Jul 24, 2015

Commentary: Rules govern union access to farms for ‘heat sweeps’

The United Farm Workers labor union has recently engaged in a flurry of activity. UFW public communications call these actions “heat sweeps during harvest,”meaning they may continue throughout the summer and fall. Key to this activity is taking access to California farms.

How, you may wonder, can UFW gain access to farms? It can do so under a regulation adopted by the state Agricultural Labor Relations Board promptly after its creation in 1975. The California Supreme Court upheld the access regulation in 1976.

Under the regulation, UFW is allowed worksite access to farm employees by providing their employer with a copy of a Notice of Intent to Take Access, or an NA form, and then filing with the ALRB two copies of the NA, along with proof that the copy was provided to the employer.

The access regulation was created on the premise that it would protect the organizational rights of employees and labor unions, but the regulation does not limit its application to situations where a union’s purpose is to try to organize employees or otherwise seek their support. Its operative language merely says, in effect, that a union may take access to “meet and talk with employees.”Indeed, the ALRB NA form does not require a union to declare any purpose for seeking access.

UFW claims its campaign is intended to protect employees from heat illness by determining whether they have been provided with shade, drinking water and cool-down breaks as required by Cal/OSHA, the state Division of Occupational Safety and Health, in its Heat Illness Prevention Standard.

It’s no coincidence that UFW’s “heat sweeps”follow right after UFW settled with Cal/OSHA in its long-running Bautista lawsuits. In that litigation, UFW alleged the Heat Illness Prevention Standard and Cal/OSHA’s enforcement of it on farms were both deficient.

Under the settlement, Cal/OSHA agreed to give high priority to UFW complaints of violations. The settlement agreement continues: “In circumstances where an on-site inspection (by Cal/OSHA) to document the violative condition is not possible, (Cal/OSHA) may rely on evidence provided by (UFW) to support the issuance of a citation.”

We continue to advise farmers and ranchers about the importance of stringent compliance with the Heat Illness Prevention Standard. Employers should:

• Periodically review their heat-safety procedures with employees — and before work each day that the temperature may hit 95 degrees.
• Review their procedures for providing shade, drinking water and cool-down breaks as required by the standard.
• Ensure they have provided for adequate emergency communications and response procedures.
• Ensure each work location is provided with a copy of the employer’s heat illness prevention plan.
• Ensure that records of heat illness prevention training provided to employees are complete and readily available for inspection by Cal/OSHA.

Farm employers need to understand that while UFW and its organizers may under a valid NA enter their worksites to talk to employees, this right to access is subject to certain limitations and ground rules:

• How often may a union take access? Up to four 30-day periods each calendar year.
• How does a union gain access? By filing and serving copies of an NA as noted above.
• When and where can union organizers take access?
  – One hour before work and one hour after work wherever employees gather, including in parked buses in which employees ride to and from work; and
  – During the employees’ lunch period (for no more than one hour) wherever employees eat lunch.
• How many organizers can take access? Two per crew of up to 30 employees, plus one for every 15 additional employees.
• How must organizers identify themselves? Each organizer must wear a badge stating the organizer’s name and the name of the organizer’s union. In addition, upon request of the employer or employer’s agent, each organizer must state his or her name and the union’s name.
• May organizers disrupt work? No, they may not disrupt the employer’s property or agricultural operations. Speech alone, however, is not disruptive conduct. Disruptive organizers may be expelled.

Despite the access regulation, farm employers have certain rights to control access to their land and operations and are urged to protect those rights. They should:

• Maintain gates and fences where possible and practical, in order to protect property and provide biosecurity and safety, and post property lines.
• Train their supervisors to “greet”anyone seen in the field who is not an employee and ascertain their purpose in being there.
• Train their employees to direct anyone who is not recognized as an employee or a guest to the farm office or to a supervisor.
• Inform employees that they have the right not to talk to anyone they don’t want to talk to.

Union organizers who have entered a farm without having complied with the requirements of the access regulation are trespassing and may be required to leave.

— By Bryan Little and Carl Borden, California Farm Bureau Federation