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Tagged with: Positive Employee Relations, Union Organizing
The images of farm workers in the hot fields and employees in chicken processing plants are not hard to find online, and they make classic cases for unionizing. In the food & agriculture industry, a large segment of the workers are low-wage employees, and many are in the U.S. on visa programs or are undocumented immigrants. The food and agriculture industry is large and has a mix of issues that include declining numbers of family-owned farms leading to increased hiring, labor shortages and an uncertain labor supply, and undocumented immigrants in a murky employment situation, to name a few. Labor relations in the food and agriculture industry have unique considerations because it relies primarily on human labor, with some able to unionize and others relying on exerting pressure on employers through walkouts and protests that usually encourage boycotts. The following sections give an overview of the status of labor relations in the food & agriculture industry.
The food & agriculture industry consists of various operations and supporting sectors. Per the USDA Economic Research Service, the food & agriculture industry sectors employed 19.7 million people and contributed $1.055 trillion to the U.S. GDP. The industry accounted for 10.3 percent of total U.S. employment.
The farming and food and beverage manufacturing sectors are the main focus of this discussion since the stores and eating and drinking places, like Starbucks, are discussed separately as retail.
Diving deeper into the industry reveals many labor issues that attract labor unions. Since the agricultural and food and beverage sectors are very different, labor relations issues are unique to each. The complexity of the workforce in this industry makes it important for your company to have employee and labor relations expertise to avoid corporate reputational damage and government assessments and penalties. For example, the Department of Labor (DOL) reports that 1,000 investigations in the agriculture sector in 2021 led to $8.4 million in back wages and $7.3 million in penalties assessed against employers.
Agricultural workers or farm workers have the following characteristics per the USDA.
One acknowledged issue is that the legal status of hired workers is difficult to measure, but estimates say approximately half of hired crop farmworkers lack legal immigration status. More than 80 percent of farmworkers are settled and aren’t migrants, meaning they work at a single location.
Agricultural workers are specifically excluded from the (NLRA), meaning they aren’t protected should they organize and form a union for the purpose of collective bargaining. Without NLRA protection, farmers don’t have to recognize a union, and this has discouraged organizing in the past, partially explaining the low unionization rate. Since the National Labor Relations Act doesn’t protect them, agricultural workers don’t have any federal or state protections from employers firing or disciplining a worker for participating in labor or unions. Agricultural workers aren’t forbidden from forming unions, and they have other strategies they can pursue to pressure employers.
Farmers generally don’t want unionized workers because workers can strike at any time, leaving them with crops that can perish and cause serious financial problems. They do hire independent contractors who are responsible for providing workers. But if the workers are unionized, there is a fear that labor costs will increase. In summary, many agricultural workers are not considered “employees” because of their legal status. However, other positions do fall within the employee category, and they get protections through agencies like the NLRB, the EEOC, and the Department of Labor.
The largest percentage of food processors (29.7 percent) work in the meat and poultry slaughtering and processing industry. They include butchers and other meat processors and poultry and fish processors. Most processors work in food manufacturing plants which include bakers, grain milling, sugar and confectionaries, fruit and vegetable preservation, dairy products, and seafood. Per Data USA, which uses Census Bureau data:
The food processing and manufacturing industries are somewhat different from the agriculture situation. Though the industry does utilize undocumented workers, many workers are employees. In the 1996 case of Holly Farms Corporation vs. the NLRB, it was determined that even live haul crews (hauls of live animals) are employees. Unskilled immigrant workers who work in food processing and not agriculture can obtain a temporary H-2B visa. Employees in manufacturing plants are under the frequent scrutiny of OSHA and the DOL, so there is more caution about hiring undocumented workers.
The Migrant and Seasonal Agricultural Worker Protection Act of 1983 set employment standards concerning wages, housing, transportation, disclosures, and recordkeeping for migrant and seasonal agricultural workers. Farm labor contractors and the people employed by them are supposed to register with the DOL. The Act also prohibits the knowing employment of undocumented immigrants. Therefore, this legislation only applies to employees.
In today’s pro-union environment, federal and state efforts to address the working conditions of all workers in the food and agriculture industry are already increasing and will accelerate in 2023 and beyond.
On September 28, 2022, the California governor signed a bill (AB 2183), supported by President Biden, that allows farmworkers to vote by mail for union elections. However, he also said he had agreed with the United Farm Workers (UFW)and the California Labor Federation on future legislation protecting worker confidentiality. That agreement or amendment will eliminate mail-in voting for unions and replace it by allowing workers to simply sign a UFW card.
The pandemic was a significant impetus for union support. Low-wage farmworkers and food processors had to continue working to produce food for people staying safe at home. A study of COVID-related mortality found that Californians aged 18-65 years in the food and agriculture industry experienced a 39 percent increase in mortality compared to historical data, which was the highest among industries.
The United Farm Workers union has had difficulties unionizing the food processing and agricultural sectors for several reasons. One reason is that workers in different job categories don’t band together, creating a fragmented workforce. Other reasons include the dispersed locations of workers in rural areas and the mix of employees and undocumented immigrants. The UFW has decided it will gain more ground through political advocacy and was instrumental in getting California’s AB 2183 passed. The UFW currently only has a few dozen contracts that cover year-round workers, and two California facilities voted for decertification in 2021.
The UFW vision posted on their website reads: “Many landmark recent UFW-sponsored laws and regulations protect all farm workers in California, especially at non-union ranches. They include the first state laws in the nation providing farm workers with overtime pay after eight hours a day in California, Washington state, and Oregon; the first comprehensive standards in the U.S. to prevent heat deaths and illnesses in California; and recent COVID19 protections for agricultural workers. The UFW is a leader in the national movement for immigration reform.”
U.S. union membership in agriculture and related industries remains very low at 3.1 percent as of the end of 2021 for all the reasons already discussed. It motivates labor unions to increase their unionization efforts in the food & agriculture industry.
A bill in the U.S. Senate still under discussion, called The Farm workforce Modernization Act, was first proposed in 2019. Its intent is to streamline the citizenship process and the H-2A visa program. The bill continues to experience roadblocks in the Senate, and farmworkers anticipate the provisions could increase immigration enforcement and give employers more authority over immigrants.
Sonia Singh, with the Food Chain Workers Alliance, points to what she considers a harmful narrative used to push the bill, which is that it will mitigate labor shortages and lower food costs by increasing legal immigration. This narrative is pushed across media outlets to influence public opinion, similar to a union’s corporate campaign. According to Edgar Franks with Familias Unidas por la Justicia, farm output is already increasing, and food prices are rising due to climate change causing crop damage and not due to a labor shortage. Franks claims “big business, price gouging, and corporate greed” are culprits.” The groups supporting undocumented immigrants say the bill will set back farmworker rights for generations, presumably because undocumented workers will lose their jobs.
Immigrants are a critical labor force in the food and agriculture industry, especially during this period of labor shortages. Some of the workers are undocumented, and the American Immigration Council’s research director, Andrew Lim, says the visa programs don’t meet the industry needs of non-seasonal sectors, like meat and dairy. He recommends that the U.S. government provide a path to citizenship for undocumented farmworkers and expand visa programs.
When discussing labor relations in the food & agriculture industry, it’s necessary to understand the influence of agricultural workers’ non-employee status per the NLRA and the high number of employed undocumented workers. Though they aren’t protected by the NLRA and employers don’t have to recognize them, undocumented workers can organize.
Cesar Chavez co-founded the National Farmworkers Association in 1962, which merged with the Agricultural Workers Organizing Committee to become today’s powerful United Farm Workers of America (UFW). The UFW strategies include strikes and leading consumer boycotts of farm products. The 1970 boycott of grapes was highly successful and forced farmers to negotiate with the organizers. The USDA has joined farmers fighting for equality by establishing the Equity Commission, which former FW President Arturo Rodriguez co-chairs. The USDA is also developing a rule that will enable the agency to leverage its purchasing power to increase worker protections. Contractors will have to certify that they are adhering to 16 federal labor laws and executive orders to safeguard farm workers. In effect, federal contractors are required to report evidence of compliance, turning them into the eyes and ears of the government. There is the possibility that other agencies will follow suit, which will have enormous implications for employers.
The pro-union federal government is working through its agencies to enable non-employee agricultural workers to function as an organized group even if they can’t be formally protected under the NLRA. For example, the Department of Labor established a new workers’ rights policy for all immigrant workers involved in worksite labor disputes. The DOL provides guidance on seeking the agency’s support in labor disputes filed with the Department of Homeland Security.
Even the NLRB is getting involved in the status of undocumented immigrants. Though in the construction industry, there is an example that demonstrates the NLRB’s willingness to influence labor laws in areas that are technically not theirs. For example, immigrants were not paid a week’s wages after working on a commercial apartment building. The employer made threats against the workers, so a community organization for low-wage immigrant construction workers called the Workers Defense Project filed a request for deferred action and work authorization with the NLRB to get their help pressuring the Department of Homeland Security to address the situation.
NLRB General Counsel Jennifer Abruzzo wrote, “Workers’ labor rights should not be chilled by the fear of employer retaliation, including through attempts to trigger immigration or other law enforcement actions against workers asserting their labor rights. Employers evading labor laws regularly weaponize immigration to silence and intimidate their employees by retaliating against them through the possibility of immigration or other law enforcement actions.”
Sean Goldhammer, the director of employment and legal services at the Workers Defense Project, said, “The avenues for protection through the Department of Labor and the National Labor Relations Act are available to everybody, but they’re not extremely effective for undocumented workers in low-wage industries where employers take advantage of their immigration status to further push down the standards around workplace safety and pay and threaten to call ICE if workers assert their rights,” Goldhammer said. “But we are finally getting to a point where DHS may not just take a step back, but actually help affirmatively protect workers who are defending their labor rights.”
As Prism, a journal focused on social justice, wrote. “For decades, the labor movement has treated undocumented workers as “unorganizable.” Now, these workers are doing some of the most innovative labor organizing in the U.S.”
Labor unions have enormous opportunities to grow their membership in the food & agriculture industry. It’s a changing industry with fewer small family farms and more large corporate farms.
There are so many issues the unions can assume for their campaigns. Some of the more common ones include:
There is a mix of labor unions and organizations striving to help food and agricultural workers address workplace issues and employ political advocacy.
Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM) – The union represents approximately 74,000 workers in the baking, confectionery, tobacco, and grain milling sectors.
Teamsters – The Teamsters have a food processing division with members who are food production line workers and equipment operations.
United Food and Commercial Workers (UFCW) – Half of UFCW’s food processing members work for the top ten food processing employers and process approximately 70 percent of pork and beef processed in the U.S.
United Farm Workers (UFW) – An influential union, it’s the largest farm workers’ union. The UFW contract agreements protect thousands of vegetable, berry, winery, tomato, and dairy workers in California, Oregon, and Washington State. This union is highly activist, which reflects its roots discussed later.
WeCount – WeCount is an example of a membership-led organization of low-wage immigrant workers and families in South Florida. Groups like this exist around the country in support of immigrant workers. WeCount is very active and has won a countywide wage theft ordinance, is fighting to win heat stress protections, and leading campaigns to end ICE detainer policies.
Coalition of Immokalee Workers (CIW) - This worker-based human rights organization pioneered the design and development of the Worker-driven Social Responsibility (WSR) paradigm, a worker-led, market-enforced approach to protecting human rights in corporate supply chains. The first program was the Fair Food Program, a partnership among farm workers, Florida tomato growers, and retail buyers. The partnership terms include protecting workers’ human rights, increasing wages, and providing more stable work.
The Fair Food Program ensures that migrant workers are directly involved in enforcing, monitoring, and designing workplace programs that provide protections through legally binding contracts among workers, tomato growers, and retail buyers that, if violated, can result in the program suspending growers and thus denying access to buyers. It is a program for giving employees a collective voice.
Worker centers – Venceremos is an example of worker centers that support immigrants. This worker-based organization supports poultry workers and belongs to the Food chain Workers Alliance, a coalition of 30 worker-based organizations representing 375,000 food workers. Venceremos is adopting the Worker-driven Social Responsibility model developed by the Coalition of Immokalee Workers.
Blue Ribbon Commission on Protections for Immigrant Workers (BRC) – The BRC is composed of workers, and the members of the immigrant worker organization are focused on ensuring the Department of Homeland Security (DHS) commitments to respect worker rights are fulfilled. One of the principles advocated is the deprioritization of immigration enforcement and the prioritization of labor enforcement because the DOL is only 1.4 percent of the DHS budget. Some grievances include wages earned but not paid, an end to the chilling effect of ICE raids, and giving deferred action status (moratorium on enforcement actions) to immigrant workers who respond during disasters to prevent labor abuse.
As an employer in the food and agriculture industry, you are likely experiencing pressure from various labor unions and worker support organizations. It’s a challenging situation for leadership with no easy solutions.
The food and agriculture industry labor unions continue to rely on corporate campaigns as a strong organizing tactic. A corporate campaign is a type of union campaign in which pressure is applied in any way possible to convince an employer to give in to union demands. The union or any organized group attacks the employer through the media, operational disruptions, legal action, filing ULPs with the NLRB, filing complaints with OSHA and the DOL, salting, starting false movements that claim things like sexual harassment, community pressure, and so on. The idea is that the campaign costs the employer so much money and time that it gives in to the union.
In a corporate campaign, unions go widely public to tarnish the company’s image. According to Erik Loomis, a labor expert and University of Rhode Island professor, the “ultimate leverage” for union workers is the ability to create negative publicity for the company through strikes. The union wants to make the company look like its “union busting” to encourage consumer boycotts of products. The Coalition of Immokalee Workers’ Fair Food Program mentioned earlier says a win for participating retailers in that they “receive a system that protects their brands from the reputational risks of supply chain labor abuses by eliminating those abuses.” Attacking a company’s reputation can be an effective union strategy.
An example of a corporate campaign is the campaign that FLOC (Farm Labor Organizing Committee), an affiliate of the AFL-CIO, conducted against the RJ Reynolds company. RJ Reynolds is a global tobacco company. FLOC has called on Reynolds American to meet with farmworker representatives and sign a FLOC agreement to guarantee all farm workers the right to freedom of association. It took six years for the farmworkers and Reynolds representatives to meet, but no agreement was reached.
In 2018, FLOC called for a national boycott of Reynold’s e-cigarette brand VUSE. Reynolds does not directly employ tobacco farm workers. It contracts with tobacco growers, and the standards established with the growers affect farmworkers living and working conditions. The farmworkers want a voice through FLOC. FLOC is calling on convenience stores to stop selling VUSE until Reynolds gives the farm workers a voice and a means for negotiating better living and working conditions. FLOC says undocumented workers in the field are denied the most basic labor rights and face racism, harassment, poverty, debt, exposure to pesticides, long hours, limited access to health care, and denial of labor and human rights protections.
Of course, many federally recognized employees with NLRA protections belong to labor unions. The pandemic led to significant labor activity in the food and agriculture industry as it did in other industries like restaurants and tech.
Some of the 2021 and 2022 strikes involving big food companies include the following.
Some employee complaints were directly related to the pandemic, like hazard pay and bonuses.
Bryant Simon, labor scholar and history professor at Temple University, says that social media makes it possible to make the public more aware of the strike and working conditions. At Mondelēz, the union called for a boycott of Nabisco snacks like Oreos and Wheat Thins and used social media during the strikes to upload photos of unsold Oreos and Chips Ahoy! cookies at grocery stores. However, a complication in the food manufacturing industry is that consumers aren’t always willing to pay higher food prices to cover higher wages. As food prices rose due to inflation, it’s even more challenging to convince the public that increasing wage and benefits costs is justified.
You should monitor social media for signs of union activity because social media is becoming a communication tool used more frequently for union organizing and organizing protests and walkouts.
IRI Consultants offers labor relations readiness leadership training that provides a strong foundation in labor law and employee rights and teaches managers how to discuss union organizing in real-world settings. Our expertise includes industry executives and other professionals who train managers and supervisors on labor law, labor communications, best practices, and recognizing the early warning signs of union organizing. We’ve helped some of the nation’s largest corporations avoid new unions while containing their existing bargaining units.
Over the last 20 years, IRI has organized public affairs campaigns for dozens of agricultural organizations, managed multiple trade agreements and handled complex legislative issues for members of Congress regarding the world of food and farm politics. We’ve worked on-site with some of the nation’s largest food manufacturers and helped them navigate the world of employee relations and engagement.
Based on the industry’s labor union activity, it’s important always to be prepared for potential unionizing. The labor unions, immigrant support organizations, and programs will place increasing pressure on food and agriculture industry operations to meet expectations and on legislators to change employment laws to bring immigrants into employee status, whether or not they are on a path to citizenship. You can strive to reduce union bargaining units over time if you have already unionized and avoid unionizing if you are still a non-union company. It always comes down to developing positive employee relations, even when employee-management exists.
Walter Orechwa, Director, Digital Workplace Solutions at IRI Consultants, offers suggestions for preparing for union organizing, even if there are no signs of union organizing.
It’s also necessary to monitor labor union websites and social media to detect union organizing efforts and planned tactics.
Considering the specific employee issues in the food and agriculture industry, you can take some specific steps. Leadership training in change management is crucial because the food and agriculture industry is entering a period of transformation.
A workforce that has a significant number of undocumented workers working alongside employees may add management challenges. Still, the foundational principle is that human rights belong to all workers without regard for citizenship status. Contact IRI Consultants for assistance with helping your leaders sort through labor relations issues and develop a path forward.
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