Labor professionals sign letter opposing PERB’s proposed rule that fails to address farmworker union certification issues
45 signatures were collected in support of the opposition. Since the passage of the Farmworker Fair Labor Standards Act in 2019, organizers and farmworkers have contended with a lack of infrastructure within PERB to handle the certification of farmworker unions and to investigate unfair labor practice complaints. PERB, the Public Employees Relations Bureau, is the organization charged with enforcing the Farmworkers Fair Labor Practices Act.
Unlike other industries, where labor relations are governed under the National Labor Relations Act, farming was excluded from those federal protections and therefore the National Labor relations Board, the agency charged with enforcing the NLRA, has no jurisdiction over farmworkers’ unions.
Thus, the Farmworkers Fair Labor Practices Act clearly demands that PERB allocates a sufficient budget for enforcing the new law. The following is the letter that was sent to PERB on March 4th and signed by 45 academics and other labor professionals across New York State.
The undersigned labor scholars and academics from multiple disciplines oppose the proposed rules drafted by the New York State Public Employment Relations Board (PERB) under the New York State Employment Relations Act, as amended in 2019 by the Farm Laborers Fair Labor Practices Act (FLPA).
When New York State enacted the State Labor Relations Act in 1937 to grant workers the right to organize and to bargain collectively it excluded farmworkers and domestic workers from statutory protections. The vast majority of farmworkers are people of color and immigrants. Their exclusion from labor protections rendered them second-class workers in New York.
After decades of protests, lobbying, and litigation, a New York appellate court ruled in 2019 that the exclusion of farmworkers from state collective bargaining protections violated the New York State Constitution provides that all workers “have the right to organize and to bargain collectively through representatives of their own choosing.” While unstated, this landmark ruling is equally applicable to the still existing statutory exclusion of domestic workers, who are primarily women.
Following the ruling, the Legislature passed FLPA which extended statutory collective bargaining rights to farmworkers in New York. During negotiations over FLPA, the bill was amended to prohibit farm workers from striking in exchange for an expeditious union certification process and a clear prohibition against employer anti-union conduct. The new law came into effect in January 2020, just prior to the onset of the COVID-19 pandemic.
In January, PERB announced proposed new rules that would apply to farmworker organizing and unfair labor practices. In our judgment, PERB’s proposed rules are deficient as they do not address the needs of New York farmworkers, nor reflect the spirit of the law. PERB must adopt procedures that do not discourage or delay union certifications, prioritize farmworker cases and needs, and recognize that Taylor Law processes for public workers are not appropriate for these vulnerable private sector employees. The proposed rules should be withdrawn and substantially changed.
Below are some particularly egregious aspects of the proposed rules:
Farm Worker Cases Must Be Handled in an Expeditious Manner
It is well known that delay is a central component of employers’ union avoidance strategies. Delay gives an employer the opportunity to use legal and illegal means to stop an organizing campaign.
Labor history demonstrates that the mere existence of laws against retaliation does not stop employers from using their power to terminate, discipline, and threaten workers for seeking to unionize and improve their working conditions. Employers know that the firing of a key union supporter or related threats deters other workers from asserting their rights.
Despite the role delay plays in employer anti-union campaigns, PERB’s proposed rules do not require expedited treatment of farmworker cases, rather, they give farm employers many built-in opportunities to delay both union formation and the adjudication of unfair labor practices. These include unnecessary conferences and hearings and inevitable adjournments. Statutory labor rights for farmworkers and prohibitions against farmers from discouraging union activities mean very little if it takes PERB months to issue a certification or determine a charge. Such delays are unconscionable because of the legal shackles placed on farmworkers from striking or even engaging in slowdowns.
The delays are also grievous considering that the majority of New York farmworkers are immigrants who experience an extreme power imbalance with their employers. In short, their fear of retaliation is more acute than for workers in other industries. Even those who have signed union cards may give in to employer pressure and renounce union activity out of fear. The longer they must wait for union certification, the more likely this becomes. The fear is exacerbated by the fact that for many New York farmworkers, the loss of a job is also the loss of their home. PERB procedures must not incentivize employers to engage in intimidation, by continued unnecessary agency delays in issuing union certifications and determining unfair labor practices cases.
In 2014, the National Labor Relations Board adopted new representation procedures to eliminate administrative delays that employers had frequently used to defeat organizing campaigns. The NLRB changes included expedited procedures for representation cases. It is disconcerting that PERB’s proposed rules do not include similar procedures to ensure that farmworker, and other private sector worker, cases are accorded the highest agency priority.
Farm Worker Cases and Issues Must Be Prioritized
PERB’s primary mission is the enforcement of New York’s Taylor Law. The agency and its staff have extensive experience handling disputes between government workers and government employers. They have very little experience with New York’s private sector law or the farmworker population that is primarily foreign-born with limited English skills.
The proposed rules provide us with no confidence that PERB will process farmworker representation and unfair labor practice cases with appropriate expediency. Instead, farmworker cases are likely to join the agency’s well-known backlog. We must emphasize that we do not blame PERB’s leadership and staff for the backlog because we know that state policymakers have chosen not to adequately fund the agency.
Moreover, from the proposed rules, it does not appear that PERB plans to provide needed remote bilingual services and assistance to farmworkers. Instead, the rules envision farmworkers and their representatives interfacing with PERB via snail mail and long trips to agency offices. Such a vision is blind to the fact that workers living in employer-provided housing are likely to have their mail monitored by their employers, and that farmworkers face challenges traveling and getting time off work (for which they would not be paid).
FLPA represents the largest increase in state private-sector collective bargaining rights in over 50 years. PERB must prioritize farmworker cases and create processes that carefully attend to their specific access needs.
Farm Worker Cases Should Not Be Determined Under the Taylor Law or its Processes
The proposed rules seek to apply existing PERB procedures under the Taylor Law to farmworker cases. Under those public worker processes, filings are strictly scrutinized and dismissed or delayed for even minor technical errors. Farmworkers with limited resources, ability to travel, and English proficiency will be required to receive and respond to mailed notices that set forth hyper-technical reasons for why their cases are not moving forward. Instead of a timely process that encourages collective bargaining, the proposed rules are designed to create bureaucratic procedural hurdles that will discourage farmworker unionization and the assertion of labor rights.
In summary, the proposed rules will constitute a rollback on hard-earned labor rights for farmworkers under the New York State Constitution and state law. Unless substantially modified, the rights of farmworkers will be deprived by these procedural rules. We urge PERB to rescind the proposed rules and promulgate new rules to require that private-sector representation and unfair labor practice charges be processed in an expedited manner.