Handling farm unionization
Farmers need to handle their laborers unionizing in a way that’s both respectful and legal.
Timothy Connick, chair of the New York State Public Employment Relations Board, led “Farm Laborers’ Fair Labor Practices Act Development,” a session at Cornell Agricultural Workforce Development’s recent Labor Roadshow on how farmers should handle unionization among workers.
“This area is in a state of flux,” Connick said. “As of now, that’s where we are. Unionization hasn’t been spreading like wildfire in New York. If the parties can’t agree, it comes before an arbitrator.”
So far, only four cases have done so in New York and there have been 10 separate court actions filed challenging various aspects of the law and rulings by the Public Employment Relations Board (PERB).
“There were arguments that H-2A workers were covered by the Farm Laborers’ Fair Labor Practices Act,” Connick said. “They are.”
He referenced the case of United Farm Workers of America & Porpiglia Farms Inc., 57 PERB 3408 (2024) as pertinent to the issue, along with several others.
Fraudulent cards are another prominent issue currently.
“What makes a card fraudulent?” Connick posed. “We have found consistent with case law in the past if it’s clear on the face and in the person’s own language, it’s not fraudulent – if the dues authorization card is clear on its face.”
If employees allege the presence of an unfair labor practice, and if the allegation were proven true and that would affect employees’ ability to choose whether or not they want representation, “if there’s threats or intimidation, we’re not going to have a fair election,” Connnick said.
He added that the PERB has issued only one unfair labor determination, along with a few cases of decertification.
Unions receive a one-year timeframe for bargaining.
“We proposed revised rules mid-November and a comment period expiring January 2,” Connick said.
He noted as a pending rule: If an employer does not agree that it is at least 50% of peak employees, it must provide information that relies upon disputing the issue, including but not limited to pay and time records for the prior years and any other information that supports its position.
“We want a representative group of employees,” Connick explained. Fifty seasonal workers won’t decide matters for the 10 year-round employees, for example.
Connick said that oftentimes, employers have sway over employees, but they should not have undue coercive control over their employees’ responses to labor dispute issues.
Another pending rule change is that petitions could be filed by employees or groups of employees or any individual or labor organization acting on their behalf.
“In New York, the parties themselves litigate before the board,” Connick said.
This action must be supported by 30% of unit employees or more and filed when the number of laborers is not less than 50% of the peak employment for the current calendar year.
Connick added that another pending rule is that “a change will not specifically require a clear and concise statement, preferably with numbered paragraphs of the facts alleging the unfair labor practice and a summary of alleged subdivision claimed to be visited.”
Although many farmers may think that decertifying a union is a good idea, Connick warned against it. He further clarified that because unionization can take place does not necessarily mean it has to take place when workers are on the farm, such as in the case of H2-A workers.
“If the union recognizes the leader of the organization, it doesn’t matter where the employees are,” Connick said.
