Union bill heads to governor, stirs ballot card debate

By Kevin Hecteman

A bill purporting to make it easier for farm employees to vote for union representation is on its way to Gov. Gavin Newsom, who vetoed similar legislation last year but faces intense pressure from labor advocates to sign the new version.

Assembly Bill 2183 started as a rerun of last year’s AB 616, which was advertised as allowing mail-in voting for union elections. But opponents, including the California Farm Bureau, argued that AB 616 would replace state-supervised secret-ballot elections with a “card-check” system allowing a union to collect and return to the state board overseeing agricultural labor relations signed ballot cards along with a petition. If a majority of employees signed ballot cards, the union won the election.

Newsom vetoed that bill, prompting its author, Assemblyman Mark Stone, D-Scotts Valley, to try again this year.

Farm Bureau Senior Counsel Carl Borden said the current bill is also flawed.He said AB 2183, as amended Aug. 22, poses a dilemma for agricultural employers.

Borden said they may agree to a “labor peace” compact in which employers allow union organizers enter the worksite. Under that scenario, an employer is to refrain from expressing any opinion on union representation and a mail-ballot election will be held.

Under an alternative in the legislation, Borden said, employers can maintain property and free-speech rights. But, in that case, they would be subject to unionization through a card-check process.

“A voter kit request form could be submitted by either an employee or a union representative, so authorized by the employee,” Borden said. “In other words, a union organizer can urge an employee, ‘Sign this voter kit request form. A ballot for you will be mailed to my address. When I get it, I’ll fill it out and then bring it to you. You’ll sign it, and I’ll return it for you, OK?”

The request form, Borden said, would ask for information including the employee’s name and address; the name and address of the person submitting the form; and the address to which the voter kit is to be mailed.

Stone and the United Farm Workers union have argued that the new bill expands voting options for agricultural employees by allowing them to vote at a physical location, by mail or by dropping off a ballot card to the Agricultural Labor Relations Board office.

But Borden said the bill, passed in the state Assembly and Senate on Aug. 29, opens a window for potential coercion and manipulation of the voting process by union organizers.

“The bill doesn’t say the voter kit must be mailed to the employee’s address,” Borden said. “The form could be filled out to direct the employee’s voter kit to be sent in care of the union agent who is submitting the form. And the bill does say a labor organization representative may fill out all of the information contained in a mail ballot, except for the employee’s signature.

“This scheme does not ensure voting by secret ballot,” Borden said. “Indeed, it encourages undue influence being exercised by union agents on vulnerable farm employees in making a crucial choice affecting their livelihoods.”

Borden also countered claims by the measure’s sponsor, United Farm Workers, that the amended bill accommodates Newsom’s requests.

“UFW is being disingenuous in their claim they gave the governor 90% of what he wanted,” Borden said. “Not really. The governor wants farmworker elections to be secure, and he doesn’t want any interested party be able to improperly influence voters.”

On Aug. 25, Newsom’s office indicated he couldn’t support AB 2183 as it then stood; and it was not amended before the Legislature adjourned Aug. 31. The constitutional deadline for the Legislature to adjourn was midnight Aug. 31. Any bill that didn’t reach the governor’s desk before then is dead for the year.

The governor’s statement indicated support for the goal of giving agricultural employees a fair shot at deciding whether to join a labor union.

“However,” the statement read, “we cannot support an untested mail-in election process that lacks critical provisions to protect the integrity of the election, and is predicated on an assumption that government cannot effectively enforce laws.”

Newsom had not yet acted on AB 2183 by Friday afternoon.

The present system allows for secret-ballot elections under the supervision of the state Agricultural Labor Relations Board.

“The ALRB typically holds these elections on the employer’s property for the convenience of the employees,” said Bryan Little, director of employment policy for the California Farm Bureau and chief operating officer of Farm Employers Labor Service, a Farm Bureau affiliate. Holding the election at the workplace also serves to maximize participation, he added.

“Proponents of AB 2183 claim that having elections at worksites lets employers intimidate and unduly influence their employees to vote against unionization,” Little said. “If the ALRB believes employees will be intimidated at a worksite election, the ALRB can and does conduct elections at locations other than the worksite.”

Under AB 2183, names of employers who agree to “labor peace” compacts would be posted online, Borden said. Once a union files a notice of intent to take worksite access under AB 2183, Borden noted, the gag order prohibiting employers from commenting on union representation kicks in for as long as the compact or any annual renewal of it is in effect.

“Currently, an employer can exercise free-speech rights to inform employees, ‘Here’s how the company regards unionization. Do you really want to have 3% of your wages taken out for union dues? And we wouldn’t be able to unilaterally raise your wages or increase your benefits as in the past,’” Borden said.

Self-sacrificing an employer’s freedom of speech is the price of labor “peace,” Little noted. “If you wanted to avoid having unionization decided by card check, that would be the only way to do it,” Little said.

Starting in 1975, the ALRB had a regulation permitting union organizers to enter private agricultural worksites to communicate with employees for four 30-day periods annually, on the theory that farm employees would be difficult to contact at any location other than the worksite. The U.S. Supreme Court ruled that regulation unconstitutional as an uncompensated easement last year in Cedar Point Nursery v. Hassid.

An employer agreeing to a labor peace compact would have to grant worksite access to organizers as previously allowed by the access regulation.

Little said communication by employers with their employees is crucial to ferreting out issues that could lead some to seek union representation.

“The key thing for employers,” Little said, “is don’t give your employees any reason to feel that they need a third-party union to represent their interests.”

(Kevin Hecteman is an assistant editor of Ag Alert. He may be contacted at khecteman@cfbf.com.)