ALRB Initiates Educational Access Rulemaking

On Dec. 3, the Agricultural Labor Relations Board (ALRB) decided to proceed with a proposed regulation allowing the Board to give its staff the right to trespass on farmers’ property for the purpose of educating farm workers about their rights under the Agricultural Labor Relations Act (ALRA).  The Board, and particularly Board Chairman William Gould, are convinced that on-site workers education during working hours (though as envisioned by the Board, access will occur during the lunch period) is necessary because farm workers have no other means available to them to learn about their rights under the Act.

The next step in the regulatory process will be a proposed regulation, followed by a minimum 45-day comment period, a likely public hearing, and a final regulation unless the comments and hearing convince the Board to change its proposal.  In that instance, an additional comment periods will be provided to allow comment on any revisions.

The idea for an “access regulation” grows out of the Chairman’s belief that conditions of farm workers have not changed since the inception of the ARLA, when the Board gave itself the power to allow labor unions to trespass on farmers’ land for the purpose of educating and organizing workers.  The Board’s interest in an educational access regulation led to hearings across the state last summer, preceded by a meeting of an “ad-hoc” group of farm employer, farmworker advocate, and union stakeholders.

Hearings on the notion of an access regulation last summer revealed a belief on the part of many farmworker advocates that material conditions of farm workers have changed little since the early days of the Ceasar Chavez-led unionization drives of the 1970s, when the agency gave unions the right to trespass on farmers land to rally unionizing workers because they could supposedly be reached nowhere else.

This image ignores the reality that many farm workers have settled out of the migrant worker stream and into communities around the state, many living permanently or semi-permanently in homes and apartments.  Cell phone ownership and usage is nearly universal, and farm workers readily make use of these telecommunications resources to find nearby employment for incrementally greater compensation, sometimes leaving farmers without a labor force in mid-harvest.

Proponents of educational access express concern that labor unions have brought relatively few cases before the Board, or its Administrative Law Judges, in recent years and take this as a sign that workers must not know about the existence of the Board or the ALRA.  While this may be more an indication of the United Farm Worker’s (UFW) ineptitude as a labor union that organizes workers, negotiates contracts, administers grievances, and otherwise does the hard work of being a labor union, the fact is the ALRB has not been totally moribund.  Agricultural management attorneys across the state report handling dozens of cases in recent years where worker have brought complaints to the ALRB or its agents alleging infringement of their ALRA-protected rights to protected concerted activity, where those workers work together to improve their wages or working conditions.

One of the reasons cited by the Board to justify educational access is the prevalence of non-Spanish (or non-English)-speaking farm workers, who speak languages indigenous to Mexico and other Central American countries.  Yet the Board is unwilling (or unable) to explain how it either intends to employ enough interpreters to accommodate this huge variety of languages, or how to even know which interpreter to bring when it undertakes educational access.

The Board believes it’s past efforts at using media have been unsuccessful, thought those efforts have not sought to use these indigenous languages, the existence of which the Board seems only now to be aware.  Community service organizations have been providing health fairs, educational services and other means that ALRB could easily “piggy-back” on to deliver education to workers about their ALRA-protected rights.

Early indications are that educational access will be triggered by a petition of two or more workers to the ALRB.  One wonders if these two workers have the wherewithal to contact the Board or one of its regional offices to initiate an educational access action, why can’t the Board use that contact as a means to educate those very workers about their ALRA-protected rights?  In like manner, the Board is toying with a “firewall” that will isolate it’s educational activities from it’s enforcement activities.  Given the Board’s limited resources, it’s doubtful the Board will be able to find, recruit and train staff who’s only responsibility will be worker education.