular employer,
but shall not embrace any employee, unless the Act explicitly states otherwise.
Id. See NATIONAL LABOR RELATIONs
LABOR RELATIONs ACr 1-14 (1949).
BOARD, LEGISLATIVE HISTORY OF THE NATIONAL
11. Id. at 269, 1099, 1102, 2508, 2936, 2983, 3081, 3200-04. Very little debate
concerning the agricultural exclusion occurred when the Taft-Hartley Act was
debated. Id. at 308, 359, 425, 467, 500, 536-37, 985, 998, 1036, 1148, 1537.
12. S.REP. No. 573, 74th Cong., 1st Sess. (1935).
THE AMERICAN UNIVERSITY LAW REVIEW
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by his parent or spouse.' 3
The most outspoken opposition to the exclusion was voiced by
Congressman Vito Marcantonio. In the House Report on that body's
approval of their version of S. 1958, Congressman Marcantonio
stated:
I, therefore, respectfully submit that there is not a single solitary
reason why agricultural workers should not be included under the
provisions of this bill. The same reasons urged for the adoption of this
bill in behalf of the industrial workers are equally applicable in the
case of agricultural workers, in fact more so as their plight calls for
immediate and prompt action."
During the House debate on the NLRA, Congressman Marcantonio
offered an amendment to strike the exclusion but it was defeated
on a voice vote.'5
The very short debate on the amendment and the legislative history of the NLRA give no conclusive reason why the agricultural
exclusion was made part of section 2(3) of the Act. For instance, the
Chairman of the House Committee on Labor, Mr. Connery, said:
".. . I certainly hope [the agricultural workers] will organize just
the same as industrial workers."'" Although Connery denied that the
strategy was to exclude agricultural workers until such time that
approval of federal protection of the collective bargaining process
and the encouragement of union organization was realized,' 7 this
13. Id. at 7 (emphasis added). The exclusion does not forbid agricultural workers
to organize on a collective basis. The exclusion does mean, however, that the
federal government will not protect agricultural workers in any action they might
take to organize; in other words, employers (and for that matter, unions) can legally
engage in a certain activity which would be an unfair labor practice if the employees were industrial workers.
14. H.R. REP. No. 972, 74th Cong., 1st Sess. 28 (1935).
15. 79 CONG. REC. 9720-21 (1935).
16. Id. at 9721.
17. During that same short debate on Congressman Marcantonio's amendment,
Congressman Connery said:
Mr. Chairman, the committee discussed this matter carefully in executive
session and decided not to include agricultural workers. We hope that the
agricultural workers eventually will be taken care of. I might say to my friend
from New York [Rep. Marcantonio] at this point, certainly I am in favor of
giving the agricultural workers every protection, but just now I believe in
biting off one mouthful at a time. If we can get this bill through and get it
working properly, there will be opportunity later, and I hope soon, to take
care of the agricultural workers.
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COLLECTIVE BARGAINING
appears to be the most convincing reason for the exclusion. 8 Other
reasons tendered have been that perhaps agriculture was not considered to be in interstate commerce 9 or that the Congress had recognized the inherent distinctions between agricultural and industrial
operations."
The intent of this comment is to evaluate the current developments with respect to collective bargaining for agricultural workers
in the United States at both the state and federal levels. 2 Examina18. Morris, supra note 9, at 1956, notes that Congress in 1935 was so proagriculture that the agricultural interests never were forced into a position to make
a public argument rebutting the desirability of farm worker inclusion in the NLRA.
He contrasts their strength with the more weakened position of industrial management which fought the NLRA very strongly. Kovarsky, supra note 9, at 328-29,
adds that perhaps unions did not press for the coverage of agricultural labor because farms were uniquely difficult to organize and because of the belief on the part
of unions that they should at that time concentrate their efforts on traditional blue
collar industries in order to assure themselves the greatest amount of success. Still
others have made note of the basic lack of political organization and influence of
farm workers due to their transient nature of life, lack of education, etc. See
generally Keisker, Harvest of Shame, COMMONWEAL, May 19, 1961, at 202, 203.
Another contributing factor could have been the extent of agricultural union organizational drives ending in failure. See generally C. McWmLiAMs, FAcToRoEs IN THE
FIELD (1939).
19. 79 CoNG. Ruc. 9721 (1935) (remarks of Rep. Ellenbogen).
20. This distinction was described in the following manner by one author:
In part, this exclusion has been a result of the tradition which portrayed
the American agricultural laborer as the son of the farmer, working for another farmer so as to gain the experience and some capital necessary to help
him rise. . . . He was the social equal of his employer, ate at the same table
with him and slept under the same roof. . . . It is easy to see why most social
legislation-even that of the New Deal-excludes the farm worker.
Schwartz, On the Wage Structure of Agriculture, 57 POL. SCL Q. 411, 412-13
(1942).
21. The historical aspects of the agricultural exclusion have received broad treatment. See Kovarsky, supra note 9, at 328-29; Morris, supra note 9, at 1939-41,
1951-64; Rummell, supra note 9, at 371; Comment, The Farm Worker: His Need
For Legislation, 22 U. ME. L. Rv. 213, 219-22 (1970); Comment, Unionizationof
the AgriculturalLabor Force:An Inquiry of JobProperty Rights, 44 S. CAL. L. REv.
181, 188-95 (1971); Comment, Florida's Forgotten People: The Migrant
Farmworkers, 23 U. FLA. L. REv. 756, 759-64 (1971); Note, Labor Law-The
Migrant Farmworker-Aid Through Legislation, 22 MERcER L. REV. 797, 800-02
(1971). Besides collective bargaining, farm workers are affected directly and indirectly by a variety of federal and state statutes including laws on minimum wages,
child labor, health and safety, working conditions, labor contractors, workmen's
compensation, unemployment compensation, transportation, employment agencies, housing, alien employment and public service employment programs, and
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 23
tion will also be made of the farm labor movement, which will
extend to an examination of the two primary unions involved in this
area-the United Farm Workers (UFW)22 and the International
Brotherhood of Teamsters. Finally, an analysis of the desirability of
federal protection for the agricultural worker will be considered.
II.
EXISTING STATE LAWS
The failure of the federal government to "occupy the field" by
excluding agricultural workers from its law, provides individual
states the opportunity to enact their own laws in this area. Very few
states have utilized this opportunity. Several states have enacted
so-called "little Wagner Acts,"' ' but most of these statutes have
education. This comment deals specifically with collective bargaining which this
author believes to be the most crucial topic in the agricultural labor field. For a
current listing of laws relating to farm workers see STAFF OF SUBCOMM. ON MIGRATORY LABOR OF THE SENATE COMM. ON LABOR AND PUBLIC WELFARE,
SESS.,
92D
CONG., 2D
FEDERAL AND STATE STATUTE RELATING TO FARMWORKERS, A COMPILATION
PRINT 1972). President Nixon has recommended extention of unemployment compensation insurance coverage to farm workers. Scheduled to go into effect
in January, 1975, the plan, if adopted, would cover any farm employer who employs
four or more workers in each of 20 weeks in a calendar year or who pays wages of a
minimum of $5,000 in a previous quarter of a year. The legislation would bring
about two-thirds of all farm workers and approximately seven percent of all farms
under the federal-state unemployment compensation system. See Job Security
Assistance Act of 1973-Message from the President, 119 CONG. REc. 7197-98
(daily ed. April 12, 1973). Legislation providing a simple extension of unemployment insurance to farmworkers has been introduced by Representative O'Hara of
Michigan. H.R. 881, 93d Cong., 1st Sess. (1973).
22. The United Farm Workers (UFW) was previously known as the United Farm
Workers Organizing Committee (UFWOC). When the Organizing Committee, led
by Caesar Chavez, sought in mid-1972 to have the AFL-CIO change its charter from
an organizing charter to an international charter, the organization became UFWU.
Recently, during a three day convention to draft a constitution, the organization
dropped "Union" from its title, thus becoming UFW. See Wash. Post, Sept. 25,
1973, at 5, col. 1; text accompanying notes 89-111 infra.
23. See, e.g., COLO. REV. STAT. 1963 §§ 80-4-1 to -22, as amended, (Supp. 1965,
1969, 1971); CONN. GEN. STAT. ANN. §§ 31-101 to -l11b (1972); HAWAII REV. STAT.
tit. 21, § 377-1 to -18 (1968), as amended, tit. 21, § 377-1 (Supp. 1972); ANN. LAWS
OF MASS. ch. 150A (1965), as amended, ch. 150A, §§ 1, 2, 3A, 4C, 5A, 9A (Supp.
1972); MICH. STAT. ANN. § 17.454 (1968), as amended, §§ 17.454(2), (3), (5) (Supp.
1973); MINN. STAT. ANN. §§ 179.01-.47 (West 1966), as amended, §§ 179.02-.08,
.09, .16, .19, .22, .23, .38 (Supp. 1973); N.Y. LABOR LAW, §§ 700-17 (McKinney
1965), as amended, §§ 701, 708, 715, 716 (Supp. 1972-73); N.D. CENTURY CODE
(COMM.
§ 34-12 (1960); ORE. REV. STAT. ch. 653 (Replacement 1971); PA. STAT. ANN. tit.
43, §§ 211.1-.13 (Purdon 1964), as amended, tit. 43, §§ 211.4, 211.9 (Supp.
1973-74); GEN. LAWS OF R.I. 1956 §§ 28-7-1 to -47, as amended, § 28-7-45 (Supp.
1972); Wis. STAT. ANN. §§ 111.01-.19 (West 1957), as amended, §§ 111.02,
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COLLECTIVE BARGAINING
followed the federal example by excluding farm workers. 2 Furthermore, most of the right-to-work laws in the states that have taken
advantage of section 14(b) of the NLRA are broad enough to include
farm workers should an extension of the Act be approved by the
Congress.25
Very little analysis has been undertaken for the purpose of determining why states have not been very active in the agricultural
labor area. However, one can postulate that the same reasons which
have been given for the lack of federal action are applicable to the
states. Additionally, farm employers at the state level are more
influential than at the federal level. This is because of the greater
amount of rural concentration in many of the states, particularly in
the southern and southwestern parts of the country where migrants
tend to be concentrated, and because of the control which rural
constituencies have held at the state legislative level in those states
(although this has been lessened to an extent by the recent reapportionment decisions) .26 As a result of these factors, states with high
migrant and farm worker populations, such as California,2 Texas,
111.05-.14 (Supp. 1973).
24. Only a very small minority of states do not expressly exclude agricultural
labor from coverage under their state labor relations acts. See HAWAIi REV. STAT.
tit. 21, § 377-1(3) (1968); ANN. LAws OF MASS. ch. 150A § 5A (Supp. 1972) which
expressly provides coverage for farm workers who are employed by employers who
pay wages to four or more agricultural employees; REV. CODE WASH. ANN.
§ 49.36.010 (1962); Wis. STAT. ANN. § 111.02 (3) (West Supp. 1973).
25. 29 U.S.C. § 164(b) (1970). Section 14(b) allows the states to enact laws
prohibiting union shop contracts. Many of these so-called Right-to-Work laws are
broad enough to cover agricultural workers in the event Congress amends the
NLRA to remove the current exclusion. See, e.g., CODE OF ALA. tit. 26, § 375 (1958);
ARK. STAT. ANN. 1947 § 81-202 (1960); GA. CODE ANN. tit. 54, 88 901-09 (1961);
LA. STAT. ANN. §§ 23-881 to -889 (West 1964); REV. STAT. OF NEB. 1943 § 48-217
(1968); NEV. REV. STAT. tit. 53, chs. 613.200-.300 (1967); TEX. Civ. STAT. art. 5154g
§ 1 (Vernon 1971); Wyo.
STAT. §§ 27-239 to -245 (1967).
26. Therefore, in such states as Alabama, Wyoming, and to a lesser extent Texas
and Colorado, rural control is not countered effectively by strong urban interests
such as is the case in Congress where representatives from the Northeastern Corridor also have a measurable influence.
27. An attempt was made in California to enact farm labor legislation in 1967.
Assembly bill 1163, introduced by Assemblyman Veysey, was intended to establish
machinery to deal with agricultural labor disputes. It was prompted by a campaign
speech by the then candidate, now Governor Reagan the year before in which he
stressed the need for some type of machinery to resolve agricultural labor disputes.
Due to lack of support and due to the possible complicated effects adoption of the
proposal might have, the author withdrew the bill in May, 1967. See Rummell,
supra note 9, at 379. Mr. Veysey is now a California congressman and has intro-
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[Vol. 23
and Florida, do not have labor relations acts affecting farm workers.
Wisconsin" and Hawaii 9 are the two states where there has been
a history of collective bargaining and organization laws that have
served to benefit farm workers. The Hawaii Employment Relations
Act has protected farm workers for over 20 years with a great deal
of stability and with very little actual harm to farmers." The Wisconsin Peace Act also protects farm workers, and through it at least
one union has been recognized by the Wisconsin Employment Relations Commission (WERC). 31
Organizing in Wisconsin began in 1966, when an attempt to organize 100 migrant workers in a potato processing plant was initiated. Despite a lack of funds, and the seasonal nature of the employment, a strike ensued. 2 While the employer failed to recognize the
union as the employees' bargaining unit, he suffered economic damage through "primary" labor pressure." In 1967, an active campaign
among the state's cucumber workers was launched, primarily
against Libby, McNeil & Libby, Inc., a vertically integrated vegetable processor that contracted cucumber harvesting from individual
farmers. In August of 1967, the union, Obreros Unidos (United
Workers), was able to petition the WERC for an election. The Commission ordered a hearing within days and scheduled an election for
August 31. The union won the election by more than a 50-1 margin
out of a total work force of more than 400 workers."
This organizing activity precipitated protracted negotiation problems between the union and management. For example, manageduced H.R. 8100, a comprehensive farm labor legislation proposal. See note 128
infra.
28. Wis. STAT. ANN. § 111.02(3) (West Supp. 1973).
29. HAWAII Rav. STAT. tit. 21, § 377-1(3) (1968).
30. A background analysis of this act and the union movement in Hawaii is given
in Hearings on Migratory Labor Legislation Before the Subcomm. on Migratory
Labor of the Senate Comm. on Labor and Public Welfare, 90th Cong., 1st Sess.,
pt. 4, 931-42 (1967).
31. See Erenburg, Obredos Unidos in Wisconsin, 91 MONTHLY LAB. Rv. 17,
20-28 (June 1968).
32. Id. at 21.
33. It is indeed ironic that the major farm labor organizing drive in Wisconsin
met with its major initial success through primary pressure, whereas the major
national farm workers' union, the United Farm Workers Union, has engaged in a
great deal of secondary pressure activity, and has maintained steadfastly that
secondary, rather than primary pressure, is the only route agricultural employees
can take to achieve their economic goals. See generally text accompanying notes
156-59 infra.
34. Erenburg, supra note 31, at 22.
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COLLECTIVE BARGAINING
ment decided that beginning in 1968 it would mechanize its cucumber operation. This decision was based on its own 1967 comparative
cost-benefit study which had not been disclosed to the union. Under
the Employment Peace Act, the union filed an unfair labor practice
charge, stating that management was not bargaining in good faith.3
The WERC found that both the decision to mechanize and the
effects of the decision were mandatory subjects of collective bargaining, and on appeal, the issue was whether mechanization by the
employer was solely a management prerogative or whether management should be required to bargain in good faith regarding such
proposed action.3 6 This work preservation problem is one with which
the NLRB and the federal courts have grappled for some time. 7 The
Wisconsin Supreme Court, in Libby, McNeil & Libby v. Wisconsin
Employment Relations Comm'n,35 reversed and modified the
WERC ruling by holding that the institution of mechanization itself
was not bargainable, but that the effects of the mechanization process must be bargained over in good faith. The "effects" were stated
to include severance pay, vacations, seniority, and pensions as well
as a number of other items. 39 Strong dissents were filed by two of
35. Wis. STAT. ANN. § 111.06(1)(d) (West Supp. 1973) states that it is an unfair
labor practice for an employer "[tio refuse to bargain collectively with the representative of a majority of his employees in any collective bargaining unit. .. ."
This section of the Wisconsin Employment Peace Act is similar to § 8(a) (5) of the
NLRA [29 U.S.C. § 158(a)(5)] which makes it an unfair labor practice for an
employer "to refuse to bargain collectively with the representatives of his employees. ..."
36. Libby, McNeill & Libby v. Wisconsin Employment Relations Comm'n, 48
Wis.2d 272, 278, 179 N.W.2d 805, 808 (1970).
37. The leading case is Fibreboard Paper Prods. Corp. v. NLRB, 130 N.L.R.B.
1558 (1961), modified on rehearing,138 N.L.R.B. 550 (1962), enforced, 322 F.2d 411
(D.C. Cir. 1963), aff'd, 379 U.S. 203 (1964). In this case the Supreme Court decided
that subcontracting out work previously done by the then current employees is a
bargainable issue rather than solely a management prerogative.
38. Libby, McNeill & Libby v. Wisconsin Employment Relations Comm'n, 48
Wis.2d 272, 179 N.W.2d 805 (1970).
39. Id. at 283, 179 N.W.2d at 812. The court distinguished the case on the basis
that ". . . most management decisions which change the direction of the corporate
enterprise, involving a change in capital investment are not bargainable." Id. at
284-86, 179 N.W.2d at 811 (emphasis added). Yet by holding the "effects of
management's decision as bargainable issues, the court recognized vested interests
of the employees in accordance with their union's status as the recognized
bargaining unit under the Wisconsin Employment Peace Act. Wis. STAT. ANN.
§ 111.02 (West Supp. 1972); 48 Wis.2d at 285-86, 179 N.W.2d at 812. Federal
cases cited by the court hold that even management prerogatives do not always
154
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the judges which, unlike the majority, interpreted the controlling
case law to mean that a management decision having a direct
impact upon job security was a mandatory subject of collective
bargaining.' These strong dissents indicate that the decision is
likely to be reconsidered in the future.
The Libby case, while presenting an issue which is commonplace
in the federal area, nevertheless points out the value of constructive
legislation which enables an administrative body and the judicial
process to protect the farm workers' interest. The case, therefore,
more than anything else, illustrates the vacuum created by a lack
of blanket federal legislation, or alternatively, the lack of farm labor
statutes in such states as California, Florida, and Texas where there
is a large farm worker population in existence. In Wisconsin a labormanagement problem can be litigated, while in most states such
matters are left unresolved.
The recent change of heart among farmers and many organizations representing American agriculture on the issue of collective
bargaining 2 has caused some state action that has been vociferously
fought by Caesar Chavez, his union, the United Farm Workers, and
his allies. Unlike Wisconsin and Hawaii, which simply failed to
exclude farm workers from their labor relations acts, Arizona," Kansas, 44 and Idaho" have enacted substantive agricultural labor legislation. These statutes serve to emphasize the growing sense of alarm
with which the agricultural lobby and, to a great extent, the entire
agricultural community view the farm labor movement toward
self-organization." This attitude is immediately set forth in the
absolve the employer of his responsibilities to bargain over the "effects" of such
decisions. See NLRB v. Royal Plating & Polishing Co., 350 F.2d 191 (3d Cir. 1965);
NLRB v. Rapid Bindery, Inc., 293 F.2d 170 (2d Cir. 1961). See also Cooper Thermometer Co. v. NLRB, 376 F.2d 684 (2d Cir. 1967).
40. Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203 (1964).
41. 48 Wis.2d at 288, 290, 179 N.W.2d at 813, 814 (Wilkie & Hansen, JJ.,
dissenting in part). Judge Hansen said that the majority was making an unrealistic
distinction between the replacement of a worker by a person and by a machine-that the former was bargainable and the latter was not. Id. at 289-90, 179
N.W.2d at 814 (Hansen, J., dissenting in part).
42. See text accompanying notes 114-22 infra.
43. Axz. REv. STAT. ANN. §§ 23-1381 to -1395 (Supp. 1972-73) (Agricultural
Employment Relations Act).
44. KAN. STAT. ANN. §§ 44-818 to -830 (Supp. 1972).
45. IDAHO CODE ANN. §§ 22-4101 to -4113 (Supp. 1972) (Idaho Agricultural Labor
Act).
46. See generally Fuller, Farm-LaborRelations, 8 IDAHO L. Rav. 66 (1971).
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COLLECTIVE BARGAINING
Declaration of Policy in the Arizona Agricultural Employment Relations Act (AERA).
It is hereby declared to be the policy of this state that the uninterrupted production,packing, processing,transporting,and marketing
of agriculturalproducts is vital to the public interest. It is also declared to be the policy of this state that agricultural employees shall
be free to organize, to take concerted action, and through representatives of their own choosing enter into collective bargaining contracts
establishing their wages and terms and conditions of employment; or
to refrain from engaging in any or all such activities. It is further
declared that there now exists an inequality of bargainingpower between agricultural employers and labor unions, arising out of the
seasonablecharacterand perishable natureof such agriculturalproducts, the mobility of agriculturallabor, and the fundamental differences between agricultureand industry. While the right to strike is a
basic right of organized labor, such right must take into account the
perishablecharacterand the seasonalnatureof agriculturalproducts
and must be limited and regulated accordingly.It is the intent of the
legislature to provide a means to bargain collectively which is fair and
equitable to agricultural employers, labor organizations and employees; to provide orderly election procedures to resolve questions concerning representation of agricultural employees and to declare that
certain acts are unfair labor practices which are prohibited and subject to control by the police power of this state. The overridingspecial
interest of the state of Arizona with respect to certain secondary
boycott activities originatingin this state, but extending across state
lines and directed at employers in other states, must be recognized,
and such acts must be made unlawful and subject to control by the
police power of this state.47
In many respects, the AERA is modeled after the NLRA. It recognizes employees' rights to self-organization, to bargain collectively,
and to form and join labor organizations, as well as the right to
refrain from these activities." It contains many of the NLRA standard employer unfair labor practice items.49 Furthermore, the
47. ARIZ. REv. STAT. ANN. § 23-1381 (Supp. 1972-73) (emphasis added).
48. Compare ARIZ. REv. STAT. ANN. § 23-1383 (Supp. 1972-73), with 29 U.S.C.
§ 157 (1970) which is the section of the NLRA concerning the broad statutory
rights of employees.
49. These employer unfair labor practices include prohibitions against employer
interference or coercion of employee rights to self-organization and to bargain
collectively with, employer domination of unions or causing to form company unions, and employer discrimination against an employee or potential employee because of union activity. Compare ARIz. Rv. STAT. ANN. § 23-1385 (A) (Supp.
1972-73), with 29 U.S.C. § 158(a) (1970).
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[Vol. 23
AERA establishes a Farm Labor Relations Board with powers very
similar in form and identical in intent as are charged to the National
Labor Relations Board (NLRB) 5
Nevertheless, the AERA contains a variety of provisions considered to be an anathema to organized labor. These include the management prerogatives "[tio manage, control and conduct his operations, including but not limited to, the number of farms and their
locations, methods of carrying on any operation or practices thereon, kinds of crops, time of work, size and make-up of crews, assignment of work, and places of work"'" and "[t]o determine the type
of equipment or machinery to be used, the standards and quality
of work, and the wages, hours, and conditions of work."5 2
Other noteworthy provisions of the AERA include a provision
which: 1) necessitates a secret ballot election before an employer is
required to bargain unless the employer himself consents to recognize that particular bargaining unit;53 2) makes the alteration by a
union of the number of employees to be hired for a particular job
an unfair labor practice;54 3) restricts secondary boycotts and consumer picketing; 5 4) allows employers not to provide information,
time, and facilities to labor organizations to communicate with their
members;56 and 5) requires a secret ballot election in favor of a strike
50. Compare ARIZ. REv. STAT. ANN. § 23-1386 (Supp. 1972-73), with 29 U.S.C.
§§ 153, 161 which outline the nature of the NLRB and its investigative powers.
51. ARIZ. REV. STAT. ANN.
§ 23-1384(A)(1) (Supp. 1972-73).
52. Id.
53. Id. at § 23-1384(A)(3). The specific intent of this provision is to prohibit
recognition by the Farm Labor Relations Board of a union on the basis of card
authorizations where more than a majority of the workers of the designated bargaining unit sign such card petitions in support of the union. This procedure has
been widely criticized as an unreliable indicator of union support because of the
possibility that an employee may think he is signing only a petition for an election
or perhaps something not even related to union activity. The Supreme Court has
upheld the utilization of this procedure upon a finding that a fair election could
not be held. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The NLRB's interpretation of this decision has been widely criticized. See, e.g., Getman & Goldberg,
The Myth of Labor Board Expertise, 39 U. CHI. L. REv. 681 (1972); Progrebin,
NLRB BargainingOrdersSince Gissel: Wanderingfrom a Landmark, 46 ST. JOHN'S
L. REV. 193, 201-07 (1971).
54. ARIZ. REV. STAT. ANN. § 23-1385(B)(5)(b) (Supp. 1972-73).
55. Compare ARIZ. REv. STAT. ANN. §§ 23-1385(B)(6)-(9) (Supp. 1972-73),
with 29 U.S.C. §§ 158(b)(4), (7) (1970).
56. ARIZ. REV. STAT. ANN. § 23-1385(C) (Supp. 1972-73). This provision is intended to negate federal court decisions that have sought to balance the property
rights of the employer and the rights of the employees to organize as guaranteed
19731
COLLECTIVE BARGAINING
before one can take place. 57
For the most part, there do not exist contrary statutory provisions
in the NLRA. Yet, in interpreting the NLRA, the NLRB and the
federal courts have either interpreted the Act to prohibit these provisions found in the AERA, or simply not to require them."
Opposition to such interpretations has not disappeared, and in
many respects has become longstanding criticism. 9 Critics have
basically contended that there today exists a lack of balance in
industrial labor-management relations which favors organized
labor.'" From this point of view alone, statutes such as the AERA
seem quite reasonable. On the other hand, Caesar Chavez and others have contended that the farm labor movement is so inferior at
this time to its industrial counterparts from an organizational and
political standpoint, that it should not be made hostage to such
restrictive legislation but should be allowed to operate for a period
of time under the 1935-47 NLRA scheme.8 '
by federal labor law and policy. See generally NLRB v. United Steelworkers of
America & Nutone, Inc., 357 U.S. 357 (1958); NLRB v. Babcock & Wilcox Co., 351
U.S. 105 (1956); Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); NLRB v.
Tamiment, Inc., 451 F.2d 794 (3d Cir. 1971); National Steel Corp. v. NLRB, 415
F.2d 1231 (6th Cir. 1969).
57. Asuz. REv. STAT. ANN. § 23-1385(B)(13) (Supp. 1972-73).
58. See generally notes 48-57 supra.
59. See Hearings on S. 3671 Before the Subcomm. on Separationof Powers of
the Senate Comm. on the Judiciary, 91st Cong., 2d Sess. (1970) [hereinafter cited
as Hearingson S. 3671].
60. See id. at 39-40 (opening statement of Senator Ervin); id. at 41-47 (testimony of Senator Tower); id. at 52-82 (testimony of A. Obadal, G. Smetana, and
L. Cohen); id. at 83-86 (testimony of G. Ostrowski); id. at 87-97 (testimony of
G. Reilly). See also Petro, Expertise, the NLRB and the Constitution: Things
Abused and Things Forgotten, 14 WAYNE STATE U. L. REV. 1146 (1968).
61. Hearings on S. 8 & S. 1808 Before the Subcomm. on Labor of the Senate
Comm. on Labor and Public Welfare, 91st Cong., 1st Sess. 12, 22-23 (1969)
[hereinafter cited as Hearings on S. 8 & S. 1808]. See also unpublished Hearings
on AgriculturalLabor-ManagementLegislationBefore the Subcomm. on Agricultural Labor of the House Comm. on Education and Labor (May 21, 1973) (testimony of D. Huerta) [hereinafter cited as unpublished Hearings on Agricultural
Labor-ManagementLegislation]. Naturally, the argument made by the UFW is
not a novel one. Perhaps the most convincing aspect of the argument is that it is
the same one employed by the proponents of the Wagner Act in the first half of
the 1930's. At that time labor-management relations was anything but a system
based upon equal bargaining power. This necessitated provisions in federal law
encouraging unionism. [49 Stat. 449] [codified in scattered sections of 29
U.S.C.]. See Hearings To Create a National Labor Relations Board Before the
Senate Comm. on Educationand Labor, 73d Cong., 2d Sess. 37-38 (1934) (opening statement of Senator Wagner).
158
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 23
The Idaho Agricultural Labor Act (IALA) is similar in substance
and tone to the AERA. Like the AERA, it permits an employee to
opt not to join a union despite the existence of a labor contract;" it
contains restrictive provisions on secondary boycotting, picketing,
and hot cargo agreements; 3 and it requires a secret ballot election
before a union can be recognized as the exclusive bargaining representative. 4 Perhaps in recognition of the broad interpretations
which have been given to the NLRA's "other conditions of employment," 5 section 5 of the IALA states that "[a]n employer has the
right to manage his operations, to hire employees from any lawful
source, to decide what crops or other products to produce, to determine methods, and equipment or machinery to be used, to use any
lawful pesticides, herbicides, or fungicides, to contractwork out, for
himself or members of his family or his supervisors to work on his
own operations, or to discontinue or sell his operations."6"
While the AERA has no similar provision, the IALA states quite
clearly that any statement by an employer or labor union "relating
to existing or proposed terms, tenure or conditions of employment
62. IDAHO CODE ANN. tit. 22, § 4106(3) (Supp. 1972).
63. Id. at tit. 22, §§ 22-4107(4), (6), (7), (8)(c).
64. Id. at § 22-4109(4).
65. 29 U.S.C. § 159(a) (1970). This section which relates back to the requirement of an employer to bargain collectively subject to unfair labor practice charges
[29 U.S.C. § 158(a)(5) (1970)] has been broadly interpreted. See Fibreboard
Paper Prods. Corp. v. NLRB, 379 U.S. 203 (1964); notes 37 & 39 supra. See also
NLRB v. Borg Warner Corp., 356 U.S. 342 (1958); NLRB v. Niederman, 334 F.2d
601, 604 (2d Cir. 1964); Town & Country Mfg. Co., 136 N.L.R.B. 1022 (1962),
enforced, 316 F.2d 846 (5th Cir. 1963). However, in a recent decision, the Supreme
Court ruled that the retirement rights of retired workers not currently part of the
bargaining unit was not a mandatory subject of collective bargaining. Chemical &
Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 180 (1971). See Antoine, Judicial Caution and the Supreme Court's Labor Decisions, October Term
1971, 6 U. MICH. J. OF L. REFORM 269, who argues that appointments by President
Nixon to both the NLRB and the Supreme Court have already had a measurable
effect on federal labor law.
66. IDAHO CODE ANN. tit. 22, § 4105 (Supp. 1972) (emphasis added). The intent
of this provision is to limit the scope of mandatory subjects of collective bargaining.
The most novel provision is the one that makes the use of pesticides, herbicides or
fungicides strictly a management matter. Note that the Arizona statute states that
provisions relating to worker safety are bargainable issues. ARiz. REV. STAT. ANN.
§ 23-1384(A)(3). (Supp. 1972-73). The United Farm Workers has bitterly condemned the use of pesticides by growers. See Hearings on S.8 & S.1808, supra
note 61, at 19-22 (testimony of J. Cohen). See also unpublished Hearings on
Agricultural Labor-Management Legislation, supra note 61 (testimony of D.
Huerta).
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COLLECTIVE BARGAINING
with the employer shall not be considered to constitute a threat or
reprisal or force or promise of benefit."67 Such a provision is intended to safeguard what employers believe to be free speech rights
that have been restricted by the NLRA. 8
In most respects the Kansas agricultural labor statute is very
similar to the acts adopted in Arizona and Idaho. Its declaration of
policy recognizes the same issues as does the comparable section in
the AERA. 0 Like the aforementioned acts, the Kansas statute contains restrictive language regarding secondary boycotting. 0 Under
the statute, it is a union unfair labor practice to "[e]ngage in a
strike during periods of marketing of livestock, or during a critical
period of production or harvesting of crops, or during mediation,
fact-finding or arbitration proceedings ..
."7
Thus, while the Kansas act does not specify management prerogatives to the extent defined in the IALA, it may be the most severe
of the three statutes from the point of view of the farm worker since
it restricts his basic weapon-the strike. In addition to the strike
ban at harvest time, the Kansas act provides for a comprehensive
system of government involvement in a labor dispute at all times
-culminating in compulsory arbitration if the dispute is not settled
within 40 days. 2
67. IDAHO CODE ANN. tit. 22, § 4108(2) (Supp. 1972). See also ARLz. RIv. STAT.
ANN. § 23-1385 (Supp. 1972-73). Section 8(c) of the NLRA states:
The expressing of any views, argument, or opinion, or the dissemination
thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of
this subchapter, if such expression contains no threat of reprisal or force or
promise of benefit.
29 U.S.C. § 158(c) (1970) (emphasis added).
68. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), was also concerned with
the extent to which an employer could communicate his views to his employees
about the presence of a union without violating § 8(a) (1) of the NLRA [29 U.S.C.
§ 158(a)(1) (1970)] and § 8(c) of the NLRA [29 U.S.C. § 158(c) (1970)]. 395 U.S.
at 616-20, rehearingdenied, 396 U.S. 869 (1969). See note 67 supra, quoting § 8(c)
of the NLRA. See also Browne & Sachs, The Suppression of Employer Free
Speech-A New Ban on "Conscious Overstatements" and a Caveat Against
"Brinkmanship", 15 VML. L. REv. 588 (1970).
69. KAN. STAT. ANN. § 44-818 (Supp. 1972).
70. Id. at § 44-828(c)(8).
71. Id. at § 44-828(c)(7).
72. Id. at § 44-826(d). Normally employers, like employees, oppose compulsory
arbitration since it is felt that it removes from their control certain types of action
that they are usually free to exercise. No doubt, however, this employer opposition
is greatly diminished in Kansas due to the fact that a strike or labor dispute at
harvest time is made an unfair labor practice.
160
THE AMERICAN UNIVERSITY LAW REWEW
[Vol. 23
These three statutes are of recent vintage and no doubt have been
adopted, in part, because of those same factors that have led agricultural employers to question their previous total opposition to
federal collective bargaining. Therefore, as the union movement
continues to grow, there is a strong probability that other states will
consider legislation similar to these statutes, particularly with respect to unilateral management prerogatives, strike bans, and secondary boycotts.
III.
WHO ARE THE FARM WORKERS?
While the farm worker73 is now receiving government assistance,
the same basic factors exist today which, years ago, tended to distinguish him from his industrial counterpart. Paul S. Taylor, Professor
of Economics at the University of California, described the situation
in the following manner:
73. The term "farm worker" is somewhat broader than the term "migrant
worker;" therefore, they are not used interchangeably in this comment. Farm labor
legislation providing collective bargaining rights would have an enormous effect on
migrant workers which have been estimated to number approximately 276,000. Of
these 276,000 workers and their families, the vast majority are Spanish-speaking
Americans. See SUBCOMM. ON MIGRATORY LABOR, SENATE COMM. ON LABOR AND
PUBLIC WELFARE, THE MIGRATORY FARM LABOR PROBLEM IN THE UNITED STATES, S.
REP. No. 83, 91st Cong., Ist Sess. 3-5 (1969). In speaking of migrant workers,
however, one must take note of the seeming disparity found in statistical material.
While the Senate Committee on Labor and Public Welfare stated that there were
276,000 workers in 1969, the Department of Agriculture put the figure at 172,000.
The extent of the effect of such legislation on the more than 2.7 million nonmigratory farm workers would depend on the jurisdictional standard that the designated administrative agency would apply. Migrants are given more attention because they are concentrated in the larger agricultural operations such as the fruit
and vegetable farms, while the vast majority of non-migratory farm workers can
be found on small farms and may not even be salaried due to familial relations with
the owner.
Perhaps the most noteworthy change affecting farm workers was the failure of
Congress to extend the Bracero program in 1963. Enacted in 1951, this program
allowed alien Mexican workers to legally cross the border and work in the United
States. The Agricultural Workers Importation Act, ch. 223, §§ 501-08, 65 Stat.
119 (1951). Provisions to safeguard the employment opportunities of domestic labor
proved to be ineffective. While the end of this program certainly has helped the
economic standing of the farm worker, mechanization has had an adverse effect by
reducing employment opportunities. See Kovarsky, supra note 9, at 312-22; Morris, supra note 9, at 1940-44. For a discussion of the Bracero program, see UNITED
STATES BUREAU OF EMPLOYMENT SECURITY, DEP'T OF LABOR, FARM LABOR SERVICE,
INFORMATION CONCERNING ENTRY OF MEXICAN AGRICULTURE WORKERS IN THE UNITED
STATES (BES No. F-146, 1959).
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COLLECTIVE BARGAINING
Century old conditions survive to this day: brief periods of employment with long seasons of unemployment; separation of the agricultural labor from direct-and to the laborers, beneficial-competition
with the urban-industrial labor market; substandard housing; restless migration, with absence of attachment to any one employing unit
or even voting residence; dependence upon public welfare to tide over
the seasons of unemployment; and exclusion from many of the social
programs that have been developed to protect laborers in other industries, although this exclusion appears to be gradually crumbling. 4
Before evaluating the difficulties of the farm worker in attempting to unionize, it is important to focus upon who the farm worker
actually is. In May, 1971, 635,000 of the more than 900,000 farms
that used one or more workers employed no hired workers. Approximately five percent of the farms that did hire workers had gross sales
above 100,000 dollars, while nearly 50 percent had gross sales below
10,000 dollars. Yet, the five percent with gross sales above 10,000
dollars (approximately 45,000 farms) employed nearly 41 percent of
the entire force of hired farm workers.75
The most glaring conclusion that can be made from these statistics is that most farms in this country could easily be exempt from
collective bargaining coverage. In fact, one can estimate that if the
NLRB were to apply its traditional 50,000 dollar gross sales test in
order to determine jurisdiction at the non-retail level, 8 nearly 50
percent of all hired farm workers would be covered while only approximately 15 percent of all farms which in 1970 used one or more
7
workers would be covered.
Further perusal of statistics will lead one to the conclusion that
collective bargaining is only feasible in two or three types of farming
-vegetable, fruit and nut, and possibly tobacco." These three
types of farm crops are raised by only 18 percent of the farms in the
74. Taylor, CaliforniaFarm Labor: A Review, 42 AGRICULTURAL HISTORY 49, 52
(1970). Excellent histories have been written about the farm worker in the United
States. See, e.g., C. McWILIAMs, FACTORIES INTHE FIELD (1944); UNrrED STATES
BUREAU OF LABOR STATISTICS,
AGRICULTURE (Bull.
CAN AGRICULTURE].
75.
DEP'T OF LABOR, LABOR UNIONISM IN AMERICAN
No. 836, 1945)
[hereinafter cited as LABOR UNIONISM IN AMERI-
EMPLOYMENT STANDARDS ADMINISTRATION,
HIRED FARM WORKERS
WORKERS].
A-12, -14 (1972)
UNITED STATES DEP'T OF LABOR,
[hereinafter cited as HIRED FARM
76. This jurisdictional standard was adopted in 1958. Siemons Mailing Serv.,
122 N.L.R.B. 81 (1958).
77. HIRED FARM WORKERS, supra note 75, at Table 1.
78. Id.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 23
United States, but in peak seasons employ approximately 40 percent of the hired work force."0 These farms, as a result of their size,
are most suited to organization, for it is less difficult on a large farm
to designate an appropriate bargaining unit for purposes of union
representation." Yet, the seasonal nature of these particular farming operations, which attracts migrant workers and thereby causes
an impersonal and casual labor-management relationship, works
against effective union organization."1 Additionally, because of the
seasonal aspect of the work, heads of households and their families
are engaged in non-farm work during the year. Thus, one characteristic shared by many farm workers is a lack of constant employment
and residence in one particular geographical area for any length of
time.82 If nothing else, this lessens the opportunities for collective
bargaining.
While large farming operations are more conducive to collective
bargaining, the reduction in the number of farms has to an extent
forced some small farmers and tenant sharecroppers to stay on as
hired farm workers.83 This has resulted in a further increase in the
labor supply which, while significantly reduced by the elimination
of the Bracero program,8 4 continues as a major economic factor
favoring the large farmer. Consolidation of small farms into
mechanized large scale agribusiness ventures85 has naturally
79. Id. See figures for July 1, 1971.
80. For a discussion of the economics of this type of farming, particularly with
respect to Mexico, see Kovarsky, Increased Labor Costs And The American
Farmer-A Need for Remedial Legislation?, 12 ST. Louis U. L.J. 564, 573-85
(1968).
81. Levine, The Migratory Worker in the Farm Economy, 12 LAB. L.J. 622, 624
(1961).
82. For the most definitive yearly statistical study on farm employment, see
UNITED STATES DEP'T OF AGRICULTURE, ECONOMIC RESEARCH SERVIcE, THE HIRED
FARMWORKING FORCE OF 1971 (No. 222, 1972) [hereinafter cited as FARMWORKING
FORCE]. According to this report, 47 percent of migratory workers did some kind
of non-farm work during 1971. The average amount per man of non-farm work was
96 days a year. Non-farm work was performed by 36'percent of non-migratory
workers, working on the average 94 days in the year. Id. at 16.
83. For instance, from 1954 to 1967, the number of farms in the United States
declined from 4.8 million to 3.14 million. Yet, the amount of farm land has not so
proportionally decreased. UNITED STATES DEP'T OF AGRICULTURE, AGRICULTURE
STATISTICS,
430, 480 (1968).
84. See note 73 supra.
85. In California, for example, 6.1 percent of the farmers own 78.6 percent of the
farm land. According to one author, California agriculture has become a creature
of the banking industry, particularly the Bank of America. Krebs, Agribusiness in
California, COMMONWEAL, Oct. 9, 1970, at 45.
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COLLECTIVE BARGAINING
speeded the process of mechanization and automation, which,
again, further reduces the demand for labor and increases the problems besetting any type of union attempt to organize. With the
supply-demand factor being so much to the advantage of the large
farming interests, organizational activity becomes more difficult
even though it is in this type of environment that collective bargaining is most desired, at least from the point of view of the worker. 6
The Department of Labor's 1945 study on farm labor, the most
complete study and analysis of the early farm labor union movement, began by stating that "[a] lengthy study of labor unionism
in American agriculture might appear to be 'much ado about nothing'." 7 Yet as the study clearly describes, a great deal of union
activity had occured since the late 1880's. 81 Most studies seem to
neglect these early union movements, however, probably because of
their basic failure to achieve the objective of lasting union organization.8 1
86. See
FARMWORKING FORCE,
supra note 82, at 5, 15-17, 21-22 (1972); Com-
ment, Unionization of the AgriculturalLabor Force: An Inquiry of Job Property
Rights, 44 S. CAL. L. REv. 181, 185 (1971).
87. LABOR UNIONISM IN AMERICAN AGRICULTURE, supra note 74, at 1.
88. Id.
89. The International Workers of the World (IWW) was the first organization to
attempt a national union drive. The IWW professed to a socialist platform of
agrarian reform and won sizeable support from the migrants in the field. The union
became crippled due to government pressure about the time of the United States'
entry into World War I and because of increased reliance on mechanization in the
farm belt where most of its support was located. Id. at 11-12. Not until the
Depression did the drive for union organization regain impetus. The Depression
caused a further reduction in farm worker wages and trouble broke out in the
midwest where wages were on a high enough scale that they could actually be
lowered. Activity was further precipitated by former industrial employees, many
of whom had union experience, who were forced to seek farm employment. The
spirit of the 1WW was rekindled by the Trade Union Unity League (TUUL) which
had United States Communist Party affiliation and which had organized at the
agribusiness level by trying to represent the migrant worker. The League was
suppressed in California, however, when the growers were able to convince public
officials that the left-wing attitudes of the union had created an unhealthy situation. See Kovarsky, supra note 9, at 353. Economic hardships forced a variety of
factions to work together under the umbrella of the American Federation of Labor
international union. Together with the Cannery and Agricultural Workers Industrial Union, which was an outgrowth of the TUUL, the AFL managed a record
275 labor disputes in 28 states placing 177,788 workers out on strike during the
1930's. LABOR UNIONISM IN AMERICAN AGRICULTURE, supra note 74, at 17.
164
IV.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 23
RECENT ORGANIZATIONAL ATTEMPTS AND THE JURISDICTIONAL
DISPUTE
Except for a short-lived effort to organize California farm workers,
development during the last 25 years is significant solely in the fact
that it has slowly nurtured the growth of two distinct union efforts
in the agriculture field-that of the International Brotherhood of
Teamsters and that of the United Farm Workers Organizing Committee (UFWOC), now referred to as the United Farm Workers. The
Teamsters had steadily been increasing their representation among
food processors." They recently proclaimed themselves to be the
best suited union to organize farm workers in a cohesive manner,
particularly in California. This is partially due to what they have
perceived as a natural extension of their successes in food processing
plants to the agricultural workers in the field, and partially due to
their overall strength as a recognized international union organization." While interest in agricultural representation on the part of
the Teamsters had been building throughout the 1960's, major inroads did not take place until the Western Conference of Teamsters
signed labor contract agreements with 27 Salinas Valley, California,
growers in 1970.92
In 1966, the Agriculture Workers Organizing Committee
(AWOC), which was affiliated with the AFL-CIO, merged with the
primarily community service organization, the National Farm
Workers Association, headed by Caesar Chavez. 3 This new union
was called the United Farm Workers Organizing Committee
(UFWOC) and immediately became affiliated with the AFL-CIO."
In its initial years, the union's most active organizing took place
among the grape workers. A secondary boycott was utilized, and
90. Teamsters organizing among farm workers and in food processing plants can
be traced back to the mid-1930's. Ironically, their entry into the field during that
era also precipitated a number of jurisdictional disputes with other unions. Id. at
214-16.
91. The Teamsters have made a point to emphasize that they were in the fields
organizing farm workers long before UFW became active. Specifically, they point
to a contract signed between them and the Grower-Shipper Vegetable Association
of California in the early 1950's to represent driver-stitcher-loaders. See Teamsters
Union, Press Release (Jan. 17, 1973) (announcing new contracts with western state
growers) [hereinafter cited as Press Release].
92. See Englund v. Chavez, 8 Cal.3d 572, 577-79, 504 P.2d 457, 460-61, 105
Cal. Rptr. 521, 524-25 (1972).
93. For a case study of the AWOC see Comment, Agricultural Labor Relations-The Other Farm Problem, 14 STAN. L. REv. 120, 137-40 (1961).
94. See note 22 supra.
19731
COLLECTIVE BARGAINING
four years after the boycott had begun, three year contracts with a
number of growers were signed."
While the Teamsters and Chavez' union until recently have been
able to maintain a semblance of peace in the grape industry, primarily due to the position delegated to the AFL-CIO's George
Meany as a neutral intervenor to enforce a "no-raid" agreement, the
conflict climaxed in 1970 in the lettuce industry. When the "noraid" agreement expired, the Teamsters proceeded to sign the
before-mentioned labor contracts with the growers in Salinas Valley. Signed in July, 1970, the contracts provided for an exclusive five
year union shop agreement with each of the 27 growers. 6 The UFW
protested that the contracts represented an infringement on their
jurisdiction, and soon thereafter helped to precipitate a recognition
strike among some of the workers employed by the same growers in
Salinas Valley. 7
The growers countered on August 25, 1970, by filing an action in
Santa Barbara Superior Court to enjoin any UFW strike activities
under the California Jurisdictional Strike Act.1 The lower court
denied the injunction and the California Supreme Court affirmed. 9
In essence, the supreme court reasoned that the petitioners were not
among the group that was intended to be protected against a jurisdictional dispute between two unions, and held that the contracts
defeated the purpose of the Act. ' As a result of the lack of a clearly
formulated labor law policy, the court realized that it could not
invalidate the contracts signed between the Teamsters and the Salinas Valley growers; rather, it determined that it would not recognize
the petitioner's claim for relief under the Jurisdictional Strike Act.
The intent was to protect the employer who really had no say in the
dispute, and who was only interested in safeguarding his own business. The growers in this case, while not "dominating or controlling"
the union, were found by the court to have favored the Teamsters
95. For bacxground on the grape boycott, see J. DUNNE, TnrE STORY OF THE GRAPE
(1967); Cohen, La Huelga! Delano and After, 91 MONTHLY LAB. REv. 13
(June 1968); Du Fresne & McDonnell, The Migrant Labor Camps: Enclaves of
Isolation in our Midst, 40 FORDHAM L. REV. 279, 298-300 (1971); Taylor, Why
Chavez Spurns the Labor Act, THE NATION, April 12, 1971, at 454-56.
96. See Englund v. Chavez, 8 Cal.3d 572, 579, 504 P.2d 457, 462, 105 Cal. Rptr.
521, 525 (1972).
97. Id. at 588, 504 P.2d at 462, 105 Cal. Rptr. at 526.
98. CAL. LABOR CODE § 1115-22 (West 1971). See also Aaron, The California
JurisdictionalStrike Act, 27 S. CAL. L. REv. 237 (1954).
99. Englund v. Chavez, 8 Cal.3d 572, 504 P.2d 457, 105 Cal. Rptr. 521 (1972).
100. Id. at 592, 504 P.2d at 474, 105 Cal. Rptr. at 535.
STRIKE
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166
[Vol. 23
without taking into consideration the views or desires of the workers
in the field.' The court held that the grower-employers violated the
"interferes with" provision of the Act by granting exclusive bargaining to a union which they knew on a collective basis did not command majority support among the workers. 12 Such action could
enable an employer, fearful of one union, to seek an injunction
under the Jurisdictional Strike Act-a situation the California
courts would not allow.
The decision was a proper one for the court to render. Documentation evidenced the fact that the employees were not notified of the
pending collective bargaining and had no opportunity for input into
the provisions of the contracts or their ratifications. This decision
obviously represented a major defeat for the organizational drive of
the Teamsters, as it allowed the strike by UFW members and its
sympathizers to continue undaunted. The strike spread to a fullfledged lettuce boycott on a nationwide basis.
Confronted with a boycott that has gained widespread publicity,103 the Teamsters countered by stepping up their organizational
campaign. On January 17, 1973, they announced the signing of contracts with a large group of western United States vegetable and
fruit growers.' 4 The contract represented an attempt by the Teamsters to set a basis for a comprehensive labor-management takeover
in agriculture. Yet George Meany of the AFL-CIO has labeled this
most recent Teamsters contract as a "back door contract" and from
a ".
.
. trade union point of view absolutely disgraceful."'0 5
In the months following the signing of these contracts, the dispute
between the Teamsters and the UFW deepened. On April 30, the
first group of UFW grape contracts expired in Coachella Valley,
California. Immediately thereafter, 30 growers with expired labor
contracts signed agreements with the Teamsters. The UFW countered with a strike and mass picketing.' Contracts with 17 more
grape growers in the nearby San Joaquin Valley were shortly thereafter signed by the Teamsters. By early May the Teamsters had
101. Id. at 588, 504 P.2d at 468, 105 Cal. Rptr. at 532.
102. Id. at 577-80, 504 P.2d at 460-63, 105 Cal. Rptr. at 524-26.
103. The peak of the lettuce boycott may have been reached during the Democratic National Convention in the summer of 1972 when hundreds of delegates
endorsed the boycott before a national television audience.
104. Press Release, supra note 91.
105. Excerpts from the verbatim transcript of a press conference at the AFL-CIO
Executive Council meeting in Miami, Florida, February 20, 1973.
106. Wash. Post, July 22, 1973, § A, at 3, col. 1.
1973]
COLLECTIVE BARGAINING
signed contracts representing about 30 percent of the grape crop
that had previously been under contract with the UFW. °7
Naturally, these events caused an already emotional dispute
within organized labor to worsen.0 8 In an extraordinary move, the
Executive Council of the AFL-CIO voted unanimously to assess
each of its affiliates an extra four percent over a three month period
for a special strike fund of 1.6 million dollars for the UFW.19 Strikes
and mass picketing, followed by arrests and violence, took place up
and down the California grape vineyard valleys as Chavez strove to
have the UFW become a real labor union and not just a social
movement."10
In an effort to avert more violence and perhaps some embarrassment to the labor movement, President Meany moved quickly to
achieve a settlement of the jurisdictional dispute. Within a span of
less than 40 days, the Teamsters repudiated 30 contracts just recently signed with a group of Delano, California grape growers,"'
and then agreed to a settlement of the overall dispute. The settlement agreement is intended to give the UFW territorial jurisdiction
over all farm workers in the field, and leave the canners, and other
2
similarly situated workers to the Teamsters."
If this accord becomes a reality, some might feel that federal
legislation is no longer necessary. It should be understood, however,
that the agreement has no binding effect under the law, and can
thus be broken by either side at any time. Furthermore, even should
107. AFL-CIO News, May 5, 1973, at 3, col. 1.
108. For instance, President Meany branded the Teamsters as "union busting"
and that "(tlhe most reprehensible part of the Teamsters' deal is its revival of
the most vicious employer hiring practice-the use of labor contractors. This revival of this hated device must not be allowed." Id. at 1, col. 1.
109. Id. at 1, col. 2.
110. See generally Aaron, Farm Union Fights for Life Under a Hot Desert Sun,
Wash. Post, June 24, 1973, § A, at 16, col. 1; Wash. Post, July 25, 1973, § A, at 3,
col. 1; Wash. Post, April 16, 1973, § A, at 3, col. 1, for recent developments in the
jurisdictional dispute.
111. See Frederickson, Chavez Says Teamsters Move Opens Door to Talks on
Dispute, Wash. Post, Aug. 24, 1973, § A, at 2, col. 1. The repudiation of these
contracts, however, does not necessarily mean that the UFW will sign similar
agreements with the growers, who may feel that the Teamster contracts are binding, at least insofar as they are concerned. The current loss of these contracts,
which the UFW once held, represents a decline of 9,000 UFW members to approximately 6,500 card-carrying members. At its height the union could claim 40,000
dues-paying members. See N.Y. Times, July 29, 1973, at 11, col. 1.
112. Bernstein & Del Olmo, Teamsters, Chavez Agree to End Feud, Wash. Post,
Sept. 28, 1973, § A, at 1, col. 1.
THE AMERICAN UNIVERSITY LAW REVIEW
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the agreement be effectuated, the UFW must still sign or renew
contracts with the growers in order for it to become the viable force
that it maintains it already is. More importantly, the union agreement has the effect of denying to the individual farm worker a role
in the decision-making process.
While both the Teamsters and the UFW have professed to represent the worker in the field, it is clear that the lack of public protection of collective bargaining rights is the major reason that the
workers themselves have thus far been unable to make a free and
democratic choice on the desirability of union representation, and
if so desired, on the nature and scope of that representation. An
agreement principally drafted under the direction of the Presidents
of the AFL-CIO and the International Brotherhood of Teamsters
will neither guarantee long-run stability in the agricultural-labor
sector, nor the right of the individual worker to control his own
3
destiny."
V.
A.
OPPORTUNITY FOR LEGISLATION
Management and FederalLegislation
It has been a traditional position for farmers and their respective
national organizations to oppose federal legislation," 4 and for organized labor to support such legislation in one form or another. In fact,
commentators reviewing the need for federal legislation have made
extensive note of total employer opposition to any legislation)"
Many farm organizations have retained their pessimistic views
towards organized labor in general, and to agricultural inclusion
113. The objectives of the NLRA or any other statute guaranteeing collective
bargaining rights should be primarily threefold: 1) the protection of employers,
employees, and unions from unfair labor practices; 2) the investigation of union
organizational campaigns so as to insure that there is a sufficient interest in representation and that any election held is carried on in a democratic manner; 3) the
recognition of a public interest by implementing a labor law policy that is consistent but flexible enough to take into consideration changing conditions.
114. Such groups have included the American Farm Bureau Federation, the
United Fresh Fruit & Vegetable Association, and such state organizations as the
Georgia Peach Council. The exception to what was at one time solid opposition to
federal agricultural collective bargaining has been the National Farmers Union
(NFU) and the National Farmers Organization (NFO). See Hearingson S. 2003
Before the Subcomm. on Agricultural Research and General Legislation of the
Senate Comm. on Agriculture, 91st Cong., 2d Sess. 121, 232 (1970); Comment, The
Farm Worker: His Need for Legislation, 22 U. ME. L. Rnv. 213, 219 (1970).
115. Morris, supra note 9, at 1970-77; Comment, supra note 21, at 760-61, 763;
Comment, supra note 114, at 222.
19731
COLLECTIVE BARGAINING
under the NLRA. Yet, these same organizations have now changed
their position significantly-although they continue to strongly oppose any legislation that would place agriculture within the jurisdiction of the NLRA.116 In fact, the change in position by those organizations representing American agriculture came with very little
warning. Matt Triggs, legislative representative of the American
Farm Bureau Federation, made the following statement in opposition to collective bargaining in agriculture during congressional
hearings in 1965:
Conditions in agriculture are so different, as compared with the
conditions in industry, that no union should be empowered to act as
the exclusive bargaining agent of the workers employed by farmers.
The unique feature of the employment relationship in agriculture
is the vulnerability of the farmer to any work stoppage on his farm.
While most industrial or commercial concerns may suffer a reduction in profits as a result of a strike, it is rare for them to-be disastrously affected. For the most part they can close down their operation and sit out the strike with nominal losses.
Compare this with agriculture. It is not possible to close down a
farm. Operations must continue in tune with the season. Crops must
be harvested when ready. Even a delay of a few days may substantially reduce the value of a crop.
If a strike should occur when a perishable crop such as fruits or
vegetables is ready to harvest, and of course this is the time a strike
would be called, this would entail much more than a reduction in the
farmer's profits for the year.
More likely it would involve, one, a loss of income for the year and,
two, a loss of money invested in bringing the crop to harvest stage
which may run, for many fruits and vegetables, $300 or $400 an acre
or more. A loss of this size would bankrupt many farmers.
Thus the farmer is in no position to stand a work stoppage. Come
what may he must get his crops harvested. He must therefore accede
to almost any demand upon him at harvest time which is necessary
to prevent a work stoppage no matter how unreasonable or arbitrary
the demand may be.
Collective bargainingwould not equalize the bargainingpower of
farmers and workers; it would make farmers subservient to labor
union leaders wherever such leaders could establish the practice of
collective bargaining.
Because of this extreme vulnerability of farmers we reaffirm our
116. See, e.g., Hearings on S. 8 & S. 1808, supra note 61, at 169 (testimony of
G. Wedgworth).
170
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position that7 collective bargainingshould not be applicableto farmer
employers.11
Then, in 1972, before the House Subcommittee on Agricultural
Labor, the same Matt Triggs made the following statement:
We support the right of farm workers to join a union and to determine by majority vote, by secret ballot whether or not they wish to
designate a bargaining representative and if so, the representative to
be designated. No better means of determining majority choice has
been devised."'
The United Fresh Fruit and Vegetable Association has closely
aligned itself with the Farm Bureau, and first supported federal
legislation when its representative testified before Congress in 1970
in support of the Consumer Agricultural Food Protection Act originally introduced by Senator Murphy of California."'
More recently, these farm organizations have testified in favor
of legislation introduced by Congressmen Leggett and Quie.'2 " Testifying in support of this proposal, Mr. Triggs made note of nine
factors that the American Farm Bureau Federation felt must be
contained in a federal agricultural labor law:
1. Secret balloting by workers.
2. Prohibition of secondary boycotts.
3. Administration by an independent farm labor relations board.
4. A requirement that a union file notice of intention to strike and
an option to farmers in such case to defer this strike by calling for
arbitration of the dispute.
5. Exemption of small farms.
6. Preservation of state laws relating to compulsory unionism and
the right of states to enact legislation in this area.
7. Authorization for farmers to obtain damages for unlawful strikes
or boycotts.
8. Provision that the election and bargaining unit shall be the employees of a farmer or particular categories of employees.
117. Hearingson S. 1866 Before the Subcomm. on MigratoryLaborof the Senate
Comm. on Labor and Public Welfare, 89th Cong., 1st Sess. 95-96 (1965) (emphasis
added).
118. Hearings on Agricultural Labor-ManagementRelations Before the Subcomm. on AgriculturalLabor of the House Comm. on Education and Labor, 92d
Cong., 2d Sess. 81 (1972) [hereinafter cited as Hearings on Agricultural LaborManagement Relations].
119. Hearingson S. 2003, supra note 114, at 101-04.
120. H.R. 4011, 93d Cong., 1st Sess. (1973). See text accompanying notes
139-47 supra.
19731
COLLECTIVE BARGAINING
9. Specific prohibition of featherbedding or any practice requiring
the continued employment of unneeded workers.'21
The National Farmers Organization and the National Farmers
Union support inclusion of farm workers in the NLRA. It should be
kept in mind, however, that the membership of these organizations
is comprised of small farm operators with little or no hired labor.
Furthermore, these organizations may very well take such a position
in order to promote their economic interests to the competitive disadvantage of the larger farmers, who would be subject to the
22
NLRB.'
B.
Labor and Federal Legislation
Despite the fact that the farm lobby, which represents the large
agricultural interests, has great influence in Congress, there would
be more movement towards some type of legislation than that which
presently exists if the position of organized labor were more flexible.
The AFL-CIO has supported simple extension of the NLRA to farm
workers, and would certainly not oppose stronger legislation to provide farm workers with special protections-particularly exemption
23
from the Taft-Hartley Amendments.
However, the relative positions of the AFL-CIO and the United
Farm Workers as stated by Mr. George Meany and Mr. Caesar
Chavez respectively, clearly come into conflict with regard to the
type of tactics and strategy involved in their approach to congressional legislation. While Mr. Meany has stated that reform of the
Taft-Hartley and the Landrum-Griffin Acts should be considered as
a separate topic for debate, 24 Mr. Chavez has clearly stated that he
would not support extension to farm workers of the NLRA without
relieving farm workers of what he considers to be the patently unfair
and anti-labor provisions of those two acts. Mr. Chavez has outlined
the following specific provisions which he feels would be required
before his union would support farm labor legislation:
121. Unpublished Hearings on Agricultural Labor-Management Legislation,
suprp note 61. Mr. Triggs named the same nine criteria when he testified in 1972.
Hearingson Agricultural Labor-ManagementRelations, supra note 118, at 80.
122. Hearingson S. 8 & S. 1808, supra note 61, at 103, 227. See note 114 supra.
Furthermore, most of the members of both organizations would not be covered by
S. 8 or other proposals to extend agricultural application of the National Labor
Relations Act since they would most likely not meet the jurisdictional standard of
$50,000 in annual gross sales at the non-retail level. See note 76 supra.
123. Hearingson S. 8 & S. 1808, supra note 61, at 190. See text accompanying
note 125 infra.
124. Id.
172
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[Vol. 23
1. Exemption for a time from the Taft-Hartley provisions which
restrict traditional union activity, especially the ban on recognition
picketing and the so-called secondary boycott, made especially repressive by the mandatory injunction in both cases.
2. Exemption from the operation of Taft-Hartley section 14(b)
which makes misnamed state "right-to-work" laws operative in interstate commerce.
3. It should be made an unfair labor practice for a grower to employ
anyone during a strike or lockout who has not actually established a
permanent residence in the United States."'
This seemingly uncompromising position taken by UFW, regardless of the merits of any of the individual stipulations, has kept
Congress from giving serious consideration to the subject as a whole.
This is the case despite the fact that congressional committees continue to hold hearings on various legislative proposals introduced. 2"
Organized labor, 21 specifically the AFL-CIO Executive Committee,
would not consider placing a simple extension of the NLRA to agriculture workers on the top of its priority list without the full support
of the UFW, now one of its affiliated unions, and the union that
would be most affected by the proposal's implementation.
C.
CurrentProposals
A variety of agricultural labor proposals for collective bargaining
have been introduced in the 93d Congress.' Of these proposals,
Congressman Leggett's seems to reflect the basic position taken by
the AFL-CIO, as well as by the International Brotherhood of Teamsters. It would simply remove the present agricultural exclusion
under section 2(3) of the NLRA and would add a new section, sec125. Id. at 23.
126. While hearings have been held and may continue at intermittent points on
through the 93d Congress, there is certainly no consensus on which approach should
be adopted, nor is there any likelihood that such a consensus will appear. Instead,
it can be inferred that the hearings before the House Agricultural Labor Subcommittee had been precipitated by the jurisdictional dispute and therefore may, in
fact, more resemble an investigative rather than a legislative study.
127. The Teamsters had neither testified nor communicated with congressional
committees that have held hearings on the subject of collective bargaining in agriculture until 1973. Unpublished Hearingson AgriculturalLabor-ManagementLegislation, supra note 61 (testimony of F. Fitzsimmons). An expression of support for
a simple extention of the National Labor Relations Act was given at that time.
128. See note 120 supra. Other proposals include H.R. 881, 93d Cong., 1st Sess.
(1973); H.R. 3862, 93d Cong., 1st Sess. (1973); H.R. 4007, 93d Cong., 1st Sess.
(1973); H.R. 4408, 93d Cong., 1st Sess. (1973); H.R. 8100, 93d Cong., 1st Sess.
(1973). There have not been any bills introduced in the Senate.
19731
COLLECTIVE BARGAINING
tion 8(g), which, in essence, would provide that: (1) no unfair labor
practice would arise when an employer and labor organization make
a pre-hire agreement requiring union membership within seven days
after hiring, and (2) priority for employment would be based upon
seniority." 9 The intent of this proposal is to afford agricultural workers the same type of special treatment as is provided construction
workers, due to their short durations of employment on particular
13
job assignments.
The collective bargaining provisions of the "Farm Workers' Bill
of Rights" contain the aforementioned recommendations offered by
the UFW.' 31 It is based, therefore, on the premise that farm workers,
because of their relative weakness vis-i-vis their industrial counterpart of the American labor movement, should be strictly governed
by the Wagner Act, without the Taft-Hartley restrictions. Naturally, one of the effects of enactment of this proposal would be to
give federal sanction and. protection to the secondary boycotts in
which the UFW has engaged over the past few years.
Congressman Talcott's proposal, entitled the "Consumer Agricultural Food Protection Act,' 32 is, on the other hand, the bill which
farmers who most fear collective bargaining would tend to support.
It defines a farmer as one who has employed more than 500 mandays of agricultural labor during any calendar quarter of the preceeding year,3 3 while at the same time limits the definition of an
employee to one who has been employed 14 days during the preceding month and 100 days during the preceding calendar year. 3 Addi129. H.R. 4007, § 2, 93d Cong., 1st Sess. (1973). Congressman Sisk has introduced legislation to provide a simple extention of the National Labor Relations Act
to farm workers. H.R. 4408, 93d Cong., 1st Sess. (1973). Congressman Leggett has
also co-authored yet another bill that has the support of many employer groups.
See note 120 & text accompanying notes 139-47 supra.
130. See 29 U.S.C. § 158(f) (1970).
131. H.R. 881, tit. 1, 93d Cong., 1st Sess. (1973). See text accompanying note
123 supra. The bill would strike the current agricultural exemption, would exempt
agricultural workers from the secondary boycott and hot cargo provisions of the
NLRA, would exempt agricultural labor from § 14(b), the state right-to-work law
option, and would allow hiring hall agreements between an employer and a union.
The proposal would also make it an unfair labor practice for an employer to hire
any individual not a domiciled American citizen once a strike or lockout has begun.
132. H.R. 3862, 93d Cong., 1st Sess. (1973).
133. Id. at § 3(6). See generally note 9 supra.
134. H.R. 3862, § 3(6), 93d Cong., 1st Sess. (1973). Due to the transient nature
of many farm workers, this employee definition, in addition to the 500 man-day
test, might possibly make H.R. 3862 meaningless if enacted. For instance, in 1971
174
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[Vol. 23
tionally, the bill strictly limits secondary boycotts and picketing to
informational campaigns that clearly identify the product and the
producer. 35 The bill also makes strikes or picketing at harvest time
unlawful.' 3' Collective bargaining would not ensue unless the employees could achieve a majority vote in favor of the union by secret
ballot. 37 The bill also provides for the establishment of a Farm
Labor Relations Board within the Department of Agriculture which
of regulating agricultural laborwould have the responsibility
38
management relations.'
The "Agricultural Labor Relations Act" introduced by Congressmen Leggett and Quie, and supported by many farm organizations,
would establish an independent Farm Labor Relations Board modeled after the National Labor Relations Board.'39 This proposal defines unfair labor practices along the lines of the NLRA with the
following major exceptions: 1) it would be an employer unfair labor
practice to knowingly hire an illegal alien; " ' and 2) it would not be
an unfair labor practice for an employer and a labor organization
to have a pre-hire arrangement as well as a non-discriminatory hiring hall whereby the employee would have to join the union seven
days after his or her employment began.'
The Leggett-Quie proposal points out the changing nature of the
farm employer's interest.' The prohibition against strikes at harvest time that is retained in the "Consumer Agricultural Food Protection Act"'' 3 is vastly modified by a provision allowing either
party, upon a 20-day notice from the other party of either an intent
to strike or to cause a lockout, to invoke a 40-day cooling-off period
at anytime during the next 12 months.' Once this provision is
invoked, a referee is chosen who, not before five days prior to the
expiration of the cooling-off period, must announce a settlement to
the dispute, if a voluntary agreement has not been reached among
the disputants. This settlement would be binding only on the party
farm workers who did other kinds of work during the year averaged only 46 days of
farm work. FARMWORKING FORCE, supra note 82, at 5-6.
135. H.R. 3862, § 101(b)(1), 93d Cong., 1st Sess. (1973).
136. Id. at § 101(c).
137. Id. at § 207(a).
138. Id. at 99 201 - 04.
139. H.R. 4011, §§ 3 - 6, 93d Cong., 1st Sess. (1973).
140. Id.at § 8(a)(7).
141. Id.at § 8(f).
142. See text accompanying notes 114 - 21 supra.
143. H.R. 3862, § 101(c), 93d Cong., 1st Sess. (1973).
144. H.R. 4011, § 13(b)(2), 93d Cong., 1st Sess. (1973).
COLLECTIVE BARGAINING
19731
who invoked the strike delay and sought the arbitration.145 The other
party to the dispute would have the option to accept or reject the
referee's settlement terms. If the terms are rejected, then that party
may resort to self-help by initiating the strike or lockout.' A party
may invoke this 40 day cooling-off provision only once during any
12 month period following the notice to the other party or for the
remaining term of the collective bargaining agreement, whichever
"'
is shorter. 47
VI.
AN
OPPORTUNITY FOR COMPROMISE
One of the conclusions that can be reached from the foregoing is
that most of the interested parties involved in the debate on the
issue of collective bargaining for farm workers support some type of
federal protection. All parties insist that they are very much concerned with the rights of employees to organize as well as the need
for production and free flow of agricultural goods to the American
public.
A. The Need for FederalLegislation
This author believes that legislation is essential to both the longrange objectives of farmers and the immediate needs of farm workers.' Protection could be accomplished at the state level; however,
few positive accomplishments have been realized at that level in our
governmental system.' Therefore, federal legislation seems to be
the most appropriate avenue. Unless such protection is extended to
the agricultural community, it is quite likely that the current unstable situation will become more chaotic-to the disadvantage of
employers, employees, and the general public.
145. Id. at § 13(b)(3).
146. Id. at § 13(b)(2).
147. Id. The distinction between this plan and compulsory arbitration is real
rather than imaginary. In a compulsory arbitration situation the government forces
both sides to accept the decision of a neutral third party. Under the Leggett-Quie
plan a party, not the government, seeks to impose arbitration and then the other
party has the option of whether to abide by the arbitration settlement or ignore it
and seek some form of self-help.
148. Contra, Kovarsky, supra note 9, at 356-60. The author of this article believes that unionization will lead to a sizeable decrease in the demand for hired
farm labor. Eventually, therefore, according to Mr. Kovarsky, migrant workers will
be driven out of agriculture - which he concludes is in the best interest of the farm
worker in the long run.
149. See text accompanying notes 23-72 supra.
176
B.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 23
A Realistic Proposal
In order to achieve the desired results, the interests that have
been expressed by various organizations, such as the UFW and some
of the employer groups, will have to be tempered. From this standpoint, both the "Consumer Agricultural Food Protection Act"'," and
the "Farm Workers' Bill of Rights""'' are unpalatable. To their
credit, many of the farm organizations have shifted from total opposition to any collective bargaining apparatus to the position reconstructive proposal offered by
flected by the quite reasonable and
52
Congressmen Leggett and Quie.
Because organized labor can, at this time, deny passage of any
farm labor legislation and because the AFL-CIO must, to a large
extent, follow the wishes of the United Farm Workers, the latter
must adopt a more reasonable and practical position. The following
provisions seem to be reflective of both a practical and reasonable
position that could be adopted as a national agricultural labor
collective bargaining policy:
1. The establishment of an independent Farm Labor Relations
Board, modeled after the NLRB except that its members should
serve for a longer period of time, preferably at least ten years.
2. The inclusion of the seven day hiring arrangement together
with a preferential hiring hall provision that is applicable at this
time to the construction industry under the NLRA.
3. The adoption of the NLRA provisions on secondary boycotts,
hot cargo agreements, and the right-to-work laws.
4. The establishment of a maximum-minimum limit of coverage
between 50,000 and 20,000 dollars in gross sales of an employer in
the previous calendar year.
5. A prohibition against employment of the green card temporary worker in agriculture; the establishment of an unfair labor
practice for an employer to knowingly hire an illegal alien.
6. The requirement that a secret ballot election be held before
a labor organization is recognized unless the Farm Labor Relations
150. H.R. 3862, 93d Cong., 1st Sess. (1973).
151. H.R. 881, 93d Cong., 1st Sess. (1973).
152. This, of course, excludes those farm organizations, specifically the National
Farmers Union and the National Farmers Organization that have long supported
a simple extention of the NLRA to agriculture. See note 114 supra. Naturally,
organizations such as the American Farm Bureau Federation have not taken an
altruistic position. Their change in position is based on a variety of practical reasons, one of which is no doubt the growing public support and publicity garnered
by Caesar Chavez and his union.
1973]
COLLECTIVE BARGAINING
Board feels that such an election could not be conducted fairly due
to employer unfair labor practices. Alternatively, the Farm Labor
Relations Board should be empowered with the authority to certify
a union that lost an election due to employer or rival union unfair
labor practices, should it feel that "laboratory conditions" could not
be restored in a short period of time so as to insure a subsequently
held fair election.
7. The availability to either party of the option to delay a strike
or lockout for 20 days, with a referee to be chosen at the outset of
the strike delay period. The referee should act as an impartial arbitrator with his recommendations binding only on the party seeking
the delay.
This proposal, taken as a whole, offers provisions that are favorable to labor, as well as provisions that are favorable to management.
It is constructed with that intent, so that if one of the provisions
were removed, the aura of total compromise would be placed in
jeopardy. A review of this proposal follows.
1. The Farm Labor Relations Board
Organized labor has objected to the establishment of a separate
Farm Labor Relations Board.1 53 However, there is no plausible reason for objecting to an independent agency so long as that agency
is constructed in an impartial manner. One way to insure against
one-sided policymaking would be to create a five-man board, four
of the members to be selected by the President with the advice and
consent of the Senate. Of these four members, no more than two
could be from either political party. The fifth member would be
selected by a unanimous vote of the four other members. Furthermore, the members of the agency should be given lengthy terms of
office so as to provide for and promote a sense of stability in
decision-making that would not be hindered by a constant shuffling
'5
in its makeup. 1
The establishment of a separate panel would also allow some
federal independence in farm labor policymaking, as the Board
153. This belief stems from the feeling that a separate farm relations board
would be pro-agriculture and from the strong support that organized labor has
historically given to the NLRB. See Hearingson S. 8 & S. 1808, supra note 61, at
193-94.
154. One of the criticisms constantly lodged against the National Labor Relations Board is that it lacks uniformity in decision-making, thereby leaving many
people unsure exactly as to what the current law on a given subject is at a given
point in time. See Hearings on S. 3671, supra note 59, at 193.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 23
would thus not be restricted to criteria established by a nearly 40
year-old agency set up to regulate industrial labor relations. In this
manner, the differences between agriculture and industry, which
most observers agree exist to varying degrees, could be officially
recognized.
2. The Pre-Hiring and Hiring Hall Arrangements
These provisions recognize that as a result of the seasonal nature
of employment and the consequent short duration of work assignments, it is advisable to establish a firm labor-management relationship at a very early stage in the employer-employee relationship. Such provisions are strongly favored by organized labor, and
often are not strongly opposed by employers, since they offer easy
and convenient means of obtaining workers. 5 '
3. Retention of the NLRA Provisions on Secondary Boycotts, Hot
Cargo Agreements, and Right-to-Work Laws
Caesar Chavez has stated that he opposes the amendments that
have been made to the NLRA since 1935, particularly those approved in the Taft-Hartley Act of 1947. Chavez and the UFW maintain that the farm labor movement is in the same embryonic stage
that industrial workers and unions faced in 1935-and, therefore, a
period of national encouragement of union organizing is necessary.,"
Admittedly, a persuasive argument is made by the UFW for at
least preserving the legality of their secondary boycott techniques.
The argument presented is that the retail stores are economically
so inextricably connected with the growers that they are in effect
morally involved in the union struggle. 15
155. Employers who accept such provisions do so out of necessity. Agricultural
employers have never been compelled to accept the hiring hall as a prerequisite of
doing business. They argue that such a provision represents a surrender of their
right to hire and fire, that employment would not necessarily be related to the
employer's perception of an employee or potential employee, but rather to his or
her status and seniority in the union. In fact, it was the UFW's hiring hall
demand with respect to the grape contracts that proved crucial to the growers in
deciding to switch to the Teamsters. Both the growers and the Teamsters feel that
the hiring hall had been used by the UFW for intimidation and coercion. Wash.
Post, April 16, 1973, § A, at 3, col. 1. Mr. Eugene Nalbandian, one of the largest
growers in the Lamont Arvin area in California said that the hiring hall was not
the main issue but rather the only issue. He was quoted as saying, "[s]ixty days
ago I was ready to sign with Chavez. We asked only one thing: That they eliminate
the hiring hall. He had a million demands but we were ready to meet them all
except the hiring hall." N.Y. Times, July 30, 1973, at 46, col. 1.
156. See note 61 supra.
157. See generally Koziara, Collective Bargaining in Agriculture: The Policy
1973]
COLLECTIVE BARGAINING
Even if this were the case, the retail store, except under unusual
circumstances, is in no position to significantly contribute to a
labor-management settlement. A retail store is as much a "neutral"
as are many industrial employers who are protected by the NLRA
secondary boycott ban (such as where neutral employer A's carpenters refuse to install doors that are manufactured by employer B
because B is either nonunion or his employees are on strike).' The
concept of protecting these neutral employers in labor disputes has
long been recognized as a positive policy in the United States, and
on this basis there seems to be no outstanding reason why one area
of labor-management relationships should receive special treatment.' 9 Such special treatment in the agricultural sector would
have a tremendous impact on the public interest due to the seasonable and perishable nature of the agricultural product. Therefore,
it can only be concluded that such treatment could only breed that
kind of industrial strife that should be avoided. If one recognizes any
type of public interest in labor-management relations, federal sanction of the secondary boycott in agriculture must be rejected.
4.
The Extent of Coverage
This particular issue is one of the major points of disagreement
in the debate, and the proposal here put forth seeks to achieve a
middle ground between the extremes. With this in mind, the Farm
Labor Relations Board would be allowed to choose a basis of coverage on the dollar amount of the employer's gross sales anywhere
between 20,000 dollars and 50,000 dollars. ' When the figure is chosen by the Board, it would be applied in all cases until the agency
should decide that a different amount within the statutory range is
desirable. A change in the coverage would be made on the basis of
such factors as agricultural technological development, inflation,
Alternatives, 24 LAB. L.J. 424, 433-36 (1973).
158. 29 U.S.C. § 158(b)(4) (1970).
159. See, e.g., a survey taken in 1971 on the question of a law making unlawful
all secondary boycotts showed 44 percent in favor, 34 percent opposed, and 22
percent undecided. Union members opposed such a law by only a 44 percent to 42
percent margin. OPINION RESEARCH CORP., PUBLIC THINKING ON UNIONS AND LABOR
LEGISLATION,
52-53 (1971).
160. It can be estimated that such a test would cover at the maximum 272,000
farms or 30 percent of all farms, and 870,000 farm workers or approximately 60
percent of all hired workers. Minimally, the test would cover 128,000 farms or 14
percent of all farms, and 697,500 farm workers or 48 percent of all hired workers.
See generally HIRED FARm WORKERS supra note 75.
180
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and increased consolidation of farms, which, taken as a whole, realistically necessitate a different jurisdictional amount.
5. Green Card Workers and Illegal Aliens
By prohibiting green card workers in agriculture and by making
it an unfair labor practice to knowingly hire illegal aliens, a more
competitive employee supply and demand ratio would be realized.
Such provisions would tend to force employers to work within the
statutorily
prescribed and enforced federal labor-management sys61
tem.
6.
Secret Ballots
This proposal deviates to a degree from current NLRB practices
which allow the issuance of a bargaining order without an election
under certain proscribed conditions. 6 2 Under this plan, avoidance
of the secret ballot would only be tolerated if the Board thought an
election could not be held in a fair manner due to unfair labor
practices by the employer or by a rival union or unions.
Secret ballot elections represent a major ingredient in a democratic society. The intent of any farm labor act would be to promote
and protect the rights of an individual employee-and in some instances these rights would be diluted absent the use of a secret
ballot. The secret ballot is needed to insure that employees know
what issues are involved in union recognition or non-recognition.
The maintenance of a secret ballot provision makes it highly unlikely that an employer could choose a favorite union when two
unions are vying for recognition. Likewise, the secret ballot would
tend to prevent labor from employing any questionable tactics to
gain support among a potential bargaining unit.
7. Delay of a Strike or Lockout
This provision is a modification of one originally advocated by
former Secretary of Labor George Shultz." 3 It is modified by reduc161. Legislation making it a criminal offense for an employer to knowingly hire
an illegal alien has passed the House of Representatives in the 93d Congress. See
H.R. REP. No. 108, 93d Cong., 1st Sess. (1973). Legislation to abolish the 1-151
green card alien registration program was introduced in the 92d Congress by Sena-
tor Muskie. S. 1488, 92d Cong., 1st Sess. (1971). This program is authorized under
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(14) (1970). See generally
Comment, The Farm Worker: His Need for Legislation, 22 U. ME. L. REv., 213,
215-16 (1970); Hearings on S. 8 & S. 1808, supra note 61, at 160-64.
162. See note 53 supra.
163. The proposal put forth by Mr. Schultz called for'a ten day strike notice and
1973]
COLLECTIVE BARGAINING
ing the strike or lockout notice requirement to five days and the
delay period to 20 days. Obviously, the intent of this plank of the
proposal is to recognize that in agriculture a union can hold a measurable advantage if it calls a strike at or around harvest time.
The employer would be able to delay the strike for a 20-day period
at any time during a 12-month period after the strike notice is
received. Once the notice is received, the Federal Mediation and
Conciliation Service would be called in to assiit the parties in attempting to achieve a voluntary settlement. When the delay period
is announced, a referee would be called in to arbitrate. His decision,
if a voluntary settlement could not be achieved in the interim,
would be binding only as to the party who sought the delay of the
strike or lockout.
The modifications made are intended to put more balance in Mr.
Shultz's original proposal by giving the party seeking the delay less
chance to make the arbitration and the proposed settlement meaningless. A 20 rather than 40-day delay would not necessarily assure
the employer of a successful harvest. To legislate such an assurance
would place the union in a severely disadvantaged position, with
possibly nothing to bargain over during the delay or at the culmination of the strike.164 Yet, the modifications do provide some measure
of protection to the employer.
VII.
CONCLUSION
The just described proposal is formed in a mold of compromise.
Though it admittedly resembles, to a certain degree, the LeggettQuie bill, it constitutes a modification to the extent that labor and
management both are forced to yield on a number of very important
subjects.' 5
a thirty day cooling off period. Hearings on S. 8 & S. 1808, supra note 61, at
133-68. At these hearings the Secretary stated that the Nixon Administration was
preparing legislation that would incorporate this strike delay proposal and would
establish an independent farm labor board. Id. at 139-40. Such a proposal has
never materialized except to the extent that it has been adopted in the LeggettQuie bill. H.R. 4011, § 13(b), 93d Cong., 1st Sess. (1973). See text accompanying
notes 139-47 supra.
164. This position has been expressed by George Meany, who said in response
to the proposal put forth by George Schultz that the farm workers' ". . . supposed
right to strike at the end of that period would usually be valueless, and they would
have no real option but to accept the arbitrator's terms." Hearings on S. 8 & S.
1808, supra note 61, at 194.
165. See Petro, Agriculture and Labor Policy, 24 LAB. L.J. 23 (1973), in which
the author reviews the Leggett-Quie bill and concludes that enactment, despite the
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The proposal, and in fact this analysis, is geared towards achieving an equitable arrangement in agricultural labor relations. While
it is only in outline form, giving the basic characteristics of a fullydeveloped legislative package, this author feels that it offers the
most reasonable opportunity for achieving basic national goals.
These goals include, not in any particular order as to priority, the
right to self-organization for America's farm workers, protection for
farmers and labor organizations against tactics and events that
might be deemed unlawful if considered in an industrial context,
and stability in agricultural labor policy to the benefit of the public
interest.
These interests could be recognized and protected if the legislative model outlined herein were adopted. The extension of federal
protection to the farm worker appears to be the best means to enable
him to take advantage of his inherent right to participate in events
shaping his life.
GARY L. LIEBER
support it has engendered from agricultural management organizations, will result
in the same pro-union policies that he feels exist today in the industrial setting.
While the fact that Mr. Petro writes from a particular point of view must be
recognized, his comments are otherwise significant to point out that the proposal
put forth in this comment is one forged in compromise, certainly not to the sole
advantage of either labor or management, but truly aimed at providing fair and
meaningful collective bargining in agriculture.