By Nicole Foy, CalMatters
A new law expanding rights for California farmworkers seeking to unionize went into effect in January, but it’s already scheduled for some major revisions.
Gov. Gavin Newsom signed AB 2183 in September last year, which significantly changed the way the state’s farmworkers can vote to unionize by allowing farmworkers to vote by mail or by signing union authorization cards. Now a compromise may claw back some of the union’s gains.
The law drew intense criticism from growers and the agricultural industry, while the United Farm Workers labor union garnered public support for the measure with a 335-mile march to Sacramento. National attention and pressure for Newsom to sign the measure peaked with a public statement of support from President Joe Biden.
Newsom reluctantly signed the bill— but with the caveat that during the current legislative year there would be compromises enacted to change the law. Labor leaders signed a letter agreeing to the changes.
The law went into effect on Jan. 1, but so far no bill with the agreed-upon changes had been filed by the Feb. 17 bill introduction deadline.
Neither union officials nor the governor’s office would comment on why.
“The Governor looks forward to signing the agreed upon amendments strengthening implementation and voting integrity in last year’s legislation expanding union rights for farmworkers,” said Omar Rodriguez, a spokesperson for Newsom’s office.
How farmworkers unionized
California farmworkers previously were able to vote for unions by filling out secret ballots in-person, usually on their employer’s property.
It was a two-step process. A majority of farmworkers at a worksite or company would first call for a union election by petitioning the Agricultural Labor Relations Board and notifying the employer. Then they would hold an in-person secret ballot, often at the worksite.
If a majority voted to unionize, the employer had to recognize the union.
Labor advocates say this process poses significant barriers for farmworker unionization, as many workers fear employer retaliation.
More than half of California’s farmworkers are undocumented. Also a 2021 Supreme Court decision put limits on union organizers’ access to growers’ property.
Farmworkers are not covered by the union protections afforded most other workers under the National Labor Relations Act. California’s agricultural workers didn’t gain the right to unionize until 1975, when Gov. Jerry Brown signed the Agricultural Labor Relations Act, after years of United Farm Workers activism to improve work conditions.
Union membership among farmworkers and the UFW’s power have since waned.
At the height of the UFW’s power in the 1970s, it had roughly 150 contracts and 80,000 members in California, Texas, Arizona and Florida.
By the end of 2021, the UFW’s contract count had fallen as low as 31 nationwide, and a federal report showed membership at 5,512. But union leadership said that is a substantial undercount that was done in late December, when many farmworkers don’t work.
UC Merced estimated in 2021 that farmworker union membership had fallen to a statistical 0%. More recently the Bureau of Labor Statistics reported 3.9% union membership in agriculture and related industries.
What changes with AB 2183
With the new law in effect agricultural employees have two options to unionize.
Farmworkers can vote with mail-in ballots in an election process, but growers must agree to maintain neutrality. Or, if growers don’t agree to maintain neutrality, farmworkers can vote via “card check,” a simpler process allowing employees to sign cards to show their union support.
The Agricultural Labor Relations Board handles these union petitions. The board said in its January budget request it has conducted six elections since fiscal year 2016-17. The agency asked for $1.1 million in the budget request, citing possible increases in unionizing activity because of the new law.
“This will also significantly increase the number of election objections and unfair labor practice charges that will be filed,” the agency wrote.
The new funds would pay to hire three attorneys and three field examiners in the Salinas, Oxnard and Visalia field offices. They would be responsible for conducting elections, investigating unfair labor practices and prosecuting unfair election activity and bargaining violations.
The board warned it would be unable to meet “stringent” timelines imposed by the new law without the funds.
Persistent opposition
Grower groups vehemently opposed farmworkers voting by mail and argued against removing the secret ballot process, saying it would allow too many opportunities for fraud while placing too much power in unions’ hands.
“What that’s really doing, at the end of the day, is getting around the whole secret ballot election process,” said Matthew Allen, vice president of government relations at the Western Growers Association.
Newsom has said he was reluctant to sign the new law due to concerns about privacy and the security of the new ballot process. He eventually signed it, after vetoing similar legislation in the past, on the condition that several parts would be amended and clarified during this legislative session.
The most significant condition calls for completely removing the law’s mail-in voting process. Instead farmworkers would only vote via the one-step card-check process.
The changes, which the UFW agreed to, also would cap the number of new unions organizing via card check at 75 in total, until the bill expires in 2028.
With these changes still anticipated, it’s unclear how much organizing the UFW will attempt under the current regulations.
Antonio De Loera-Brust, a UFW spokesperson, said union leadership plans to honor their agreement with the governor and hopes it will be codified soon. He wouldn’t comment on the UFW’s plans.
“We want this done as soon as possible,” he said.
As the deadline for filing new bills has passed, the agreed-upon changes to the new law could become part of a revision of one of the 2,600 bills already introduced this session. Or Newsom could include the changes in his budget revision in May.
The Governor’s office and the UFW declined to comment on how changes to the law would occur.
Traditionally much of the agricultural industry opposes unionization, usually citing already rising labor costs. Promised changes to the new law, including eliminating mail voting, have not altered that.
Allen, of the Western Growers, said he disagrees with implementing card check, regardless of the compromise changes. He said removing the secret ballot process is “forcing” farmworkers into unionization.
“We weren’t consulted on that, and we remain heavily opposed to this,” Allen said.
De Loera-Brust, on the other hand, said the new voting rules are not a “silver bullet” for unions. Barriers remain to organizing farmworkers, who often are isolated and scattered across rural areas, underpaid, and concerned about their jobs and immigration status.
“What this does is give workers a fighting chance,” he said.
