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Basic Guide to the

National Labor Relations Act

General Principles of Law Under the Statute and Procedures of the National Labor Relations Board

This is a revised edition of a pamphlet originally issued in 1962. It provides a basic framework for a better understanding of the National Labor Relations Act and its administration.

A special chart that arranges systematically the types of cases in which an employer or a labor organization may be involved under the Act, including both unfair labor practice cases and representation election proceedings, appears in the booklet.

Prepared in the Office of the General Counsel NATIONAL LABOR RELATIONS BOARD

U.S. GOVERNMENT PRINTING OFFICE WASHINGTON. . 1997 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402

Table of Contents

Summary of the Act.........................................................................................................1–1 Purpose of the Act .................................................................................................................................................................. 1 What the Act provides............................................................................................................................................................ 1 How the Act is enforced......................................................................................................................................................... 1 How this material is organized .............................................................................................................................................. 1

The Rights of Employees ..........................................................................................2–5 The Section 7 Rights, ............................................................................................................................... 2

Examples of Section 7 rights .............................................................................................................. 2 Union Security.......................................................................................................................................... 2

Union-security agreements ................................................................................................................. 2 Requirements for union-security agreements ..................................................................................... 2 Prehire agreements in the construction industry ................................................................................. 2

The Right to Strike .................................................................................................................................. 3 Lawful and unlawful strikes ............................................................................................................... 3 Strikes for a lawful object ................................................................................................................... 4 Economic strikers defined .................................................................................................................. 4 Unfair labor practice strikers defined ................................................................................................. 4 Strikes unlawful because of purpose................................................................................................... 4 Strikes unlawful because of timing—Effect of no-strike contract ...................................................... 4 Same—Strikes at end of contract period ............................................................................................ 5 Strikes unlawful because of misconduct of strikers............................................................................ 5

The Right to Picket .................................................................................................................................. 5

Collective Bargaining and Representation of Employees .....................................6–13 Collective Bargaining............................................................................................................................... 6

Duty to bargain imposed on both employer and union ....................................................................... 6 Bargaining steps to end or change a contact ....................................................................................... 6 When the bargaining steps are not required........................................................................................ 6

The Employee Representative................................................................................................................. 7 What is an appropriate bargaining unit ............................................................................................... 7 How the appropriateness of a unit is determined ................................................................................ 7 Who can or cannot be included in a unit............................................................................................. 7 Duties of bargaining representative and employer.............................................................................. 8

How a Bargaining Representative Is Selected ....................................................................................... 8 Petition for certification of representatives ......................................................................................... 8 Petition for decertification election..................................................................................................... 8 Union-security deauthorization........................................................................................................... 8 Purpose of investigation and hearing .................................................................................................. 8 Jurisdiction to conduct an election...................................................................................................... 9 Expedited elections under Section 8(b)(7)(C) .................................................................................... 9 Showing of interest required............................................................................................................... 9 Existence of question of representation .............................................................................................. 9 Who can qualify as bargaining representative .................................................................................... 9

Bars to Election ........................................................................................................................................ 10 Existing collective-bargaining contract .............................................................................................. 10 Time provisions .................................................................................................................................. 10 When a petition can be filed if there is an existing contract ............................................................... 10 Effect of certification .......................................................................................................................... 10 Effect of prior election........................................................................................................................ 11 When a petition can be filed if there has been a prior election ........................................................... 11

The Representation Election ................................................................................................................... 11

Consent-election agreements .............................................................................................................. 11 Who determines election matters........................................................................................................ 11 Who may vote in a representation election ......................................................................................... 11 When strikers may be allowed to vote ................................................................................................ 12 When elections are held...................................................................................................................... 12 Conduct of elections ........................................................................................................................... 12

Unfair Labor Practices of Employers .....................................................................14–22 Section 8(a)(1)—Interference with Section 7 Rights ............................................................................. 14

Examples of violations of Section 8(a)(1) .......................................................................................... 14 Section 8(a)(2)—Domination or Illegal Assistance and Support of a Labor

Organization.......................................................................................................................................... 14 Domination ......................................................................................................................................... 14 Illegal assistance and support ............................................................................................................. 14 Examples of violations of Section 8 (a) (2) ........................................................................................ 15 Remedy in cases of domination differs from that in cases of illegal assistance

and support ...................................................................................................................................... 15 Section 8(a)(3)—Discrimination Against Employees ............................................................................ 15

The union-security exception to Section 8(a)(3)................................................................................. 15 The Act does not limit employer’s right to discharge for economic reasons...................................... 16 Examples of violations of Section 8(a)(3) .......................................................................................... 16

Section 8(a)(4)—Discrimination for NLRB Activity............................................................................. 16 Examples of violations of Section 8 (a) (4) ........................................................................................ 17

Section 8(a)(5)—Refusal to Bargain in Good Faith .............................................................................. 17 Types of Cases .................................................................................................................................... 18–19

Required subjects of bargaining ......................................................................................................... 20 Duty to bargain defined ...................................................................................................................... 20 What constitutes a violation of Section 8 (a) (5) ................................................................................ 20 Duty to meet and confer ..................................................................................................................... 20 Duty to supply information................................................................................................................. 20 Multiemployer bargaining .................................................................................................................. 20 Duty to refrain from unilateral action ................................................................................................. 20 Duty of successor employers .............................................................................................................. 21 Examples of violations of Section 8 (a) (5) ........................................................................................ 21

Section 8(e)—Entering a Hot Cargo Agreement ................................................................................... 21 What is prohibited............................................................................................................................... 21 Exceptions for construction and garment industries ........................................................................... 21

Unfair Labor Practices of Labor Organizations....................................................23–32 Section 8(b)(1)(A)—Restraint and Coercion of Employees.................................................................. 23

Section 8(b)(1)(A) compared with Section 8(a)(1)............................................................................. 23 What violates Section 8(b)(1)(A) ....................................................................................................... 23 Examples of violations of Section 8(b)(1)(A)..................................................................................... 23

Section 8(b)(1)(B)—Restraint and Coercion of Employers .................................................................. 24 Examples of violations of Section 8(b)(1)(B) ............................................................................................ 24 Section 8(b)(2)—Causing or Attempting to Cause Discrimination ..................................................... 24

What violates Section 8(b)(2) ............................................................................................................. 25 Illegal hiring hall agreements and practices........................................................................................ 25 Illegal union-security agreements ....................................................................................................... 25 Examples of violations of Section 8(b)(2) .......................................................................................... 25

Section 8(b)(3)—Refusal to Bargain in Good Faith .............................................................................. 26 Examples of violations of Section 8(b)(3) .......................................................................................... 26

Section 8(b)(4)—Prohibited Strikes and Boycotts................................................................................. 27 Proscribed action: Inducing or encouraging a strike work stoppage, or boycott ................................ 27 Proscribed action: Threats, coercion, and restraint ............................................................................. 27 Subparagraph (A)—Prohibited object: Compelling membership in an employer

or labor organization or compelling a hot cargo agreement............................................................. 28 Examples of violations of Section 8(b)(4)(A)..................................................................................... 28 Subparagraph (B)—Prohibited object: Compelling recognition of an uncertified

union ................................................................................................................................................ 28 Examples of violations of Section 8(b)(4)(B)..................................................................................... 28 When an employer is not protected from secondary strikes or boycotts............................................. 28 When a union may picket an employer who shares a site with another employer.............................. 29 Picketing contractors’ gates ................................................................................................................ 29 Subparagraph (B)—Prohibited object: Compelling recognition of an uncertified

union ................................................................................................................................................ 30 Subparagraph (C)—Prohibited object: Compelling recognition of a union if

another union has been certified ...................................................................................................... 30 Subparagraph (D)—Prohibited object: Compelling assignment of certain work to

certain employees ............................................................................................................................ 30 Publicity such as handbilling allowed by Section 8(b)(4) .................................................................. 30

Section 8(b)(5)—Excessive or Discriminatory Membership Fees........................................................ 30 Examples of violations of Section 8(b) (5) ......................................................................................... 30

Section 8(b)(6)—”Featherbedding”........................................................................................................ 31 Section 8(b)(7)—0rganizational and Recognitionai Picketing by Noncertifled

Unions .................................................................................................................................................... 31 Publicity picketing .............................................................................................................................. 31 Expedited elections under Section 8(b)(7) (C) ................................................................................... 31 Examples of violations of Section 8(b) (7) ......................................................................................... 32

Section 8(e)—Entering a Hot Cargo Agreement ................................................................................... 32 Section 8(g)—Striking or Picketing a Health Care Institution Without Notice ................................. 32

How the Act Is Enforced ..........................................................................................33–39 Organization of the NLRB ...................................................................................................................... 33

The Board-The General Counsel-The Regional Offices..................................................................... 33 Functions of the NLRB....................................................................................................................... 33

Authority of the NLRB ............................................................................................................................ 33 Enterprises whose operations affect commerce .................................................................................. 33 What is commerce .............................................................................................................................. 33 When the operations of an employer affect commerce....................................................................... 33 The Board does not act in all cases affecting commerce .................................................................... 34 NLRB jurisdictional standards............................................................................................................ 34 The Act does not cover certain individuals......................................................................................... 35 Supervisor defined .............................................................................................................................. 36 The Act does not cover certain employers.......................................................................................... 36

NLRB Procedures .................................................................................................................................... 36 Procedure in representation cases ....................................................................................................... 36 Procedure in unfair labor practice cases ............................................................................................. 37 The 6-month rule limiting issuance of complaint ............................................................................... 37 Appeal to the General Counsel if complaint is not issued .................................................................. 37

Powers of the NLRB ................................................................................................................................ 37 Powers concerning investigations....................................................................................................... 37 The Act is remedial, not criminal ....................................................................................................... 38 Affirmative action may be ordered by the Board ............................................................................... 38 Examples of affirmative action directed to employers ....................................................................... 38 Examples of affirmative action directed to unions ............................................................................. 38

Special Proceedings in Certain Cases..................................................................................................... 38 Proceedings in jurisdictional disputes................................................................................................. 38 The investigation of certain charges must be given priority ............................................................... 39 Injunction proceedings under Section 10(1) ....................................................................................... 39 Injunctive relief may be sought in other cases .................................................................................... 39

Court Enforcement of Board Orders ..................................................................................................... 39

In the U.S. court of appeals................................................................................................................. 39 Review by the U.S. Supreme Court .................................................................................................... 39

Conclusion .................................................................................................................40 Supplements

Chart, “Types of Cases”........................................................................................................................ 18–19 List of Regional Directors and addresses of Regional Offices .................................................................. 41

Foreword The Regional Offices of the National Labor Relations Board have found that, more than six decades after its

enactment, there is still a lack of basic information about the National Labor Relations Act. Staff members have expressed a need for a simply stated explanation of the Act to which anyone could be referred for guidance. To meet this demand, the basic law under the Act has been set forth in this pamphlet in a nontechnical way so that those who may be affected by it can better understand what their rights and obligations are.

Any effort to state basic principles of law in a simple way is a challenging and unenviable task. This is especially true about labor law, a relatively complex field of law. Anyone reading this booklet must bear in mind several cautions.

First, it must be emphasized that the Office of the General Counsel does not issue advisory opinions and this material cannot be considered as an official statement of law. It represents the view of the Office of the General Counsel as of the date of publication only. It is important to note that the law changes and advances. In fact, it is the duty of the Agency to keep its decisions abreast of changing conditions, yet within the basic statute. Accordingly, with the passage of time no one can rely on these statements as absolute until and unless a check has been made to see whether the law may have been changed substantially or specifically.

Furthermore, these are broad general principles only and countless subprinciples and detailed rules are not included. Only by evaluation of specific fact situations in the light of current principles and with the aid of expert advice would a person be in a position to know definitely where the proposed conduct may fit under the statute. No basic primer or text can constitute legal advice in particular fact situations. This effort to improve basic education about the statute should not be considered as such. Many areas of the statute remain untested. Legal advisers and other experts can find the total body of “Board law” reported in other Agency publications.

One other caution: This material does not deal with questions arising under other labor laws, but only with the National Labor Relations Act. Laws administered by other Government agencies, such as the Labor-Management Reporting and Disclosure Act of 1959, the Employee Retirement Income Security Act, the Occupational Safety and Health Act, the Railway Labor Act, the Fair Labor Standards, Walsh-Healey and Davis-Bacon Acts, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, the Federal Mine Safety and Health Act, and the Veterans’ Preference Act, are not treated herein.

Lastly, this material does not reflect the view of the National Labor Relations Board as the adjudicating agency that in the end will decide each case as it comes before it.

It is hoped that with this cautionary note this booklet may be helpful to those in need of a better basic understanding of the National Labor Relations Act.

Summary of the Act Purpose of the Act. It is in the national interest of the United States to maintain full production

in its economy. Industrial strife among employees, employers, and labor organizations interferes with full production and is contrary to our national interest. Experience has shown that labor disputes can be lessened if the parties involved recognize the legitimate rights of each in their relations with one another. To establish these rights under law, Congress enacted the National Labor Relations Act. Its purpose is to define and protect the rights of employees and employers, to encourage collective bargaining, and to eliminate certain practices on the part of labor and management that are harmful to the general welfare.

What the Act provides. The National Labor Relations Act states and defines the rights of employees to organize and to bargain collectively with their employers through representatives of their own choosing or not to do so. To ensure that employees can freely choose their own representatives for the purpose of collective bargaining, or choose not to be represented, the Act establishes a procedure by which they can exercise their choice at a secret-ballot election conducted by the National Labor Relations Board. Further, to protect the rights of employees and employers, and to prevent labor disputes that would adversely affect the rights of the public, Congress has defined certain practices of employers and unions as unfair labor practices.

How the Act is enforced. The law is administered and enforced principally by the National Labor Relations Board and the General Counsel acting through 52 regional and other field offices located in major cities in various sections of the country. The General Counsel and the

staff of the Regional Offices investigate and prosecute unfair labor practice cases and conduct elections to determine employee representatives. The five-member Board decides cases involving charges of unfair labor practices and determines representation election questions that come to it from the Regional Offices.

How this material is organized. The rights of employees, including the rights to self- organization and collective bargaining that are protected by Section 7 of the Act, are presented first in this guide. The Act’s provisions concerning the requirements for union-security agreements are covered in the same section, which also includes a discussion of the right to strike and the right to picket. The obligations of collective bargaining and the Act’s provisions for the selection of employee representatives are treated in the next section. Unfair labor practices of employers and of labor organizations are then presented in separate sections. The final section, entitled “How the Act Is Enforced,” sets forth the organization of the NLRB; its authority and limitations; its procedures and powers in representation matters, in unfair labor practice cases, and in certain special proceedings under the Act; and the Act’s provisions concerning enforcement of the Board’s orders.

The Rights of Employees The Section 7 Rights. The rights of employees are set forth principally in Section 7 of the Act, which provides

as follows:

Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

Examples of Section 7 rights. Examples of the rights protected by this section are the following:

• Forming or attempting to form a union among the employees of a company. • Joining a union whether the union is recognized by the employer or not. • Assisting a union to organize the employees of an employer. • Going out on strike to secure better working conditions. • Refraining from activity on behalf of a union.

Union Security. The Act permits, under certain conditions, a union and an employer to make an agreement, called a union-security agreement, that requires employees to make certain payments to the union in order to retain their jobs. A union-security agreement cannot require that applicants for employment be members of the union in order to be hired, and such an agreement cannot require employees to join or maintain membership in the union in order to retain their jobs. Under a union-security agreement, individuals choosing to be dues-paying nonmembers may be required, as may employees who actually join the union, to pay full initiation fees and dues within a certain period of time (a “grace period”) after the collective-bargaining contract takes effect or after a new employee is hired. However, the most that can be required of nonmembers who inform the union that they object to the use of their payments for nonrepresentational purposes is that they pay their share of the union’s costs relating to representational activities (such as collective bargaining, contract administration, and grievance adjustment).

Union-security agreements. The grace period, after which the union-security agreement becomes effective, cannot be less than 30 days except in the building and construction industry. The Act allows a shorter grace period of 7 full days in the building and construction industry (Section 8(f). A union-security agreement that provides a shorter grace period than the law allows is invalid, and any employee discharged because he or she has not complied with such an agreement is entitled to reinstatement.

Requirements for union-security agreements. Under a union-security agreement, employees who have religious objections to becoming members of a union or to supporting a union financially may be exempt from paying union dues and initiation fees. These employees may, however, be required to make contributions to a nonreligious, nonlabor tax exempt organization instead of making payments to a union. Unions representing such employees may also charge them the reasonable cost of any grievances processed at the employees’ request.

Prehire agreements in the construction industry. For a union-security agreement to be valid, it must meet all the following requirements:

1. The union must not have been assisted or controlled by the employer (see Section 8(a)(2) under “Unfair Labor Practices of Employers” on pp. 14–15).

2. The union must be the majority representative of the employees in the appropriate collective-bargaining unit covered by such agreement when made.

3. The union’s authority to make such an agreement must not have been revoked within the previous 12 months by the employees in a Board election.

4. The agreement must provide for the appropriate grace period.

Section 8(f) of the Act allows an employer engaged primarily in the building and construction industry to sign a union-security agreement with a union without the union’s having been designated as the representative of its employees as otherwise required by the Act. The agreement can be made before the employer has hired any employees for a project and will apply

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to them when they are hired. As noted above, however, the union-security provisions of a collective-bargaining contract in the building and construction industry may become effective with respect to new employees after 7 full days. If the agreement is made while employees are on the job, it must allow existing employees the same 7-day grace period to comply. As with any other union-security agreement, the union involved must be free from employer assistance or control.

Collective-bargaining contracts in the building and construction industry can include, as stated in Section 8(f), the following additional provisions:

1. A requirement that the employer notify the union concerning job openings. 2. A provision that gives the union an opportunity to refer qualified applicants for such jobs. 3. Job qualification standards based on training or experience. 4. A provision for priority in hiring based on length of service with the employer, in the industry, or in the

particular geographic area. These four hiring provisions may lawfully be included in collective-bargaining contracts which cover employees

in other industries as well. Finally, pursuant to Section 14(b) of the Act, individual States may prohibit, and some States have prohibited,

certain forms of union-security agreements. The Right to Strike. Section 7 of the Act states in part, “Employees shall have the right. . . to engage in other

concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Strikes are included among the concerted activities protected for employees by this section. Section 13 also concerns the right to strike. It reads as follows:

Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right. It is clear from a reading of these two provisions that: the law not only guarantees the right of employees to

strike, but also places limitations and qualifications on the exercise of that right. See for example, restrictions on strikes in health care institutions, page 32.

Lawful and unlawful strikes. The lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers. The object, or objects, of a strike and whether the objects are lawful are matters that are not always easy to determine. Such issues often have to be decided by the National Labor Relations Board. The consequences can be severe to striking employees and struck employers, involving as they do questions of reinstatement and backpay.

It must be emphasized that the following is only a brief outline. A detailed analysis of the law concerning strikes, and application of the law to all the factual situations that can arise in connection with strikes, is beyond the scope of this material. Employees and employers who anticipate being involved in strike action should proceed cautiously and on the basis of competent advice.

Strikes for a lawful object. Employees who strike for a lawful object fall into two classes “economic strikers” and “unfair labor practice strikers.” Both classes continue as employees, but unfair labor practice strikers have greater rights of reinstatement to their jobs.

Economic strikers defined. If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. They retain their status as employees and cannot be discharged, but they can be replaced by their employer. If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers when the strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they, or their bargaining representative, have made an unconditional request for their reinstatement.

Unfair labor practice strikers defined. Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged.

If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers backpay starting at the time they should have been reinstated.

Strikes unlawful because of purpose. A strike may be unlawful because an object, or purpose, of the strike is unlawful. A strike in support of a union unfair labor practice, or one that would cause an employer to commit an unfair labor practice, may be a strike for an unlawful object. For example, it is an unfair labor practice for an employer to discharge an employee for failure to make certain lawful payments to the union when there is no union- security agreement in effect (Section 8(a)(3). A strike to compel an employer to do this would be a strike for an unlawful object and, therefore, an unlawful strike. Strikes of this nature will be discussed in connection with the various unfair labor practices in a later section of this guide.

Furthermore, Section 8(b)(4) of the Act prohibits strikes for certain objects even though the objects are not necessarily unlawful if achieved by other means. An example of this would be a strike to compel Employer A to cease doing business with Employer B. It is not unlawful for Employer A voluntarily to stop doing business with Employer B, nor is it unlawful for a union merely to request that it do so. It is, however, unlawful for the union to strike with an object of forcing the employer to do so. These points will be covered in more detail in the explanation of Section 8(b)(4). In any event, employees who participate in an unlawful strike may be discharged and are not entitled to reinstatement.

Strikes unlawful because of timing—Effect of no-strike contract. A strike that violates a no-strike provision of a contract is not protected by the Act, and the striking employees can be discharged or otherwise disciplined, unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. It should be noted that not all refusals to work are considered strikes and thus violations of no-strike provisions. A walkout because of conditions abnormally dangerous to health, such as a defective ventilation system in a spray-painting shop, has been held not to violate a no-strike provision.

Same—Strikes at end of contract period. Section 8(d) provides that when either party desires to terminate or change an existing contract, it must comply with certain conditions. If these requirements are not met, a strike to terminate or change a contract is unlawful and participating strikers lose their status as employees of the employer engaged in the labor dispute. If the strike was caused by the unfair labor practice of the employer, however, the strikers are classified as unfair labor practice strikers and their status is not affected by failure to follow the required procedure.

Strikes unlawful because of misconduct of strikers. Strikers who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and unfair labor practice strikers. Serious misconduct has been held to include, among other things, violence and threats of violence. The U.S. Supreme Court has ruled that a “sitdown” strike, when employees simply stay in the plant and refuse to work, thus depriving the owner of property, is not protected by the law. Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement are:

• Strikers physically blocking persons from entering or leaving a struck plant. • Strikers threatening violence against nonstriking employees. • Strikers attacking management representatives.

The Right to Picket. Likewise the right to picket is subject to limitations and qualifications. As with the right to strike, picketing can be prohibited because of its object or its timing, or misconduct on the picket line. In addition, Section 8(b)(7) declares it to be an unfair labor practice for a union to picket for certain objects whether the picketing accompanies a strike or not. This will be covered in more detail in the section on union unfair labor practices.

Collective Bargaining and Representation of Employees Collective bargaining is one of the keystones of the Act. Section 1 of the Act declares that the policy of the

United States is to be carried out “by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”

Collective bargaining. Collective bargaining is defined in the Act. Section 8(d) requires an employer and the representative of its employees to meet at reasonable times, to confer in good faith about certain matters, and to put into writing any agreement reached if requested by either party. The parties must confer in good faith with respect to wages, hours, and other terms or conditions of employment, the negotiation of an agreement, or any question arising under an agreement.

Duty to bargain imposed on both employer and union. These obligations are imposed equally on the employer and the representative of its employees. It is an unfair labor practice for either party to refuse to bargain collectively with the other. The obligation does not, however, compel either party to agree to a proposal by the other, nor does it require either party to make a concession to the other .

Section 8(d) provides further that when a collective-bargaining agreement is in effect no party to the contract shall end or change the contract unless the party wishing to end or change it takes the following steps:

Bargaining steps to end or change a contract. 1. The party must notify the other party to the contract in writing about the proposed termination or modification

60 days before the date on which the contract is scheduled to expire. If the contract is not scheduled to expire on any particular date, the notice in writing must be served 60 days before the time when it is proposed that the termination or modification take effect.

2. The party must offer to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed changes.

3. The party must, within 30 days after the notice to the party, notify the Federal Mediation and Conciliation Service of the existence of a dispute if no agreement has been reached by that time. Said party must also notify at the same time any State or Territorial mediation or conciliation agency in the State or Territory where the dispute occurred.

4. The party must continue in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract until 60 days after the notice to the other party was given or until the date the contract is scheduled to expire, whichever is later.

(In the case of a health care institution, the requirement in paragraphs 1 and 4 is 90 days, and in paragraph 3 is 60 days. In addition, there is a 30-day notice requirement to the agencies in paragraph 3 when a dispute arises in bargaining for an initial contract.)

When the bargaining steps are not required. The requirements of paragraphs 2, 3, and 4, above, cease to apply if the NLRB issues a certificate showing that the employees’ representative who is a party to the contract has been replaced by a different representative or has been voted out by the employees. Neither party is required to discuss or agree to any change of the provisions of the contract if the other party proposes that the change become effective before the provision could be reopened according to the terms of the contract.

As has been pointed out, any employee who engages in a strike within the notice period loses status as an employee of the struck employer. This loss of status ends, however, if and when that individual is reemployed by the same employer.

The Employee Representative. Section 9(a) provides that the employee representatives that have been “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining.”

What is an appropriate bargaining unit. A unit of employees is a group of two or more employees who share a community of interest and may reasonably be grouped together for purposes of collective bargaining. The determination of what is an appropriate unit for such purposes is, under the Act, left to the discretion of the NLRB. Section 9(b) states that the Board shall decide in each representation case whether, “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.”

This broad discretion is, however, limited by several other provisions of the Act. Section 9(b)(1) provides that the Board shall not approve as appropriate a unit that includes both professional and nonprofessional employees, unless a majority of the professional employees involved vote to be included in the mixed unit.

Section 9(b)(2) provides that the Board shall not hold a proposed craft unit to be inappropriate simply because a different unit was previously approved by the Board, unless a majority of the employees in the proposed craft unit vote against being represented separately.

Section 9(b)(3) prohibits the Board from including plant guards in the same unit with other employees. It also prohibits the Board from certifying a labor organization as the representative of a plant guard unit if the labor organization has members who are nonguard employees or if it is “affiliated directly or indirectly” with an organization that has members who are nonguard employees.

How the appropriateness of a unit is determined. Generally, the appropriateness of a bargaining unit is determined on the basis of a community of interest of the employees involved. Those who have the same or substantially similar interests concerning wages, hours, and working conditions are grouped together in a bargaining unit. In determining whether a proposed unit is appropriate, the following factors are also considered:

1. Any history of collective bargaining. 2. The desires of the employees concerned. 3. The extent to which the employees are organized. Section 9(c)(5) forbids the Board from giving this factor

controlling weight. Finally, with regard to units in the health care industry, the Board also is guided by Congress’ concern about

preventing disruptions in the delivery of health care services, and its directive to minimize the number of appropriate bargaining units.

Who can or cannot be included in a unit. A unit may cover the employees in one plant of an employer, or it may cover employees in two or more plants of the same employer. In some industries in which employers are grouped together in voluntary associations, a unit may include employees of two or more employers in any number of locations. It should be noted that a bargaining unit can include only persons who are “employees” within the meaning of the Act. The Act excludes certain individuals, such as agricultural laborers, independent contractors, supervisors, and persons in managerial positions, from the meaning of “employees.” None of these individuals can be included in a bargaining unit established by the Board. In addition, the Board, as a matter of policy, excludes from bargaining units employees who act in a confidential capacity to an employer’s labor relations officials.

Duties of bargaining representative and employer. Once an employee representative has been designated by a majority of the employees in an appropriate unit, the Act makes that representative the exclusive bargaining agent for all employees in the unit. As exclusive bargaining agent it has a duty to represent equally and fairly all employees in the unit without regard to their union membership or activities. Once a collective-bargaining representative has been designated or selected by its employees, it is illegal for an employer to bargain with individual employees, with a group of employees, or with another employee representative.

Section 9(a) provides that any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted without the intervention of the bargaining representative provided:

1. The adjustment is not inconsistent with the terms of any collective-bargaining agreement then in effect. 2. The bargaining representative has been given the opportunity to be present at such adjustment. How a Bargaining Representative is Selected. The Act requires that an employer bargain with the

representative selected by its employees. The most common method by which employees can select a bargaining representative is a secret-ballot representation election conducted by the Board.

Petition for certification of representatives. The NLRB can conduct such an election only when a petition has been filed requesting one. A petition for certification of representatives can be filed by an employee or a group of employees or any individual or labor organization acting on their behalf, or it can be filed by an employer. If filed by or on behalf of employees, the petition must be supported by a substantial number of employees who wish to be represented for collective bargaining and must state that their employer declines to recognize their representative. If

filed by an employer, the petition must allege that one or more individuals or organizations have made a claim for recognition as the exclusive representative of the same group of employees.

Petition for decertification election. The Act also contains a provision whereby employees or someone acting on their behalf can file a petition seeking an election to determine if the employees wish to retain the individual or labor organization currently acting as their bargaining representative, whether the representative has been certified or voluntarily recognized by the employer. This is called a decertification election.

Union-security deauthorization. Provision is also made for the Board to determine by secret ballot whether the employees covered by a union-security agreement desire to withdraw the authority of their representative to continue the agreement. This is called a union-security deauthorization election and can be brought about by the filing of a petition signed by 30 percent or more of the employees covered by the agreement.

If you will refer to the “Types of Cases” on pages 18 and 19, you may find it easier to understand the differences between the six types of petitions that can be filed under the Act.

Purpose of investigation and hearing. The same petition form is used for any kind of Board election. When the petition is filed, the NLRB must investigate the petition, hold a hearing if necessary, and direct an election if it finds that a question of representation exists. The purpose of the investigation is to determine, among other things, the following:

1. Whether the Board has jurisdiction to conduct an election. 2. Whether there is a sufficient showing of employee interest to justify an election. 3. Whether a question of representation exists. 4. Whether the election is sought in an appropriate unit of employees. 5. Whether the representative named in the petition is qualified. 6. Whether there are any barriers to an election in the form of existing contracts or prior elections. Jurisdiction to conduct an election. The jurisdiction of the NLRB to direct and conduct an election is limited to

those enterprises that affect commerce. (This is discussed in greater detail at pp. 33–36.) The other matters listed above will be discussed in turn.

Expedited elections under Section 8(b)(7)(C). First, however, It should be noted that Section 8(b)(7)(C) provides, among other things, that when a petition is filed within a reasonable period, not to exceed 30 days, after the commencement of recognitional or organizational picketing, the NLRB shall “forthwith” order an election and certify the results. This is so if the picketing is not within the protection of the second proviso to Section 8(b)(7)(C). When an election under Section (8)(b)(7)(C) is appropriate, neither a hearing nor a showing of interest is required, and the election is scheduled sooner than under the ordinary procedure.

Showing of interest required. Regarding the showing of interest, it is the policy to require that a petitioner requesting an election for either certification of representatives or decertification show that at least 30 percent of the employees favor an election. The Act also requires that a petition for a union-security deauthorization election be filed by 30 percent or more of the employees in the unit covered by the agreement for the NLRB to conduct an election for that purpose. The showing of interest must be exclusively by employees who are in the appropriate bargaining unit in which an election is sought.

Existence of question of representation. Section 9(c)(1) authorizes the NLRB to direct an election and certify the results thereof, provided the record shows that a question of representation exists. Petitions for certification of representatives present a question of representation if, among other things, they are based on a demand for recognition by the employee representative and a denial of recognition by the employer. The demand for recognition need not be made in any particular form; in fact, the filing of a petition by the representative itself is considered to be a demand for recognition. The NLRB has held that even a representative that is currently recognized by the employer can file a petition for certification and that such petition presents a question of representation provided the representative has not previously been certified.

A question of representation is also raised by a decertification petition that challenges the representative status of a bargaining agent previously certified or currently recognized by the employer. However, a decertification petition filed by a supervisor does not raise a valid question of representation and must be dismissed.

Who can qualify as bargaining representative. Section 2(4) of the Act provides that the employee representative for collective bargaining can be “any individual or labor organization.” A supervisor or any other management representative may not be an employee representative. It is NLRB policy to direct an election and to issue a certification unless the proposed bargaining agent fails to qualify as a bona fide representative of the employees. In determining a union’s qualifications as bargaining agent, it is the union’s willingness to represent the employees rather than its constitution and bylaws that is the controlling factor. The NLRB’s power to certify a labor organization as bargaining representative is limited by Section 9(b)(3) which prohibits certification of a union as the

representative of a unit of plant guards if the union “admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.”

Bars to Election—Existing collective-bargaining contract. The NLRB has established the policy of not directing an election among employees presently covered by a valid collective-bargaining agreement except in accordance with certain rules. These rules, followed in determining whether or not an existing collective-bargaining contract will bar an election, are called the NLRB contract bar rules. Not every contract will bar an election. Examples of contracts that would not bar an election are:

• The contract is not in writing, or is not signed. • The contract has not been ratified by the members or the union, if such is expressly required. • The contract does not contain substantial terms or conditions of employment sufficient to stabilize the

bargaining relationship. • The contract can be terminated by either party at any time for any reason. • The contract contains a clearly illegal union-security clause. • The bargaining unit is not appropriate. • The union that entered the contract with the employer is no longer in existence or is unable or unwilling to

represent the employees. • The contract discriminates between employees on racial grounds. • The contract covers union members only. • The contracting union is involved in a basic internal conflict at the highest levels with resulting

unstabilizing confusion about the identity of the union. • The employer’s operations have changed substantially since the contract was executed.

Time provisions. Under the NLRB rules a valid contract for a fixed period of 3 years or less will bar an election for the period covered by the contract. A contract for a fixed period of more than 3 years will bar an election sought by a contracting party during the life of the contract, but will act as a bar to an election sought by an outside party for only 3 years following its effective date. A contract of no fixed period will not act as a bar at all.

When a petition can be filed if there is an existing contract. If there is no existing contract, a petition can bring about an election if it is filed before the day a contract is signed. If the petition is filed on the same day the contract is signed, the contract bars an election, provided the contract is effective immediately or retroactively and the employer has not been informed at the time of execution that a petition has been filed. Once the contract becomes effective as a bar to an election, no petition will be accepted until near the end of the period during which the contract is effective as a bar. Petitions filed not more than 90 days but over 60 days before the end of the contract- bar period will be accepted and can bring about an election. These time periods for filing petitions involving health care institutions are 120 and 90 days, respectively. Of course, a petition can be filed after the contract expires. However, the last 60 days of the contract-bar period is called an “insulated” period. During this time the parties to the existing contract are free to negotiate a new contract or to agree to extend the old one. If they reach agreement in this period. petitions will not be accepted until 90 days before the end of the new contract-bar period.

Effect of certification. In addition to the contract-bar rules, the NLRB has established a rule that when a representative has been certified by the Board, the certification will ordinarily be binding for at least 1 year and a petition filed before the end of the certification year will be dismissed. In cases in which the certified representative and the employer enter a valid collective-bargaining contract during the year, the contract becomes controlling, and whether a petition for an election can be filed is determined by the Board’s contract-bar rules.

Effect of prior election. Section 9(c)(3) prohibits the holding of an election in any collective-bargaining unit or subdivision thereof in which a valid election has been held during the preceding 12-month period. A new election may be held, however, in a larger unit, but not in the same unit or subdivision in which the previous election was held. For example, if all the production and maintenance employees in Company A, including draftsmen in the company’s engineering office, are included in a collective-bargaining unit, an election among all the employees in the unit would bar another election among all the employees in the unit for 12 months. Similarly, an election among the draftsmen only would bar another election among the draftsmen for 12 months. However, an election among the draftsmen would not bar a later election during the 12-month period among all the production and maintenance employees including the draftsmen.

When a petition can be filed if there has been a prior election. It is the Board’s interpretation that Section 9(c)(3) prohibits only the holding of an election during the 12-month period, but does not prohibit the filing of a petition. Accordingly, the NLRB will accept a petition filed not more than 60 days before the end of the 12-month period. The election cannot be held, of course, until after the 12-month period. If an election is held and a representative

certified, that certification is binding for 1 year and a petition for another election in the same unit will be dismissed if it is filed during the 1-year period after the certification. If an election is held and no representative is certified, the election bars another election for 12 months. A petition for another election in the same unit can be filed not more than 60 days before the end of the 12-month period and the election can be held after the 12-month period expires.

The Representation Election. Section 9(c)(1) provides that if a question of representation exists, the NLRB must make its determination by means of a secret-ballot election. In a representation election employees are given a choice of one or more bargaining representatives or no representative at all. To be certified as the bargaining representative, an individual or a labor organization must receive a majority of the valid votes cast.

Consent-election agreements. An election may be held by agreement between the employer and the individual or labor organization claiming to represent the employees. In such an agreement the parties would state the time and place agreed on, the choices to be included on the ballot, and a method to determine who is eligible to vote. They would also authorize the NLRB Regional Director to conduct the election.

Who determines election matters. If the parties are unable to reach an agreement, the Act authorizes the NLRB to order an election after a hearing. The Act also authorizes the Board to delegate to its Regional Directors the determination on matters concerning elections. Under this delegation of authority the Regional Directors can determine the appropriateness of the unit, direct an election, and certify the outcome. Upon the request of an interested party, the Board may review the action of a Regional Director, but such review does not stop the election process unless the Board so orders. The election details are left to the Regional Director. Such matters as who may vote, when the election will be held, and what standards of conduct will be imposed on the parties are decided in accordance with the Board’s rules and its decisions.

Who may vote in a representation election. To be entitled to vote, an employee must have worked in the unit during the eligibility period set by the Board and must be employed in the unit on the date of the election. Generally, the eligibility period is the employer’s payroll period just before the date on which the election was directed. This requirement does not apply, however, to employees who are ill, on vacation, or temporarily laid off, or to employees in military service who appear in person at the polls. The NLRB rules take into consideration the fact that employment is typically irregular in certain industries. In such industries eligibility to vote is determined according to formulas designed to permit all employees who have a substantial continuing interest in their employment conditions to vote. Examples of these formulas, which differ from case to case, are:

• In one case, employees of a construction company were allowed to vote if they worked for the employer at least 65 days during the year before the “eligibility date” for the election.

• In another case longshoremen who worked at least 700 hours during a specified contract year, and at least 20 hours in each full month between the end of that year and the date on which the election was directed, were allowed to vote.

• Radio and television talent employees and musicians in the television film, motion picture, and recording industries have been held eligible to vote if they worked in the unit 2 or more days during the year before the date on which the election was directed.

When strikers may be allowed to vote. Section 9(c)(3) provides that economic strikers who have been replaced by bona fide permanent employees may be entitled to vote in “any election conducted within 12 months after the commencement of the strike.” The permanent replacements are also eligible to vote at the same time. As a general proposition, a striker is considered to be an economic striker unless found by the NLRB to be on strike over unfair labor practices of the employer. Whether the economic striker is eligible to vote is determined on the facts of each case.

When elections are held. Ordinarily, elections are held within 30 days after they are directed. Seasonal drops in employment or any change in operations that would prevent a normal work force from being present may cause a different election date to be set. Normally an election will not be conducted when unfair labor practice charges have been filed based on conduct of a nature which would have a tendency to interfere with the free choice of the employees in an election, except that, in certain cases, the Board may proceed to the election if the charging party so requests.

Conduct of elections. NLRB elections are conducted in accordance with strict standards designed to give the employee voters an opportunity to freely indicate whether they wish to be represented for purposes of collective bargaining. Election details, such as time, place, and notice of an election, are left largely to the Regional Director who usually obtains the agreement of the parties on these matters. Any party to an election who believes that the Board election standards were not met may, within 7 days after the tally of ballots has been furnished, file objections to the election with the Regional Director under whose supervision the election was held. In most cases, the Regional Director’s rulings on these objections may be appealed to the Board for decision.

An election will be set aside if it was accompanied by conduct that the NLRB considers created an atmosphere of confusion or fear of reprisals and thus interfered with the employees’ freedom of choice. In any particular case the NLRB does not attempt to determine whether the conduct actually interfered with the employees’ expression of free choice, but rather asks whether the conduct tended to do so. If it is reasonable to believe that the conduct would tend to interfere with the free expression of the employees’ choice, the election may be set aside. Examples of conduct the Board considers to interfere with employee free choice are:

• Threats of loss of jobs or benefits by an employer or a union to influence the votes or union activities of employees.

• A grant of benefits or promise to grant benefits to influence the votes or union activities of employees. • An employer firing employees to discourage or encourage their union activities or a union causing an

employer to take such action. • An employer or a union making campaign speeches to assembled groups of employees on company time

within the 24-hour period before the election. • The incitement of racial or religious prejudice by inflammatory campaign appeals made by either an

employer or a union. • Threats or the use of physical force or violence against employees by an employer or a union to influence

their votes. • The occurrence of extensive violence or trouble or widespread fear of job losses which prevents the holding

of a fair election, whether caused by an employer or a union.

Unfair Labor Practices of Employers The unfair labor practices of employers are listed in Section 8(a) of the Act; those of labor organizations in

Section 8(b). Section 8(e) lists an unfair labor practice that can be committed only by an employer and a labor organization acting together. The “Types of Cases” chart at pages 18–19 may be helpful in getting to know the relationship between the various unfair labor practice sections of the Act.

Section 8(a)(1)—Interference with Section 7 Rights. Section 8(a)(1) forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Any prohibited interference by an employer with the rights of employees to organize, to form, join, or assist a labor organization, to bargain collectively, to engage in other concerted activities for mutual aid or protection, or to refrain from any or all of these activities, constitutes a violation of this section. This is a broad prohibition on employer interference, and an employer violates this section whenever it commits any of the other employer unfair labor practices. In consequence, whenever a violation of Section 8(a)(2), (3), (4), or (5) is committed a violation of Section 8(a)(1) is also found. This is called a “derivative violation” of Section 8(a)(1).

Examples of violations of Section 8(a)(1). Employer conduct may, of course, independently violate Section 8(a)(1). Examples of such independent violations are:

• Threatening employees with loss of jobs or benefits if they should join or vote for a union. • Threatening to close down the plant if a union should be organized in it. • Questioning employees about their union activities or membership in such circumstances as will tend to

restrain or coerce the employees. • Spying on union gatherings, or pretending to spy. • Granting wage increases deliberately timed to discourage employees from forming or joining a union.

Section 8(a)(2)—Domination or Illegal Assistance and Support of a Labor Organization. Section 8(a)(2) makes it unlawful for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” This section not only outlaws “company unions” that are dominated by the employer, but also forbids an employer to contribute money to a union it favors or to give a union improper advantages that are denied to rival unions.

Domination. A labor organization is considered dominated within the meaning of this section if the employer has interfered with its formation and has assisted and supported its operation and activities to such an extent that it must be looked at as the employer’s creation instead of the true bargaining representative of the employees. Such domination is the result of a combination of factors and has been found to exist where there is not only the factor of the employer getting the organization started, but also such other factors as the employer deciding how the organization will be set up and what it will do, or representatives of management actually taking part in the meetings and activities of the organization and trying to influence its actions and policies.

Illegal assistance and support. Certain lesser kinds of employer assistance to a union may constitute unlawful “interference” even if the union is not “dominated” by the employer. For example, an employer may not provide financial support to a union either by direct payments or indirect financial aid. (But an employer does not violate this prohibition by permitting employees to confer with it and/or the union regarding grievances or other union business during working hours without loss of pay.)

When rival unions are competing to organize an employer’s employees, the employer is forbidden to give the union it favors privileges it denies to the other union. It is also forbidden to recognize either union once it knows that one of the unions has filed a valid petition with the Board requesting a representation election. When an employer and a union already have an established bargaining relationship, however, the employer is required to continue bargaining with the incumbent even though a rival union is attempting to organize the employees. In these circumstances, the rival’s filing of a petition does not prevent continued dealing between the employer and the incumbent unless the incumbent has lost the support of a majority of the employees.

Examples of violation of Section 8(a)(2). An employer violates Section 8(a)(2) by:

• Taking an active part in organizing a union or a committee to represent employees. • Bringing pressure on employees to support a union financially, except in the enforcement of a lawful

union-security agreement. • Allowing one of several unions, competing to represent employees, to solicit on company premises during

working hours and denying other unions the same privilege. • Soliciting and obtaining from employees and applicants for employment, during the hiring procedure,

applications for union membership and signed authorizations for the check-off of union dues.

Remedy in cases of domination differs from that in cases of illegal assistance and support. In remedying such unfair labor practices, the NLRB distinguishes between domination of a labor organization and conduct which amounts to no more than illegal assistance. When a union is found to be dominated by an employer, the Board has announced it will order the organization completely disestablished as a representative of employees. But, if the organization is found only to have been supported by employer assistance amounting to less than domination, the Board usually orders the employer to stop such support and to withhold recognition from the organization until such time as it has been certified by the Board as a bona fide representative of employees.

Section 8(a)(3)—Discrimination Against Employees. Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate against employees “in regard to hire or tenure of employment or any term or condition of employment” for the purpose of encouraging or discouraging membership in a labor organization. In general, the Act makes it illegal for an employer to discriminate in employment because of an employee’s union or other group, activity within the protection of the Act. A banding together of employees, even in the absence of a formal organization, may constitute a labor organization for purposes of Section 8(a)(3). It also prohibits discrimination because an employee has refrained from taking part in such union or group activity except where a valid union- security agreement is in effect. Discrimination within the meaning of the Act would include such action as refusing to hire, discharging, demoting, assigning to a less desirable shift or job, or withholding benefits.

The union security exception to Section 8(a)(3). As previously noted, Section 8(a)(3) provides that an employee may be discharged for failing to make certain lawfully required payments to the exclusive bargaining representative under a lawful union-security agreement. For a fuller discussion of this issue, see pages 2–3, above.

Even when there is a valid union-security agreement in effect, an employer may not pay the union the dues and fees owed by its employees. The employer may, however, deduct these amounts from the wages of its employees and forward them to the union for each employee who has voluntarily signed a dues “checkoff” authorization. Such checkoff authorization may be made irrevocable for no more than a year. But employees may revoke their checkoff authorizations after a Board-conducted election in which the union’s authority to maintain a union-security agreement has been withdrawn.

The Act does not limit employer’s right to discharge for economic reasons. This section does not limit an employer’s right to discharge, transfer, or layoff an employee for genuine economic reasons or for such good cause as disobedience or bad work. This right applies equally to employees who are active in support of a union and to those who are not.

In situations in which an employer disciplines an employee both because the employee has violated a work rule and because the employee has engaged in protected union activity, the discipline is unlawful unless the employer can show that the employee would have received the same discipline even if he or she had not engaged in the protected union activity.

An employer who is engaged in good-faith bargaining with a union may lock out the represented employees, sometimes even before impasse is reached in the negotiations, if it does so to further its position in bargaining. But a bargaining lockout may be unlawful if the employer is at that time unlawfully refusing to bargain or is bargaining in bad faith. It is also unlawful if the employer’s purpose in locking out its employees is to discourage them in their union loyalties and activities, that is, if the employer is motivated by hostility toward the union. Thus, a lockout to defeat a union’s efforts to organize the employer’s employees would violate the Act, as would the lockout of only those of its employees who are members of the union. On the other hand, lockouts are lawful that are intended to prevent any unusual losses or safety hazards that would be caused by an anticipated “quickie” strike. And a whipsaw strike against one employer engaged in multiemployer bargaining justifies a lockout by any of the other employers who are party to the bargaining.

Examples of violations of Section 8(a)(3). Examples of illegal discrimination under Section 8(a)(3) include:

• Discharging employees because they urged other employees to join a union. • Refusing to reinstate employees when jobs they are qualified for are open because they took part in a

union’s lawful strike. • Granting of “superseniority” to those hired to replace employees engaged in a lawful strike. • Demoting employees because they circulated a union petition among other employees asking the employer

for an increase in pay. • Discontinuing an operation at one plant and discharging the employees involved followed by opening the

same operation at another plant with new employees because the employees at the first plant joined a union.

• Refusing to hire qualified applicants for jobs because they belong to a union. It would also be a violation if the qualified applicants were refused employment because they did not belong to a union, or because they belonged to one union rather than another.

Section 8(a)(4)—Discrimination for NLRB Activity. Section 8(a)(4) makes it an unfair labor practice for an employer “to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act.” This provision guards the right of employees to seek the protection of the Act by using the processes of the NLRB. Like the previous section, it forbids an employer to discharge, layoff, or engage in other forms of discrimination in working conditions against employees who have filed charges with the NLRB, given affidavits to NLRB investigators, or testified at an NLRB hearing. Violations of this section are in most cases also violations of Section 8(a)(3).

Examples of violations of Section 8(a)(4) are:

• Refusing to reinstate employees when jobs they are otherwise qualified for are open because they filed charges with the NLRB claiming their layoffs were based on union activity.

• Demoting employees because they testified at an NLRB hearing. Section 8(a)(5)—Refusal to Bargain in Good Faith. Section 8(a)(5) makes it illegal for an employer to refuse

to bargain in good faith about wages, hours, and other conditions of employment with the representative selected by a majority of the employees in a unit appropriate for collective bargaining. A bargaining representative which seeks to enforce its right concerning an employer under this section must show that it has been designated by a majority of the employees, that the unit is appropriate, and that there has been both a demand that the employer bargain and a refusal by the employer to do so.

TYPES OF CASES I. CHARGES OF UNFAIR LABOR PRACTICES

(C Cases) Charge Against

Employer Charge Against Labor Organization

Section of the Act CA

Section of the Act CB

Section of the Act CC

Section of the Act CD

8(a)(1) To interfere with, restrain, or coerce employees in exercise of their rights under Section 7 (to join or assist a labor organization or to refrain). 8(a)(2) To dominate or interfere with the formation or administration of a labor organization or contribute financial or other support to it. 8(a)(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. 8(a)(4) To discharge or otherwise discriminate against employees because they have given testimony under the Act. 8(a)(5) To refuse to bargain collectively with representatives of its employees.

8(b)(1)(A) To restrain or coerce employees in exercise of their rights under Section 7 (to join or assist a labor organization or to refrain). 8(b)(1)(B) To restrain or coerce an employer in the selection of its representatives for collective bargaining or adjustment of grievances. 8(b)(2) To cause or attempt to cause an employer to discriminate against an employee. 8(b)(3) To refuse to bargain collectively with an employer. 8(b)(5) To require or employees the payment of excessive or discriminatory fees for membership. 8(b)(6) To cause or attempt to cause an employer to pay or agree to pay money or other thing of value for services which are not performed or not to be performed.

8(b)(4)(i) To engage in, or induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike, work stoppage, or boycott, or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object is: (A) To force or require any employer or self-employed person to join any labor or employer organization or to enter into any agreement prohibited by Section 8(e) (B) To force or require any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or force or require any other employer to recognize or bargain with a labor organization as the representative of its employees unless such labor organization has been so certified. (C) To force or require any employer to recognize or bargain with a particular labor organization as the representative of its employees if another labor organization has been certified as the representative.

Section of the Act CG

8(g) To strike, picket, or otherwise concertedly refuse to work at any health care institution without notifying the institution and the Federal Mediation and Conciliation Service in writing 10 days prior to such action.

TYPES OF CASES—Continued

1. CHARGES OF UNFAIR LABOR PRACTICES

(C CASES)

2. PETITIONS FOR CERTIFICATION OR

DECERTIFICATION OF REPRESENTATIVES

(R CASES)

3. OTHER PETITIONS

Charge Against Labor Organization

Charge Against Labor Organization and

Employer

By or on Behalf of Employees

Section of the Act CP

Section of the Act CE

Section of the Act RC

Section of the Act UD

8(b)(7) To picket, or cause or threaten the picketing of, any employer where an object is to force or require an employer to recognize or bargain with a labor organization as the representative of its employees, or to force or require the employees of an employer to select such labor organization as their collective-bargaining representative, unless such labor organization is currently certified as the representative of such employees: (A) where the employer has lawfully recognized any other labor organization and a question concerning representation may not appropriately be raised under Section 9(c). (B) where within the preceding 12 months a valid election under Section 9(c) has been conducted, or (C) where picketing has been conducted without a petition under Section 9(c) being filed within a reasonable period of time not to exceed 30 days from the commencement of the picketing; except where the picketing is for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, and it does not have an effect of interference with deliveries or services.

8(e) To enter into any contract or agreement (any labor organization and any employer) whereby such employer ceases or refrains or agrees to cease or refrain from handling or dealing in any product of any other employer, or to cease doing business with any other person.

9(c)(1)(A)(i) Alleging that a substantial number of employees wish to be represented for collective bargaining and their employer declines to recognize their representative.*

9(e)(1) Alleging the employees (30 percent or more of an appropriate unit) wish to rescind an existing union security agreement.

Section of the Act RD

By a Labor Organization

or an Employer 9(c)(1)(A)(ii) Alleging that a substantial number of employees assert that the certified or currently recognized bargaining representative is no longer their representative.*

Board Rules UC

Subpart C Seeking clarification of an existing bargaining unit.

By an Employer Board Rules AC

Section of the Act RM Subpart C Seeking

amendment of an outstanding certification of bargaining representative.

9(c)(1)(B) Alleging that one or more claims for recognition as exclusive bargaining representative have been received by the employer.*

*If an 8(b)(7) charge has been filed involving the same employer, these statements in RC, RD, and RM petitions are not required.

Charges filed with the National Labor Relations Board are letter-coded and numbered. Unfair labor practice charges are classified as “C” cases and petitions for certification or decertification or representatives as “R” cases. This chart indicates the letter codes used for “C” cases, at left, and “R” cases, above, and also presents a summary of each section involved.

Required subjects of bargaining. The duty to bargain covers all matters concerning rates of pay, wages, hours of employment, or other conditions of employment. These are called “mandatory” subjects of bargaining about which the employer, as well as the employees’ representative, must bargain in good faith, although the law does not require “either party to agree to a proposal or require the making of a concession.” In addition to wages and hours of work, these mandatory subjects of bargaining include but are not limited to such matters as pensions for present employees, bonuses, group insurance, grievance procedures, safety practices, seniority, procedures for discharge, layoff, recall, or discipline, and union security. Certain managerial decisions such as subcontracting, relocation, and other operational changes may not be mandatory subjects of bargaining, even though they affect employees’ job security and working conditions. The issue of whether these decisions are mandatory subjects of bargaining depends on the employer’s reasons for taking action. Even if the employer is not required to bargain about the decision itself, it must bargain about the decision’s effects on unit employees. On “nonmandatory” subjects, that is, matters that are lawful but not related to “wages, hours, and other conditions of employment,” the parties are free to bargain and to agree, but neither party may insist on bargaining on such subjects over the objection of the other party.

Duty to bargain defined. An employer who is required to bargain under this section must, as stated in Section 8(d), “meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party.”

What constitutes a violation of Section 8(a)(5). An employer, therefore, will be found to have violated Section 8(a)(5) if its conduct in bargaining, viewed in its entirety, indicates that the employer did not negotiate with a good faith intention to reach agreement. However, the employer’s good faith is not at issue when its conduct constitutes an out-and-out refusal to bargain on a mandatory subject. For example, it is a violation for an employer, regardless of good faith, to refuse to bargain about a subject that it believes is not a mandatory subject of bargaining, when in fact it is.

Duty to meet and confer. The duty of an employer to meet and confer with the representative of its employees includes the duty to deal with whoever is designated by the employees’ representative to carry on negotiations. An employer may not dictate to a union its selection of agents or representatives and the employer must, in general, recognize the designated agent.

Duty to supply information. The employer’s duty to bargain includes the duty to supply, on request, information that is “relevant and necessary” to allow the employees’ representative to bargain intelligently and effectively with respect to wages, hours, and other conditions of employment.

Multiemployer bargaining. When there is a history of bargaining between a union and a number of employers acting jointly, the employees who are thus represented constitute a multiemployer bargaining unit. Once such a unit has been established, any of the participating employers—or the union—may retire from this multiemployer bargaining relationship only by mutual assent or by a timely submitted withdrawal. Withdrawal is considered timely if unequivocal notice of the withdrawal is given near the termination of a collective-bargaining agreement but before bargaining begins on the next agreement.

Duty to refrain from unilateral action. Finally, the duty of an employer to bargain includes the duty to refrain from unilateral action, that is, taking action on its own with respect to matters concerning which it is required to bargain, and from making changes in terms and conditions of employment without consulting the employees’ representative.

Duty of successor employers. An employer who purchases or otherwise acquires the operations of another may be obligated to recognize and bargain with the union that represented the employees before the business was transferred. In general, these bargaining obligations exist—and the purchaser is termed a successor employer—when there is a substantial continuity in the employing enterprise despite the sale and transfer of the business. Whether the purchaser is a successor employer is dependent on several factors, including the number of employees taken over by the purchasing employer, the similarity in operations and product of the two employers, the manner in which the purchaser integrates the purchased operations into its other operations, and the character of the bargaining relationship and agreement between the union and the original employer .

Examples of violations of Section 8(a)(5) are as follows:

• Refusing to meet with the employees’ representative because the employees are out on strike. • Insisting, until bargaining negotiations break down, on a contract provision that all employees will be

polled by secret ballot before the union calls a strike. • Refusing to supply the employees’ representative with cost and other data concerning a group insurance

plan covering the employees. • Announcing a wage increase without consulting the employees’ representative.

• Failing to bargain about the effects of a decision to close one of the employer’s plants. Section 8(e)—Entering a Hot Cargo Agreement. Section 8(e), added to the Act in 1959, makes it an unfair

labor practice for any labor organization and any employer to enter into what is commonly called a “hot cargo” or “hot goods” agreement. It may also limit the restrictions that can be placed on the subcontracting of work by an employer. The typical hot cargo or hot goods clause in use before the 1959 amendment to the Act provided that employees would not be required by their employer to handle or work on goods or materials going to, or coming from, an employer designated by the union as “unfair.” Such goods were said to be “hot cargo” thereby giving Section 8(e) its popular name. These clauses were most common in the construction and trucking industries.

What is prohibited. Section 8(e) forbids an employer and a labor organization to make an agreement whereby the employer agrees to stop doing business with any other employer and declares void and unenforceable any such agreement that is made. It should be noted that a strike or picketing, or any other union action, or the threat of it, to force an employer to agree to a hot cargo provision, or to force it to act in accordance with such a clause, has been held by the Board to be a violation of Section 8(b)(4). Exceptions are allowed in the construction and garment industries, and a union may seek, by contract, to keep within a bargaining unit work that is being done by the employees in the unit or to secure work that is “fairly claimable” in that unit.

Exceptions for construction and garment industries. In the construction industry a union and an employer in the industry may agree to a provision that restricts the contracting or subcontracting of work to be done at the construction site. Such a clause contained in the agreement between the employer and the union typically provides that if work is subcontracted by the employer it must go to an employer who has an agreement with the union. A union in the construction industry may engage in a strike and picketing to obtain, but not to enforce, contractual restrictions of this nature. Similarly, in the garment industry an employer and a union can agree that work to be done on the goods or on the premises of a jobber or manufacturer, or work that is part of “an integrated process of production in the apparel and closing industry,” can be subcontracted only to an employer who has an agreement with the union. This exception, unlike the previous one concerning the construction industry, allows a labor organization in the garment industry, not only to seek to obtain, but also to enforce, such a restriction on subcontracting by striking, picketing, or other lawful actions.

Unfair Labor Practices of Labor Organizations Section 8(b)(1)(A)—Restraint and Coercion of Employees. Section 8(b)(1)(A) forbids a labor organization or

its agents “to restrain or coerce employees in the exercise of the rights guaranteed in section 7.” The section also provides that it is not intended to “impair the rights of a labor organization to prescribe its own rules” concerning membership in the labor organization.

Section 8(b)(1)(A) compared with Section 8(a)(1). Like Section 8(a)(1) , Section 8(b)(1)(A) is violated by conduct that independently restrains or coerces employees in the exercise of their Section 7 rights regardless of whether the conduct also violates other provisions of Section 8(b). But whereas employer violations of Section 8(a)(2), (3), (4), and (5) are held to be violations of Section 8(a)(1) too, the Board has held, based on the intent of Congress when Section 8(b)(1)(A) was written, that violation of Section 8(b)(2) through (7) do not also “derivatively” violate Section 8(b)(1)(A). The Board does hold, however, that making or enforcing illegal union- security agreements or hiring agreements that condition employment on union membership not only violates Section 8(b)(2) but also Section 8(b)(1)(A), because such action restrains or coerces employees in their Section 7 rights.

Union conduct that is reasonably calculated to restrain or coerce employees in their Section 7 rights violates Section 8(b)(1)(A) whether it succeeds in actually restraining or coercing employees.

A union may violate Section 8(b)(1)(A) by coercive conduct of its officers or agents, of pickets on a picket line endorsed by the union, or of strikers who engage in coercion in the presence of union representatives who do not repudiate the conduct.

What violates Section 8(b)(1)(A). Unlawful coercion may consist of acts specifically directed at an employee such as physical assaults, threats of violence, and threats to affect an employee’s job status. Coercion also includes other forms of pressure against employees such as acts of a union while representing employees as their exclusive bargaining agent (see Section 9(a), p. 8). A union that is a statutory bargaining representative owes a duty of fair representation to all the employees it represents. It may exercise a wide range of reasonable discretion in carrying out the representative function, but it violates Section 8(b)(1)(A) if, while acting as the employees’ statutory bargaining representative, it takes or withholds action in connection with their employment because of their union activities or for any irrelevant or arbitrary reason such as an employee’s race or sex.

Section 8(b)(1)(A) recognizes the right of unions to establish and enforce rules of membership and to control their internal affairs. This right is limited to union rules and discipline that affect the rights of employees as union members and that are not enforced by action affecting an employee’s employment. Also, rules to be protected must be aimed at matters of legitimate concern to unions such as the encouragement of members to support a lawful strike or participation in union meetings. Rules that conflict with public policy, such as rules that limit a member’s right to file unfair labor practice charges, are not protected. And a union may not fine a member for filing a decertification petition although it may expel that individual for doing so. A rule that prohibits a member from resigning from the union is unlawful. The union may not fine a former member for any protected conduct engaged in after he or she resigns.

Examples of violations of Section 8(b)(1)(A). Examples of restraint or coercion that violate Section 8(b)(1)(A) when done by a union or its agents include the following:

• Mass picketing in such numbers that nonstriking employees are physically barred from entering the plant. • Acts of force or violence on the picket line, or in connection with a strike. • Threats to do bodily injury to nonstriking employees. • Threats to employees that they will lose their jobs unless they support the union’s activities. • Statement to employees who oppose the union that the employees will lose their jobs if the union wins a

majority in the plant. • Entering into an agreement with an employer that recognizes the union as exclusive bargaining

representative when it has not been chosen by a majority of the employees. • Fining or expelling members for crossing a picket line that is unlawful under the Act or that violates a no-

strike agreement. • Fining employees for crossing a picket line after they resigned from the union. • Fining or expelling members for filing unfair labor practice charges with the Board or for participating in

an investigation conducted by the Board. The following are examples of restraint or coercion that violate Section 8(b)(1)(A) when done by a union that is

the exclusive bargaining representative:

• • Refusing to process a grievance in retaliation against an employee’s criticism of union officers.

• Maintaining a seniority arrangement with an employer under which seniority is based on the employee’s prior representation by the union elsewhere.

• Rejecting an application for referral to a job in a unit represented by the union based on the applicant’s race or union activities.

Section 8(b)(1)(B)—Restraint and Coercion of Employers. Section 8(b)(1)(B) prohibits a labor organization from restraining or coercing an employer in the selection of a bargaining representative. The prohibition applies regardless of whether the labor organization is the majority representative of the employees in the bargaining unit. The prohibition extends to coercion applied by a union to a union member who is a representative of the employer in the adjustment of grievances. This section is violated by such conduct as the following:

Examples of violations of Section 8(b)(1)(B).

• Insisting on meeting only with a company’s owners and refusing to meet with the attorney the company has engaged to represent the company in contract negotiations, and threatening to strike to force the company to accept its demands.

• Striking members of an employer association that bargains with the union as the representative of the employers to compel the struck employers to sign individual contracts with the union.

• Insisting during contract negotiations that the employer agree to accept working conditions that will be established by a bargaining group to which it does not belong.

• Fining or expelling supervisors for the way they apply the bargaining contract while carrying out their supervisory functions or for crossing a picket line during a strike to perform their supervisory duties.

Section 8(b)(2)—Causing or Attempting to Cause Discrimination. Section 8(b)(2) makes it an unfair labor practice for a labor organization to cause an employer to discriminate against an employee in violation of Section 8(a)(3). As discussed earlier, Section 8(a)(3) prohibits an employer from discriminating against an employee in regard to wages, hours, and other conditions of employment for the purpose of encouraging or discouraging membership in a labor organization. It does allow, however, the making of union-security agreements under certain specified conditions. (See pp. 2–3, above.)

What violates Section 8(b)(2). A union violates Section 8(b)(2), for example, by demanding that an employer discriminate against employees because of their failure to make certain otherwise lawful payments to the union when there is no valid union-security agreement in effect. (See pp. 2–3, above.) The section can also be violated by agreements or arrangements with employers that unlawfully condition employment or job benefits on union membership, on the performance of union membership obligations, or on arbitrary grounds. Union conduct affecting an employee’s employment in a way that is contrary to provisions of the bargaining contract may likewise be violative of the section. But union action that causes detriment to an individual employee in that individual’s employment does not violate Section 8(b)(2) if it is consistent with nondiscriminatory provisions of a bargaining contract negotiated for the benefit of the total bargaining unit or if it is for some other legitimate purpose.

To find that a union caused an employer to discriminate, it is not necessary to show that any express demand was spoken. A union’s conduct, accompanied by statements advising or suggesting that action is expected of an employer, may be enough to find a violation of this section if the union’s action can be shown to be a causal factor in the employer’s discrimination.

Illegal hiring hall agreements and practices. Contracts or informal arrangements with a union under which an employer gives preferential treatment to union members are violations of Section 8(b)(2). It is not unlawful for an employer and a union to enter into an agreement whereby the employer agrees to hire new employees exclusively through the union hiring hall so long as there is neither a provision in the agreement nor a practice in effect that discriminates against nonunion members in favor of union members or otherwise discriminates on the basis of union membership obligations. Both the agreement and the actual operation of the hiring hall must be nondiscriminatory: referrals must be made without reference to union membership or irrelevant or arbitrary considerations such as race. Referral standards or procedures, even if nondiscriminatory on their face, are unlawful when they continue previously discriminatory conditions of referral. However, a union may, in setting referral standards, consider legitimate aims such as sharing available work and easing the impact of local unemployment. It may also charge referral fees if the amount of the fee is reasonably related to the cost of operating the referral service.

Illegal union-security agreements. Union-security agreements that require employees to make certain lawfully required payments to the union after they are hired are permitted by this section as previously discussed. Union- security agreements that do not meet all the requirements listed on page 2 will not support a discharge. A union that attempts to force an employer to enter into an illegal union-security agreement, or that enters into and keeps in effect such an agreement, violates Section 8(b)(2), as does a union that attempts to enforce such an illegal agreement by

bringing about an employee’s discharge. Even when a union-security provision of a bargaining contract meets all statutory requirements so that it is permitted by Section 8(a)(3), a union may not lawfully require the discharge of employees under the provision unless the employees had been informed of the union-security agreement and of their specific obligation under it. And a union violates Section 8(b)(2) if it tries to use the union-security provisions of a contract to collect payments other than those that lawfully may be required. (See pp. 2–3, above.) Assessments, fines, and penalties may not be enforced by application of a union-security agreement.

Examples of violations of Section 8(b)(2) are:

• Causing an employer to discharge employees because they circulated a petition urging a change in the union’s method of selecting shop stewards.

• Causing an employer to discharge employees because they made speeches against a contract proposed by the union.

• Making a contract that requires an employer to hire only members of the union or employees “satisfactory” to the union.

• Causing an employer to reduce employees’ seniority because they engaged in antiunion acts. • Refusing referral or giving preference on the basis of race or union activities in making job referrals to

units represented by the union. • Seeking the discharge of an employee under a union-security agreement for failure to pay a fine levied by

the union. Section 8(b)(3)—Refusal to Bargain in Good Faith. Section 8(b)(3) makes it illegal for a labor organization to

refuse to bargain in good faith with an employer about wages, hours, and other conditions of employment if it is the representative of that employer’s employees. This section imposes on labor organizations the same duty to bargain in good faith that is imposed on employers by Section 8(a)(5). Both the labor organization and the employer are required to follow the procedure set out in Section 8(d) before terminating or changing an existing contract (see p. 6).

A labor organization that is the employees’ representative must meet at reasonable times with the employer or his designated representative, must confer in good faith on matters pertaining to wages, hours, or other conditions of employment, or the negotiation of an agreement, or any question arising under an agreement, and must sign a written agreement if requested and if one is reached. The obligation does not require the labor organization or the employer to agree to a proposal by the other party or make a concession to the other party, but it does require bargaining with an open mind in an attempt to reach agreement. So, while a union may try in contract negotiations to establish wages and benefits comparable to those contained in other bargaining agreements in the area, it may not insist on such terms without giving the employer an opportunity to bargain about the terms. Likewise, a union may seek voluntary bargaining on nonmandatory subjects of bargaining (p. 20), such as a provision for an industry promotion fund, but may not insist on bargaining about such subjects or condition execution of a contract on the reaching of agreement on a nonmandatory subject.

When a union has been bargaining with a group of employers in a multiemployer bargaining unit, it may withdraw at any time from bargaining on that basis and bargain with one of the employers individually if the individual employer and the multiemployer group agree to the union’s withdrawal. And even in the absence of employer consent, a union may withdraw from multiemployer bargaining by giving the employers unequivocal notice of its withdrawal near the expiration of the agreement but before bargaining on a new contract has begun.

Section 8(b)(3) not only requires that a union representative bargain in good faith with employers, but also requires that the union carry out its bargaining duty fairly with respect to the employees it represents. A union, therefore, violates Section 8(b)(3) if it negotiates a contract that conflicts with that duty, such as a contract with racially discriminatory provisions, or if it refuses to handle grievances under the contract for irrelevant or arbitrary reasons.

Examples of violations of Section 8(b)(3). Section 8(b)(3) is violated by any of the following:

• Insisting on the inclusion of illegal provisions in a contract, such as a closed shop or a discriminatory hiring hall.

• Refusing to negotiate on a proposal for a written contract. • Striking against an employer who has bargained, and continues to bargain, on a multiemployer basis to

compel it to bargain separately. • Refusing to meet with the attorney designated by the employer as its representative in negotiations. • Terminating an existing contract and striking for a new one without notifying the employer, the Federal

Mediation and Conciliation Service, and the state mediation service, if any.

• Conditioning the execution of an agreement on inclusion of a nonmandatory provision such as a performance bond.

• Refusing to process a grievance because of the race, sex, or union activities of an employee for whom the union is the statutory bargaining representative.

Section 8(b)(4)—Prohibited Strikes and Boycotts. Section 8(b)(4) prohibits a labor organization from engaging in strikes or boycotts or taking other specified actions to accomplish certain purposes or “objects” as they are called in the Act. The proscribed action is listed in clauses (i) and (ii), the objects are described in subparagraphs (A) through (D). A union commits an unfair labor practice if it takes any of the kinds of action listed in clauses (i) and (ii) as a means of accomplishing any of the objects listed in the four subparagraphs.

Proscribed action: Inducing or encouraging a strike work stoppage or boycott. Clause (i) forbids a union to engage in a strike, or to induce or encourage a strike, work stoppage, or a refusal to perform services by “any individual employed by any person engaged in commerce or in an industry affecting commerce” for one of the objects listed in subparagraphs (A) through (D). The words “induce and encourage” are considered by the U. S. Supreme Court to be broad enough to include every form of influence or persuasion. For example, it has been held by the NLRB that a work stoppage on a picketed construction project was “induced” by a union through its business agents who, when they learned about the picketing, told the job stewards that they (the business agents) would not work behind the picket line. It was considered that this advice not only induced the stewards to leave the job, but caused them to pass the information on to their fellow employees, and that such conduct informed the other employees that they were expected not to work behind the picket line. The world “person” is defined in Section 2(1) as including “one or more individuals, labor organizations, partnerships, associations, corporations,” and other legal persons. As so defined, the word “person” is broader than the word “employer.” For example, a railroad company, although covered by the Railway Labor Act, is excluded from the definition of “employer” in the National Labor Relations Act and, therefore, neither the railroad company nor its employees are covered by the National Labor Relations Act. But a railroad company is a “person engaged in commerce” as defined above and, therefore, a labor organization is forbidden to “induce or encourage” individuals employed by a railroad company to engage in a strike, work stoppage, or boycott for any of the objects in subparagraphs (A) through (D).

Proscribed action: Threats, coercion, and restraint. Clause (ii) makes it an unfair labor practice for a union to “threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce” for any of the proscribed objects. Even though no direct threat is voiced by the union, there may nevertheless be coercion and restraint that violates this clause. For example, when a union picketed a construction job to bring about the removal of a nonunion subcontractor in violation of Section 8(b)(4)(B), the picketing induced employees of several other subcontractors to stop work. When the general contractor asked what could be done to stop the picketing, the union’s business agent replied that the picketing would stop only if the nonunion subcontractor were removed from the job. The NLRB held this to be “coercion and restraint” within the meaning of clause (ii).

Subparagraph (A)—Prohibited object: Compelling membership in an employer or labor organization or compelling a hot cargo agreement. Section 8(b)(4)(A) prohibits unions from engaging in clause (i) or (ii) action to compel an employer or self-employed person to join any labor or employer organization or to force an employer to enter a hot cargo agreement prohibited by Section 8(e). Examples of violations of this section are:

Examples of violations of Section 8(b)(4)(A).

• In an attempt to compel a beer distributor to join a union, the union prevents the distributor from obtaining beer at a brewery by inducing the brewery’s employees to refuse to fill the distributor’s orders.

• In an attempt to secure for its members certain stevedoring work required at an employer’s unloading operation, the union pickets to force the employer to join an employer association with which the union has a contract.

• A union pickets an employer (one not in the construction and garment industries), or threatens to picket it, to compel that employer to enter into an agreement whereby the employer will only do business with persons who have an agreement with a union.

Subparagraph (B)—Prohibited object: Compelling recognition of an uncertified union. Section 8(b)(4)(B) contains the Act’s secondary boycott provision. A secondary boycott occurs if a union has a dispute with Company A and, in furtherance of that dispute, causes the employees of Company B to stop handling the products of Company A, or otherwise forces Company B to stop doing business with Company A. The dispute is with Company A, called the “primary” employer, the union’s action is against Company B, called the “secondary” employer, hence the term “secondary boycott.” In many cases the secondary employer is a customer or supplier of the primary employer with

whom the union has the dispute. In general, the Act prohibits both the secondary boycott and the threat of it. Examples of prohibited secondary boycotts are:

Examples of violations of Section 8(b)(4)(B).

• Picketing an employer to force it to stop doing business with another employer who has refused to recognize the union.

• Asking the employees of a plumbing contractor not to work on connecting up airconditioning equipment manufactured by a nonunion employer whom the union is attempting to organize.

• Urging employees of a building contractor not to install doors that were made by a manufacturer that is nonunion or that employs members of a rival union.

• Telling an employer that its plant will be picketed if that employer continues to do business with an employer the union has designated as “unfair.”

The prohibitions of Section 8(b)(4)(B) do not protect a secondary employer from the incidental effects of union action that is taken directly against the primary employer. Thus, it is lawful for a union to urge employees of a secondary supplier at the primary employer’s plant not to cross a picket line there. Section 8(b)(4)(B) also does not proscribe union action to prevent an employer from contracting out work customarily performed by its employees, even though an incidental effect of such conduct might be to compel that employer to cease doing business with the subcontractor.

When an employer is not protected from secondary strikes and boycotts. In order to be protected against the union action that is prohibited under this subparagraph, the secondary employer has to be a neutral as concerns the dispute between the union and the primary employer. For secondary boycott purposes an employer is considered an “ally” of the primary employer and, therefore, not protected from union action in certain situations. One is based on the ownership and operational relationship between the primary and secondary employers. Here, a number of factors are considered, particularly the following: Are the primary and secondary employers owned and controlled by the same person or persons? Are they engaged in “closely integrated operations?” May they be treated as a single employer under the Act? Another test of the “ally” relationship is based on the conduct of the secondary employer. If an employer, despite its claim of neutrality in the dispute, acts in a way that indicates that it has abandoned its “neutral” position, the employer opens itself up to primary action by the union. An example of this would be an employer who, claiming to be a neutral, enters into an arrangement with a struck employer whereby it accepts and performs farmed. out work of that employer who would normally do the work itself, but who cannot perform the work because its plant is closed by a strike.

When a union may picket an employer who shares a site with another employer. When employees of a primary employer and those of a secondary employer work on the same premises, a special situation is involved and the usual rules do not apply. A typical example of the shared site or “common situs” situation is when a subcontractor with whom a union has a dispute is engaged at work on a construction site alongside other subcontractors with whom the union has no dispute. Picketing at a common situs is permissible if directed solely against the primary employer. But it is prohibited if directed against secondary employers regularly engaged at that site. To assist in determining whether picketing at a common situs is restricted to the primary employer and therefore permissible, or directed at a secondary employer and therefore violative of the statute, the NLRB and the courts have suggested various guidelines for evaluating the object of the picketing, including the following.

Subject to the qualification noted below, the picketing would appear to be primary picketing if the picketing is: 1. Limited to times when the employees of the primary employer are working on the premises. 2. Limited to times when the primary employer is carrying on its normal business there. 3. Confined to places reasonably close to where the employees of the primary employer are working. 4. Conducted so that the picket signs, the banners, and the conduct of the pickets indicate clearly that the dispute

is with the primary employer and not with the secondary employer. These guidelines are known as the Moore Dry Dock standards from the case in which they were first formulated

by the NLRB. However, the NLRB has held that picketing at a common situs may be unlawful notwithstanding compliance with the Moore Dry Dock standards if a union’s statements or actions otherwise indicate that the picketing has an unlawful objective.

Picketing contractors’ gates. In some situations a company may set aside, or reserve, a certain plant gate, or entrance to its premises, for the exclusive use of a contractor. If a union has a labor dispute with the company and pickets the company’s premises, including the gate so reserved, the union may be held to have violated Section 8(b)(4)(B). The U.S. Supreme Court has stated the circumstances under which such a violation may be found as follows:

There must be a separate gate, marked and set apart from other gates; the work done by the employees who use the gate must be unrelated to the normal operations of the employer, and the work must be of a kind that would not, if done when the plant were engaged in its regular operations, necessitate curtailing those operations. However, if the reserved gate is used by employees of both the company and the contractor, the picketing would

be considered primary and not a violation of Section 8(b)(4)(B). Subparagraph (B)—Prohibited object: Compelling recognition of an uncertified union. Section 8(b)(4)(B) also

prohibits secondary action to compel an employer to recognize or bargain with a union that is not the certified representative of its employees. If a union takes action described in clause (i) or (ii) against a secondary employer, and the union’s object is recognition by the primary employer, the union commits an unfair labor practice under this section. To establish that the union has an object of recognition, a specific demand by the union for recognition need not be shown; a demand for a contract, which implies recognition or at least bargaining, is enough to establish an 8(b)(4)(B) object.

Subparagraph (C)—Prohibited object: Compelling recognition of a union if another union has been certified. Section 8(b)(4)(C) forbids a labor organization from using clause (i) or (ii) conduct to force an employer to recognize or bargain with a labor organization other than the one that is currently certified as the representative of its employees. Section 8(b)(4)(C) has been held not to apply when the picketing union is merely protesting working conditions that are substandard for the area.

Subparagraph (D)—Prohibited object: Compelling assignment of certain work to certain employees. Section 8(b)(4)(D) forbids a labor organization from engaging in action described in clauses (i) and (ii) for the purpose of forcing any employer to assign certain work to “employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class.” The Act sets up a special procedure for handling disputes over work assignments that will be discussed later in this material (see p. 38).

Publicity such as handbilling allowed by Section 8(b)(4). The final provision in Section 8(b)(4) provides that nothing in Section 8(b)(4) shall be construed “to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer.” Such publicity is not protected if it has “an effect of inducing any individual employed by any persons other than the primary employer” to refuse to handle any goods or not to perform services. The Supreme Court has held that this provision permitted a union to distribute handbills at the stores of neutral food chains asking the public not to buy certain items distributed by a wholesaler with whom the union had a primary dispute. Moreover, it has also held that peaceful picketing at the stores of a neutral food chain to persuade customers not to buy the products of a struck employer when they traded in these stores was not prohibited by Section 8(b)(4).

Section 8(b)(5)—Excessive or Discriminatory Membership Fees. Section 8(b)(5) makes it illegal for a union to charge employees who are covered by an authorized union-security agreement a membership fee “in an amount which the Board finds excessive or discriminatory under all the circumstances.” The section also provides that the Board in making its finding must consider among other factors “the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected.”

Examples of violations of Section 8(b)(5). Examples of violations of this section include:

• Charging old employees who do not join the union until after a union-security agreement goes into effect an initiation fee of $15 while charging new employees only $5.

• Increasing the initiation fee from $75 to $250 and thus charging new members an amount equal to about 4 weeks’ wages when other unions in the area charge a fee equal to about one-half the employee’s first week’s pay.

Section 8(b)(6)—“Featherbedding.” Section 8(b)(6) forbids a labor organization “to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed.”

Section 8(b)(7)—Organizational and Recognitional Picketing by Noncertified Unions. Section 8(b)(7) prohibits a labor organization that is not currently certified as the employees’ representative from picketing or threatening to picket with an object of obtaining recognition by the employer (recognitional picketing) or acceptance by his employees as their representative (organizational picketing). The object of picketing is ascertained from all the surrounding facts including the message on the picket signs and any communications between the union and the employer. “Recognitional” picketing as used in Section 8(b)(7) refers to picketing to obtain an employer’s initial recognition of the union as bargaining representative of its employees or to force the employer, without formal

recognition of the union, to maintain a specific and detailed set of working conditions. It does not include picketing by an incumbent union for continued recognition or for a new contract. Neither does it include picketing that seeks to prevent the employer from undermining area standards of working conditions by operating at less than the labor costs which prevail under bargaining contracts in the area.

Recognitional and organizational picketing are prohibited in three specific instances.

A. A. When the employer has lawfully recognized another union and a representation election would be barred by either the provisions of the Act or the Board’s Rules, as in the case of a valid contract between the employer and the other union (8(b)(7)(A). (A union is considered lawfully recognized when the employer’s recognition of the union cannot be attacked under the unfair labor practice provisions of Section 8 of the Act.)

B. B. When a valid NLRB representation election has been held within the previous 12 months (8(b)(7)(8)). C. C. When a representation petition is not filed “within a reasonable period of time not to exceed thirty

days from the commencement of such picketing” (8(b)(7)(C)). Publicity picketing. Subparagraph (C) is subject to an exception, called a proviso, which permits picketing “for

the purpose of truthfully advising the public (including consumers)” that an employer does not employ union members or have a contract with a labor organization. However, such picketing loses the protection of this proviso if it has a substantial effect on the employer’s business because it induces “any individual employed by any other person” to refuse to pick up or deliver goods or to perform other services.

Expedited elections under Section 8(b)(7)(C). If an 8(b)(7)(C) charge is filed against the picketing union and a representation petition is filed within a reasonable time after the picketing starts, subparagraph (C) provides for an election to be held forthwith. This election requires neither a hearing nor a showing of interest among the employees. As a consequence the election can be held and the results obtained faster than in a regular election under Section 9(c), and for this reason it is called an “expedited” election. Petitions filed more than a reasonable time after picketing begins and petitions filed during picketing protected by the 8(b)(7)(C) proviso, discussed above, are processed under normal election procedures and the election will not be expedited. The reasonable period in which to file a petition cannot exceed 30 days and may be shorter, when, for instance, picketing is accompanied by violence.

Examples of violations of Section 8(b)(7) are as follows:

• Picketing by a union for organizational purposes shortly after the employer has entered a lawful contract with another union (8(b)(7)(A)).

• Picketing by a union for organizational purposes within 12 months after a valid NLRB election in which a majority of the employees in the unit voted to have no union (8(b)(7)(B)).

• Picketing by a union for recognition continuing for more than 30 days without the filing of a representation petition wherein the picketing stops all deliveries by employees of an other employer (8(b)(7)(C)).

Section 8(e)—Entering a Hot Cargo Agreement. Section 8(e) makes it an unfair labor practice for an employer or a labor organization to enter a hot cargo agreement. This section applies equally to unions and to employers. The discussion of this section as an unfair labor practice of employers has been treated as a discussion of an unfair labor practice of unions as well. (See pp. 21 and 22.)

Section 8(g)—Striking or Picketing a Health Care Institution Without Notice. Section 8(g) prohibits a labor organization from engaging in a strike, picketing, or other concerted refusal to work at any health care institution without first giving at least 10 days’ notice in writing to the institution and the Federal Mediation and Conciliation Service.

How the Act Is Enforced The rights of employees declared by Congress in the National Labor Relations Act are not self-enforcing. To

ensure that employees may exercise these rights, and to protect them and the public from unfair labor practices, Congress established the NLRB to administer and enforce the Act.

Organization of the NLRB—The Board, the General Counsel, the Regional Offices. The NLRB includes the Board, which is composed of five members with their respective staffs, the General Counsel and staff, and the Regional, Subregional, and Resident Offices. The General Counsel has final and independent authority on behalf of the Board, in respect to the investigation of charges and issuance of complaints. Members of the Board are appointed by the President, with consent of the Senate, for 5-year terms. The General Counsel is also appointed by the President, with consent of the Senate, for a 4-year term. Offices of the Board and the General Counsel are in Washington, D.C. To assist in administering and enforcing the law, the NLRB has established 33 regional and a number of other field offices. These offices, located in major cities in various States and Puerto Rico, are under the general supervision of the General Counsel.

Functions of the NLRB. The Agency has two main functions: to conduct representation elections and certify the results, and to prevent employers and unions from engaging in unfair labor practices. In both kinds of cases the processes of the NLRB are begun only when requested. Requests for such action must be made in writing on forms provided by the NLRB and filed with the proper Regional Office. The form used to request an election is called a “petition,” and the form for unfair labor practices is called a “charge.” The filing of a petition or a charge sets in motion the machinery of the NLRB under the Act. Before discussing the machinery established by the Act, it would be well to understand the nature and extent of the authority of the NLRB.

Authority of the NLRB—Enterprises whose operations affect commerce. The NLRB gets its authority from Congress by way of the National Labor Relations Act. The power of Congress to regulate labor-management relations is limited by the commerce clause of the United States Constitution. Although it can declare generally what the rights of employee are or should be, Congress can make its declaration of rights effective only in respect to enterprises whose operations “affect commerce” and labor disputes that “affect commerce.” The NLRB, therefore, can direct elect ions and certify the results only in the case of an employer whose operations affect commerce. Similarly, it can act to prevent unfair labor practices only in cases involving labor disputes that affect, or would affect, commerce.

What is commerce. “Commerce” includes trade, traffic, transportation, or communication within the District of Columbia or any Territory of the United States; or between any State or Territory and any other State, Territory, or the District of Columbia; or between two points in the same State, but through any other State, Territory, the District of Columbia, or a foreign country. Examples of enterprises engaged in commerce are:

• A manufacturing company in California that sells and ships its product to buyers in Oregon. • A company in Georgia that buys supplies in Louisiana. • A trucking company that transports goods from one point in New York State through Pennsylvania to

another point in New York State. • A radio station in Minnesota that has listeners in Wisconsin.

When the operations of an employer affect commerce. Although a company may not have any direct dealings with enterprises in any other State, its operations may nevertheless affect commerce. The operations of a Massachusetts manufacturing company that sells all of its goods to Massachusetts wholesalers affect commerce if the wholesalers ship to buyers in other States. The effects of a labor dispute involving the Massachusetts manufacturing concern would be felt in other States and the labor dispute would, therefore, “affect” commerce. Using this test, it can be seen that the operations of almost any employer can be said to affect commerce. As a result, the authority of the NLRB could extend to all but purely local enterprises.

The scope of the commerce clause is limited, however, by the first amendment’s prohibition against Congress’ enacting laws restricting the free exercise of religion. Because of this potential conflict, and because Congress has not clearly expressed an intention that the Act cover lay faculty in church-operated schools, the Supreme Court has held that the Board may not assert jurisdiction over faculty members in such institutions.

The Board does not act in all cases affecting commerce. Although the National Labor Relations Board could exercise its powers to enforce the Act in all cases involving enterprises whose operations affect commerce, the Board does not act in all such cases. In its discretion it limits the exercise of its power to cases involving enterprises whose effect on commerce is substantial. The Board’s requirements for exercising its power or jurisdiction are called “jurisdictional standards.” These standards are based on the yearly amount of business done by the enterprise,

or on the yearly amount of its sales or of its purchases. They are stated in terms of total dollar volume of business and are different for different kinds of enterprises. The Board’s standards in effect on July 1, 1990, are as follows:

NLRB jurisdictional standards.

1. Nonretail business: Direct sales of goods to consumers in other States, or indirect sales through others (called outflow), of at least $50,000 a year; or direct purchases of goods from suppliers in other States, or indirect purchases through others (called inflow), of at least $50,000 a year.

2. Office buildings: Total annual revenue of $100,000 of which $25,000 or more is derived from organizations that meet any of the standards except the indirect outflow and indirect inflow standards established for nonretail enterprises.

3. Retail enterprises: At least $500,000 total annual volume of business. 4. Public utilities: At least $250,000 total annual volume of business, or $50,000 direct or in direct outflow or

inflow. 5. Newspapers: At least $200,000 total annual volume of business. 6. Radio, telegraph, television, and telephone enterprises: At least $100,000 total annual volume of business. 7. Hotels, motels, and residential apartment houses: At least $500,000 total annual volume of business. 8. Privately operated health care institutions: At least $250,000 total annual volume of business for hospitals;

at least $100,000 for nursing homes, visiting nurses associations, and related facilities; at least $250,000 for all other types of private health care institutions defined in the 1974 amendments to the Act. The statutory definition includes: “any hospital, convalescent hospital, health maintenance organizations, health clinic, nursing home, extended care facility or other institution devoted to the care of the sick, infirm, or aged person.” Public hospitals are excluded from NLRB jurisdiction by Section 2(2) of the Act.

9. Transportation enterprise, links and channels of interstate commerce: At least $50,000 total annual income from furnishing interstate passenger and freight transportation services; also performing services valued at $50,000 or more for businesses which meet any of the jurisdictional standards except the indirect outflow and indirect inflow of standards established for nonretail enterprises.

10. Transit systems: At least $250,000 total annual volume of business. 11. Taxicab companies: At least $500,000 total annual volume of business. 12. Associations: These are regarded as a single employer in that the annual business of all association

members is totaled to determine whether any of the standards apply. 13. Enterprises in the Territories and the District of Columbia: The jurisdictional standards apply in the

Territories; all businesses In the District of Columbia come under NLRB jurisdiction. 14. National defense: Jurisdiction is asserted over all enterprises affecting commerce when their operations

have a substantial impact on national defense, whether the enterprises satisfy any other standard. 15. Private universities and colleges: At least $1 million gross annual revenue from all sources (excluding

contributions not available for operating expenses because of limitations imposed by the grantor). 16. Symphony orchestras: At least $1 million gross annual revenue from all sources (excluding contributions

not available for operating expenses because of limitations imposed by the grantor). 17. Law firms and legal assistance programs: At least $250,000 gross annual revenues. 18. Employers that provide social services: At least $250,000 gross annual revenues.

Through enactment of the 1970 Postal Reorganization Act, jurisdiction of the NLRB was extended to the United States Postal Service, effective July 1, 1971.

In addition to the above-listed standards, the Board asserts jurisdiction over gambling casinos when these enterprises are legally operated, when their total annual revenue from gambling is at least $500,000.

Ordinarily, if an enterprise does the total annual volume of business listed in the standard, it will necessarily be engaged in activities that “affect” commerce. The Board must find, however, based on evidence, that the enterprise does in fact “affect” commerce.

The Board has established the policy that when an employer whose operations “affect” commerce refuses to supply the Board with information concerning total annual business, the Board may dispense with this requirement and exercise jurisdiction.

Finally, Section 14(c)(1) authorizes the Board, in its discretion, to decline to exercise jurisdiction over any class or category of employers when a labor dispute involving such employees is not sufficiently substantial to warrant the exercise of jurisdiction, provided that it cannot refuse to exercise jurisdiction over any labor dispute over which it would have asserted jurisdiction under the standards it had in effect on August 1, 1959. In accordance with this provision the Board has determined that it will not exercise jurisdiction over racetracks, owners, breeders, and trainers of racehorses, and real estate brokers.

The Act does not cover certain Individuals. In addition to the foregoing limitations, the Act states that the term “employee” shall include any employee except the following:

• Agricultural laborers. • Domestic servants. • Any individual employed by his parent or spouse. • Independent contractors. • Supervisors. • Individuals employed by an employer subject to the Railway Labor Act. • Government employees, including those employed by the U .S. Government, any Government corporation

or Federal Reserve Bank, or any State or political subdivision such as a city, town, or school district. Supervisor defined. Supervisors are excluded from the definition of “employee” and, therefore, not covered by

the Act. Whether an individual is a supervisor for purposes of the Act depends on that individual’s authority over employees and not merely a title. A supervisor is defined by the Act as any individual who has the authority, acting in the interest of an employer, to cause another employee to be hired, transferred, suspended, laid off, recalled, promoted, discharged, assigned, rewarded, or disciplined, either by taking such action or by recommending it to a superior; or who has the authority responsibly to direct other employees or adjust their grievances; provided, in all cases, that the exercise of authority is not of a merely routine or clerical nature, but requires the exercise of independent judgment. For example, a foreman who determined which employees would be laid off after being directed by the job superintendent to layoff four employees would be considered a supervisor and would, therefore, not be covered by the Act; a “strawboss” who, after someone else determined which employees would be laid off, merely informed the employees of the layoff and who neither directed other employees nor adjusted their grievances would not be considered a supervisor and would be covered by the Act.

“Managerial” employees are also excluded from the protection of the Act. A managerial employee is one who represents management interests by taking or recommending actions that effectively control or implement employer policy.

The Act does not cover certain employers. The term “employer” includes any person who acts as an agent of an employer, but it does not include the following:

• The United States or any State Government, or any political subdivision of either, or any Government corporation or Federal Reserve Bank.

• Any employer subject to the Railway Labor Act. NLRB Procedures. The authority of the NLRB can be brought to bear in a representation proceeding only by

the filing of a petition. Forms for petitions must be signed, sworn to or affirmed under oath, and filed with the Regional Office in the area where the unit of employees is located. If employees in the unit regularly work in more than one regional area, the petition may be filed with the Regional Office of any of such regions.

Procedure in representation cases. Section 9(c)(1) provides that when a petition is filed, “the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice,” if the Board finds from the evidence presented at the hearing that “such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.” When there are three or more choices on the ballot and none receives a majority, Section 9(c)(3) provides for a runoff between the choice that received the largest and the choice that received the second largest number of valid votes in the election. After the election, if a union receives a majority of the votes cast, it is certified; if no union gets a majority, that result is certified. A union that has been certified is entitled to be recognized by the employer as the exclusive bargaining agent for the employees in the unit. If the employer fails to bargain with the union, it commits an unfair labor practice.

Procedure in unfair labor practice cases. The procedure in an unfair labor practice case is begun by the filing of a charge. A charge may be filed by an employee, an employer, a labor organization, or any other person. Like petitions, charge forms, which are also available at Regional Offices, must be signed, sworn to or affirmed under oath, and filed with the appropriate Regional Office that is, the Regional Office in the area where the alleged unfair labor practice was committed. Section 10 provides for the issuance of a complaint stating the charges and notifying the charged party of a hearing to be held concerning the charges. Such a complaint will issue only after investigation of the charges through the Regional Office indicates that an unfair labor practice has in fact occurred.

In certain limited circumstances when an employer and union have an agreed-upon grievance arbitration procedure that will resolve the dispute, the Board will defer processing an unfair labor practice case and await

resolution of the issues through that grievance arbitration procedure. If the grievance arbitration process meets the Board’s standards, the Board may accept the final resolution and defer that decision. If the procedure fails to meet all the Board standards for deferral, the Board may then resume processing of the unfair labor practice issues.

An unfair labor practice hearing is conducted before an NLRB administrative law judge in accordance with the rules of evidence and procedure that apply in the U.S. district courts. Based on the hearing record, the administrative law judge makes findings and recommendations to the Board. All parties to the hearing may appeal the administrative law judge’s decision to the Board. If the board considers that the party named in the complaint has engaged in or is engaging in the unfair labor practices charged, the Board is authorized to issue an order requiring such person to cease and desist from such practices and to take appropriate affirmative action.

The 6-month rule limiting issuance of complaint. Section 10(b) provides that “no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made.” An exception is made if the charging party “was prevented from filing such charge by reason of service in the armed forces, in which event the 6-month period shall be computed from the day of his discharge.” It should be noted that the charging party must, within 6 months after the unfair labor practice occurs, file the charge with the Regional Office and serve copies of the charge on each person against whom the charge is made. Normally service is made by sending the charge by registered mail, return receipt requested.

Appeal to the General Counsel if complaint is not issued. If the Regional Director refuses to issue a complaint in any case, the person who filed the charge may appeal the decision to the General Counsel in Washington. Section 3(d) places in the General Counsel “final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints.” If the General Counsel reverses the Regional Director’s decision, a complaint will be issued. If the General Counsel approves the decision not to issue a complaint, there is no further appeal.

Powers of the NLRB. To enable the NLRB to perform its duties under the Act, Congress delegated to the Agency certain powers that can be used in all cases. These are principally powers having to do with investigations and hearings.

Powers concerning investigations. As previously indicated, all charges that are filed with the Regional Office are investigated, as are petitions for representation elections. Section 11 establishes the powers of the Board and the Regional Offices in respect to hearings and investigations. The provisions of Section 11(1) authorize the Board or its agents to:

• Examine and copy “any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question.”

• Issues subpoenas, on the application of any party to the proceeding, requiring the attendance and testimony of witnesses or the production of any evidence.

• Administer oaths and affirmations, examine witnesses, and receive evidence. • Obtain a court order to compel the production of evidence or the giving of testimony.

The Act is remedial, not criminal. The National Labor Relations Act is not a criminal statute. It is entirely remedial. It is intended to prevent and remedy unfair labor practices, not to punish the person responsible for them. The Board is authorized by Section 10(c) not only to issue a cease-and-desist order, but “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.”

Affirmative action may be ordered by the Board. The object of the Board’s order in any case is twofold: to eliminate the unfair labor practice and to undo the effects of the violation as much as possible. In determining what the remedy will be in any given case, the Board has considerable discretion. Ordinarily, its order in regard to any particular unfair labor practice will follow a standard form that is designed to remedy that unfair labor practice, but the Board can, and often does, change the standard order to meet the needs of the case. Typical affirmative action of the Board may include orders to an employer who has engaged in unfair labor practices to:

Examples of affirmative action directed to employers.

• Disestablish an employer-dominated union. • Offer certain named individuals immediate and full reinstatement to their former positions or, if those

positions no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges, and with backpay, including interest.

• On request, bargain collectively with a certain union as the exclusive representative of the employees in a certain described unit and sign a written agreement if an understanding is reached.

Examples of affirmative action directed to unions. Examples of affirmative action that may be required of a union that has engaged in unfair labor practices include orders to:

• Notify the employer and the employees that it has no objection to reinstatement of certain employees, or employment of certain applicants, whose discriminatory discharge, or denial of employment, was caused by the union.

• Refund dues or fees illegally collected, plus interest. • On request, bargain collectively with a certain employer and sign a written agreement if one is reached.

The Board’s order usually includes a direction to the employer or the union or both requiring them to post notices in the employer’s plant or the union’s office notifying the employees that they will cease the unfair labor practices and informing them of any affirmative action being undertaken to remedy the violation. Special care is taken to be sure that these notices are readily understandable by the employees to whom they are addressed.

Special Proceedings in Certain Cases. Special proceedings are required by the Act in certain kinds of cases. These include the determination of jurisdictional disputes under Section 10(k) and injunction proceedings under Section 10(1) and (j).

Proceedings in jurisdictional disputes. Whenever it is charged that any person has engaged in an unfair labor practice in violation of Section 8(b)(4)(D), the Board must hear and determine the dispute out of which the unfair labor practice arises. Section 8(b)(4)(D) prohibits unions from striking or inducing a strike to compel an employer to assign particular work to employees in one union, or in one trade or craft, rather than another. For a jurisdictional dispute to exist, there must be real competition between unions or between groups of employees for certain work. In effect, Section 10(k) provides an opportunity for the parties to adjust the dispute during a 10-day period after notice of the 8(b)(4)(D) charge has been served. At the end of this period if the parties have not submitted to the Board satisfactory evidence that they have adjusted, or agreed on a method of adjusting, the dispute, the Board is “empowered and directed” to determine which of the competing groups is entitled to have the work.

The investigation of certain charges must be given priority. Section 10(1) provides that whenever a charge is filed alleging a violation of certain sections of the Act relating to boycotts, picketing and work stoppages, the preliminary investigation of the charge must be given priority over all other types of cases in the Regional Office where it is filed. The unfair labor practices subject to this priority concerning the investigation are those defined in Section 8(b)(4)(A), (B), or (C), all three subparagraphs of Section 8(b)(7), Section 8(e) and, where appropriate, 8(b)(4)(D), Section 10(m) requires that second priority be given to charges alleging violations of Section 8(a)(3), the prohibition against employer discrimination to encourage or discourage membership in a union, and Section 8(b)(2), which forbids unions to cause or attempt to cause such discrimination.

Injunction proceedings under Section 10(l). If the preliminary investigation of any of the first priority cases shows that there is reasonable cause to believe that the charge is true and that a complaint should issue, Section 10(l) further requires the Board to petition a U.S. district court to grant an injunction pending the final determination of the Board. The section authorizes the court to grant “such injunctive relief or temporary restraining order as it deems just and proper.” Another provision of the section prohibits the application for an injunction based on a charge of violation of Section 8(b)(7) (the prohibition on organizational or recognitional picketing in certain situations) if a charge against an employer alleging violation of Section 8(a)(2) has been filed and the preliminary investigation establishes reasonable cause to believe that such charge is true.

Injunctive relief may be sought in other cases. Section 10(j) allows the Board to petition a Federal district court for an injunction to temporarily prevent any unfair labor practice after a complaint has been issued and to restore the status quo. pending the full review of the case by the Board. This section does not require that injunctive relief be sought, but only makes it possible for the Board to do so in cases when it is considered appropriate.

Court Enforcement of Board Orders—In the U.S. court of appeals. If an employer or a union fails to comply with a Board order, Section 10(e) empowers the Board to petition the U.S. court of appeals for a court decree enforcing the order of the Board enjoining conduct that the Board has found to be unlawful. Section 10(l) provides that any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any appropriate circuit court of appeals. When the court of appeals hears a petition concerning a Board order, it may enforce the order, remand it to the Board for reconsideration, change it, or set it aside entirely. If the court of appeals issues a judgment enforcing the Board order, failure to comply may be punishable by fine or imprisonment for contempt of court.

Review by the U.S. Supreme Court. In some cases the U.S. Supreme Court may be asked to review the decision of a circuit court of appeals, particularly when there is a conflict in the views of different courts on the same important problem.

Conclusion In this material the entire Act has been covered, but, of necessity, the coverage has been brief. No attempt has

been made to state the law in detail or to supply you with a textbook on labor law. We have tried to explain the Act in a manner intended to make it easier to understand what the basic provisions of the Act are and how they may concern you. If it helps you to recognize and know your rights and obligations under the Act, and aids in determining whether you need expert assistance when a problem arises, its purpose will have been satisfied. More than that, the objective of the Act will have been furthered.

The objective of the National Labor Relations Act, to avoid or reduce industrial strife and protect the public health, safety, and interest, can best be achieved by the parties or those who may become parties to an individual dispute. Voluntary adjustment of differences at the community and local level is almost invariably the speediest, most satisfactory, and longest lasting way of carrying out the objective of the Act.

Efforts are being made in all our Regional Offices to increase the understanding of all parties about what the law requires of them. Long experience has taught us that when the parties fully understand their rights and obligations, they are more ready and able to adjust their differences voluntarily. Seldom do individuals go into a courtroom, a hearing, or any other avoidable contest, knowing that they are in the wrong and that they can expect to lose the decision. No one really likes to be publicly recorded as a law violator (and a loser too). Similarly, it is seldom that individuals refuse to accept an informal adjustment of differences that is reasonable, knowing that they can obtain no better result from the formal proceeding, even if they prevail.

The consequences of ignorance in these matters—formal proceedings that can be time consuming and costly, and that are often followed by bitterness and antagonism—are economically wasteful, and usually it is accurate to say that neither party really wins. It is in an attempt to bring about more widespread awareness of the basic law and thus help the parties avoid these consequences that this material has been prepared and presented as a part of a continuing program to increase understanding of the National Labor Relations Act.

NATIONAL LABOR RELATIONS BOARD DIRECTORY*

Region 1 10 Causeway Street—6th Floor Boston MA 02222–1072 (617) 565–6700

Region 2 26 Federal Plaza—Room 3614 New York NY 10278–0104 (212) 264–0300 Region 3 111 West Huron Street—Room 901 Buffalo NY 14202–2387 (716) 551–4931 Region 4 615 Chestnut Street—7th Floor Philadelphia PA 19106–4404 (215) 597–7601 Region 5 The Appraisers Store Building 103 South Gay Street—8th Floor Baltimore MD 21202–4026 (410) 962–2822 Region 6 1000 Liberty Avenue—Room 1501 Pittsburgh PA 15222–4173 (412) 395–4400

Region 7 477 Michigan Avenue—Room 300 Detroit MI 48226–2569 (313) 226–3200 Region 8 1240 East 9th Street—Room 1695 Cleveland OH 44199–2086 (216) 522–3716 Region 9 550 Main Street—Room 3003 Cincinnati OH 45202–3271 (513) 684–3686 Region 10 Harris Tower—Suite 1000 233 Peachtree St., NE Atlanta GA 30303–1531 (404) 331–2896 Region 11 Republic Square, Suite 200 4035 University Parkway Winston-Salem NC 27106–3325 (910) 631–5201 Region 12 South Trust Plaza—Suite 530 201 East Kennedy Boulevard Tampa, FL 336025824 (813) 228–2641

Region 13 200 West Adams Street—Suite 800 Chicago IL 60606–5208 (312) 353–7570

Region 14 1222 Spruce Street, Room 8.302 St. Louis MO 63103–2829 (314) 539–7770 Region 15 1515 Poydras Street—Room 610 New Orleans LA 70112–3723 (504) 589–6361 Region 16 819 Taylor Street—Room 8A24 Fort Worth TX 76102-6178 (817) 978-2921 Region 17 8600 Farley Street—Suite 100 Overland Park KS 66212–4677 (913) 967–3000

Region 18 330 Second Avenue South Minneapolis MN 55401–2221 (612) 348–1757

Region 19 915 2nd Avenue—Room 2948 Seattle WA 98174–1078 (206) 220–6300 Subregional Office 36—Region 19 601 SW 2nd Avenue–Suite 1910 Portland OR 97204–3170 (503) 326–3085 Region 20 901 Market Street–Room 400 San Francisco CA 94103–1735 (415) 356–5130 Subregional Office 37—Region 20 300 Ala Moana Boulevard—Room 7-245 Honolulu HI 96850–4980

(808) 541–2814

Region 21 888 Figueroa Street—9th Floor Los Angeles CA 90011–5449 (213) 894–5200

Region 22 20 Washington Place—5th Floor Newark, NJ 07102–3110

Region 24 La Torre de Plaza, Suite 1002 525 F. D. Rossevelt Avenue San Juan PR 00918–1002 (787) 766–5347 Region 25 575 N. Pennsylvania Street—Room 238 Indianapolis IN 46204–1577 (317) 226–7381 Region 26 1407 Union Avenue—Room 800 Memphis TN 38104–3627 (901) 544–0018 Region 27 600 17th Street—7th Floor, North Tower Denver CO 80202–5433 (303) 844–3551 Region 28 234 North Central Avenue—Suite 440 Phoenix AZ 85004–2212 (602) 379–3361

Region 29 One Metro Tech Center (North) Jay Street and Myrtle Avenue—10th Floor Brooklyn NY 11201–4201 (718) 330–7713 Region 30 310 West Wisconsin Avenue—Suite 700 Milwaukee WI 53203–2211 (414) 297-3861 Region 31 11150 West Olympic Blvd.—Suite 700 Los Angeles CA 90064–1824 (310) 235–7352 Region 32 1301 Clay Street—Room 300N Oakland CA 94612–5211 (510) 637–3300

Region 33 300 Hamilton Boulevard—Suite 200 Peoria IL 61602–1246 (309) 671–7080 Region 34 280 Trumbull St.—21st Floor Hartford CT 06103–3503 (860) 240–3522

For addresses and telephone numbers of various subregional offices please consult your local telephone directory or our web site at www.nlrb.gov.

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Q2/Should Labor Defend Worker Rights as Human Rights_ A Debate.pdf

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Should Labor Defend Worker Rights as Human Rights? A Debate Jay Youngdahl e Youngdahl Law Firm, P.C.

Lance A. Compa Cornell University, [email protected]

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Should Labor Defend Worker Rights as Human Rights? A Debate

Abstract @e authors debate the relative merits and drawbacks of deAning the labor movement under the umbrella of human rights, and the virtues of the rights of the individual versus the solidarity of the community.

Keywords : labor rights, labor standards, International Labor Organization, ILO, human rights, wages

Disciplines Human Rights Law | International and Comparative Labor Relations

Comments Suggested Citation Youngdahl, J. & Compa, L. (2009). Should labor defend worker rights as human rights? A debate [Electronic version]. New Labor Forum, 18(1), 31-37. hBp://digitalcommons.ilr.cornell.edu/articles/240/

Required Publishers Statement Copyright by the Joseph S. Murphy Institute, CUNY. @is debate appears in New Labor Forum’s Winter 2009 issue. To subscribe to New Labor Forum, please visit www.newlaborforum.org.

@is article is available at DigitalCommons@ILR: hBp://digitalcommons.ilr.cornell.edu/articles/240

http://www.newlaborforum.org

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The Declaration of the Rights of Man and of the Citizen (adopted by France’s National Assembly in 1789) underpins much of contemporary human rights law.

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SINCE THE PUBLICATION OF UNFAIR ADVANTAGE: WORKERS’ FREEDOM OF ASSOCIATION in the United States under International Human Rights Standards1 by Human Rights Watch, the idea of framing labor struggles as human rights issues has come to occupy center stage within the conversation among serious advocates of the revitalization of the labor movement. The AFL-CIO has underwritten a human rights non-governmental organization (NGO), American Rights at Work, and now seems to give as much attention to “International Human Rights Day” as it does to May Day or Labor Day.2

SOLIDARITY FIRST Labor Rights Are Not the Same as Human Rights

A human rights approach, it is urged, facilitates partnerships with human rights allies, works well with the inexorable inter- nationalization of labor struggles, allows the “naming, blaming, and shaming” of labor abusers, and is more responsive to the cur- rent political and cultural zeitgeist than tra- ditional labor arguments. Lance Compa, the principle author of the Unfair Advantage re- port, argues that a human rights reframing will “bring authoritativeness to labor dis- course that trade unionists can never achieve.”3

While the motives of those advocating a human rights approach are laudable, the reliance on reframing labor struggles as first and foremost human rights struggles is misplaced. It is not hy- perbole to say that the replacement of solidarity and unity as the anchor for labor justice with “in- dividual human rights” will mean the end of the union movement as we know it.4 This is true tac- tically, strategically, and philosophically. Rights discourse individualizes the struggle at work. The union movement, however, was built on and nourished by solidarity and community. The powerless can only progress their work life in

By Jay Youngdahl

*The author wishes to acknowledge the assistance of his associate, Stephanie Cogen, with the research for this article.

ISSN: 1095-7960/08 print

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concert with each other, not alone. Fighting in- dividually, workers lose; fighting together, work- ers can win. There is a reason why the lyrics to “Solidarity Forever” read: “what force on earth is weaker than the feeble strength of one? But the union makes us strong.”5

A complete turn toward the individual rights approach by the labor movement will sig- nal the surrender of the fight for workplace soli- darity and the unique and crucial position that our movement has occupied over the last 100 years in the permanent struggle for justice for those at work.6 Without the primacy of solidarity, the union movement is little more than a politi- cal grouping along the lines of the environmen- tal movement or the American Association of Retired Persons (AARP), and will be forced to rely on tactics like direct mail solicitation and rev- enues from labor banks and insurance plans. The concerns of seniors and environmental issues are extraordinarily important. But a labor movement which mimics them is not the labor movement that has been the force for 20th century social change in this country. It is not the same move- ment as that which brought us the weekend or that shut down the Port of Oakland in May 2008 to call for an end to the war in Iraq.

Many in the labor movement find this re- framing debate to be abstract and a waste of time.7 It is not. Those working on the ideological underpinnings of the labor movement are to be

commended. But, the move to elevate individual rights over solidarity has a normative compo- nent. That is, any reframing is not simply a prag- matic move; it controls how we think and how we fight. Words and ideas matter; the effect of “right to work” laws is but one obvious example.

In thinking of the effects of labor’s strategic decisions, consider the issue of “meat and potatoes” unionism. For much of the history of the American labor movement, a debate has raged over the proper role of the movement in the poli- tics of the country. The dominant strain has been that workers should focus on what is closest to them, their wages and benefits, and pay less attention to the larger political and systemic trends.

While electoral activity has increased as union’s organizational success has declined, most of labor continues to stress this strategic ideology. “Meat and potatoes” is a seductive way to organize, and many of the higher density unions stress this ap- proach; yet the result of its primacy is that work- ers are influenced ideologically with a resulting difficulty in mounting movements to confront the source of their oppression systematically, or to understand why “an injury to one is an injury to all.” Constant battles among building trades and rail unions, to take just two sectors, and a mem- bership often out of step with the new positions of labor’s leaders on immigration, are the result. Elevating human rights to the dominant position within labor ideology will eviscerate support for the common concerns of all workers that is the keystone of labor solidarity. Thus, the issue of in- dividual rights versus solidarity is a crucial dis- cussion, as its ramifications will penetrate the consciousness and actions of workers every- where.

Interestingly, this same debate over which should be primary, individual rights or of the sol- idarity of community, took place in the civil

32 • New Labor Forum J. Youngdahl

The replacement of solidarity as the anchor for labor justice with “individual human rights” will mean the end of the union movement as we know it.

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rights movement 40 years ago. Certain activists and theologians, such as Howard Thurman, ar- gued for a greater emphasis on individuality than they believed could be found in the “beloved community” advocated by Martin Luther King. Yet, it was through this “beloved community” that King was able to play the role that he did in the struggle for civil rights and to make the links that undergirded his move, shortly before his murder, to elevate his opposition to the war in Vietnam, strengthening the link be- tween the two struggles.8

Philosophically, the human rights approach is part of a move to “atomism,” which the Canadian philosopher Charles Taylor describes as the theory of advocating “a vision of society as in some sense constituted by individuals for the fulfillment of ends which were primarily individual.” Atomism implies “the priority of the individual and his rights over society,” which is the fundamental flaw of current human rights ideology and practice. Taylor writes:

Unions are all about obligations to our fel- low workers. The perceptive political scientist, C.B. Macpherson, argued that a narrowly selfish and rationalistic view of individualism makes it impossible to find a valid theory of obligation to each other in a system that stresses possessive in- dividualism. He writes, “[t]he difficulties . . . [are in the] conception of the individual as essentially

the proprietor of his own person or capacities, owing nothing to society for them.”10 Historically, the labor movement has stood in opposition to this philosophy.

Labor unions are communities in which tremendous nascent power resides. Contempo- rary liberal theory and cultural practice, out of which the rights reframing emanates, has deval- ued the role of solidarity, and diminished the cru- cial component of community in movements for

social change.11 Philosophically, in contrast to an individualistic focus, for all but the most advan- taged, entering into a community provides moral meaning. Participation in a community of strug- gle, such as a strike or job action, can lead to prac- tical answers to existential anxieties, as well as to economic concerns. A conception of unity and solidarity as the intentional ideology of labor communities promotes a strong ethical founda- tion in a world in which globalized capitalism only offers a “dog eat dog” mentality.12 It is in such communities that workers can find the passion and enthusiasm necessary for the movement of the less powerful against the institutions that strive to divide resources in a manner favorable to the elite.

To be fair, advocates of the human rights ap- proach argue that the freedom to associate and to collectively bargain are human rights and that advocating this approach simply means that these associational freedoms should be put on par with other rights contained in the human rights dec- larations and conventions. Solidarity, it seems, will come from individual agreements to associ- ate with others. Trying to shoehorn solidarity into

Unions are all about obligations to our fellow workers.

Solidarity First New Labor Forum • 33

Theories which assert the primacy of rights are those which take as the fundamental, or at least a fundamental, principle of their political theory the ascription of certain rights to individuals and which deny the same status to a principle of be- longing or obligation, that is, a principle which states our obligation as men [sic] to belong to or sustain society, or a society of a certain type, or to obey authority or an authority of a certain type.9

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this framework will not work, however. While it may be possible to characterize the freedom to associate and to enter into solidarity with others as an individual right, only indirectly in this re- framing is the loss of rights for “another” the loss

of rights for “me.” Thinking of rights as individ- ual bundles that we carry with us leaves workers unprepared to deal with power. Maybe workers can speak truth to power acting individually, but stressing individual rights eviscerates the ability to act with others against oppressive power.

To be sure, rights language dominates the discourse today. It is difficult to talk about justice without using the term “rights.”13 Yet, rights dis- course, while seductive to allies, the press, and as a kickstart to organizing campaigns, robs the movement of the power to actually unite. Those within the human rights community are quite explicit about the ascendancy of individual rights and the denigration of collective action.14 Many within it be- lieve that invidualism and the market are ahistorical, and that collective rights are synonymous with “savage outbreaks of ethnic racial and religious violence.”15 Militant labor struggles are sure to be placed in the same category. Even Kenneth Roth of Human Rights Watch, the publisher of Unfair Advantage, has frankly admitted that human rights argu- ments are of limited efficacy when “distributive justice” is the goal.16 Human rights arguments are ineffective, he admitted, “in the amorphous realm of costs and benefits.” Struggles over work-

place justice take place in exactly this “amorphous realm,” however. Adequate wages and benefits in a livable workplace do not feel so amorphous to those workers involved.

In the workplace, the rights approach deval- ues the decisions that workers make when they consider how much of them- selves and their families to put on the line in a workplace struggle. Why should an Air Line Pilots Association (ALPA) pilot care about the contract struggle of Ara- mark food services workers? It is hard to make a case in the human rights frame- work that the individual pilot making up-

wards of $200,000 a year should put herself out on behalf of the food service worker, unless pure altruism is the motivation. If the question is framed and understood within the concept of solidarity and “an injury to one is an injury to all,” however, the reality and the response is different.

Thirty years ago, I was a letter carrier in a low-income neighborhood in Houston. During my time at the post office, many battles were fought, both large and small. The workers in our station hung together as a community, in work- place struggles, and in situations in which a

member of our group needed personal assis- tance. One of my best friends at work owned a tiny convenience store near his mail route; his store did not generate enough of a profit for him to leave his postal job, but he hoped that some day it, and other businesses he wanted to start, would. We would often meet at the Dairy Queen after running our mail routes and talk about the

Thinking of rights as individual bundles leaves workers unprepared to deal with power.

[Human] rights discourse robs the movement of the power to actually unite.

34 • New Labor Forum J. Youngdahl

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battles for dignity and economic advancement at the post office and in society. I was convinced that a larger movement of workers was possible; he was less certain. He would say to me, “if I can get out of here I am gone.” He believed he had op- tions and abilities that many of our co-workers did not; they could never leave the steady pay- checks. He knew he had a greater ability to exer- cise his “rights.” Yet, even given these feelings he stood with us when problems arose at work be- cause he understood the importance of commu- nity and solidarity. What does a rights-based approach say to the worker who is not sure whether moving in solidarity with others will ad- vance her personal good, as often it does not, at least in the short run? Should one care for others solely for altruistic reasons? When workers are facing a powerful employer and are considering putting their livelihood on the line, only a focus on solidarity can answer these philosophic yet in- tensely practical questions; an individual rights- based approach cannot.

Although it is hard to argue against the use of any and all tactics and arguments for union re- vitalization, the practical future of the human rights approach is not as bright as advocates might hope.17 Rights do not fall from the sky nor are they contained in the human genome; they are the product of the political forces at the time.18 U.S. courts are hostile to the idea of collective rights, making the associational rights argument of human rights theorists unlikely to succeed. Even the conservative law professor Mary Ann Glendon has observed that recent judicial deci- sions on workplace matters are opposed to the “underlying assumption of our labor legislation that an individual might willingly agree to sub- ordinate her own interests to some extent by cast- ing her lot together with fellow workers in pursuit of common ends which are frequently, but not exclusively, economic.”19 The U.S. government, along with many other countries, refuses to rat-

ify labor-related conventions of the International Labour Organization (ILO) even during times of “labor-friendly” Democratic administrations. The U.S. courts balk at applying human rights standards found in international law and inter- national courts, and are unlikely to do so anytime soon.20

Even in the best trade agreements and in- ternational forums and conventions, labor rights advocates have been unable to find ways to effec- tively enforce standards contained within them. A glaring example can be seen in the use of asso- ciational rights arguments against the move by the enemies of labor in the Oakwood Healthcare decision to defeat unionization by classifying wide swaths of American workers as “supervi- sors,” unprotected by the National Labor Rela- tions Act (NLRA).21 According to the dissent, the result of the holding of this case may be that by 2012 almost 34 million people, 23.3 percent of the workforce, could lose the scant protections still available under the NLRA. American union lawyers filed a complaint against this decision with the ILO, using human rights-based “core labor standards” arguments that the decision was a blatant denial of the freedom of association for these workers. The ILO decision was mixed at best, despite the rosy face put on it by many in labor; the U.S. Chamber of Commerce was even able to declare victory when the ILO decision was announced.22 It seems that even within these core labor standards as interpreted by the most labor-friendly international tribunal, many “su- pervisors” can be denied that basic human right, the ability to freely associate.

Strategically, those who oppose labor frame the workplace as one where each worker is an in- dividual in opposition to other workers. An overemphasis on human rights in the labor con- text plays into their hands. Employers have made much of their ability to exercise their speech and property rights at work23; it is unclear how a

Solidarity First New Labor Forum • 35

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rights-based approach to labor could limit these employer rights. The current anti-union National Labor Relations Board (NLRB) is masterful at using rights arguments to destroy workplace jus- tice; open any recent decision of the NLRB to see how the concept of rights is being used to guar- antee employer victories and union defeats. To take just one example, in approving the action of an employer that repudiated a union contract, the NLRB majority in Nott Co. held that “The Board has followed a restrictive policy in regard to ac- cretion because it forecloses the employees’ basic right to select their bargaining represen- tative.”24 One of the unresolved issues of the rights movement, in all environ- ments, is how to balance opposing sets of rights. There is little chance that we will win this battle in the labor context in this country anytime soon.25

In conclusion, six years ago in this journal, Nelson Lichtenstein wrote, “[t]he eclipse of trade unionism is not just one of declining numbers, bargaining leverage, and po- litical clout. It has had a moral and ideological di- mension as well.”26 Today, labor is in crisis, social movements are in ideological disarray, and ex-

treme individualism has caused pain throughout the world. The only way for unions to success- fully act in response is to revitalize the primacy of solidarity, for themselves and for the leadership and direction that they can offer to all. People are crying out for ideas and solutions. With solidar- ity at the forefront, the union movement can powerfully and productively speak and act in re- lation to this economic and ideological system which divides, isolates, and oppresses. Among the social movements, only the union movement has a realistic chance of playing this leading role.

While the human rights advocates in labor should be saluted for working on an ide- ology for revitalization, the rights approach is the wrong way for the movement of the work- ing-class to proceed. ■

An overemphasis on human rights in the labor context plays into the hands of those who oppose labor.

36 • New Labor Forum J. Youngdahl

1. Lance A. Compa, Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards, Human Rights Watch, (August 2000).

2. For example, see this post on a 2007 AFL-CIO blog concerning a Working People’s Summit. “The summit opens on International Human Rights Day (Dec. 10), a time when U.S. unions traditionally mobilize to restore the freedom to join unions.” Available at http://blog.aflcio.org/2007/ 08/13/a-working-peoples-global-summit (emphasis added).

3. Lance Compa, “Labor’s New Opening to International Human Rights Standards,” Working USA: The Journal of Labor and Society 11 (March 2008): 99, 116.

4. Many will reply that we have already seen the end of the labor movement as we know it. Or, alternatively, many say that even if we have not, this is an unstoppable

conclusion, given the array of forces in the workplace today. I remain optimistic, however.

5. “Solidarity Forever,” written by Ralph Chaplin.

6. Maybe the best we will be able to hope for is “solitarily,” the word coined by The Colbert Report regarding individuals who sit in front of their computer cyberly exercising their “rights” with others.

7. Those who take this position argue that anything taking us away from day to day organizing is counterproductive. As one who has heard the argument against reflection for the past 40 years while our movement has steadily shrunk, I am unimpressed. The importance of a discussion in labor has recently been made by several unions and commenta- tors. See, e.g., Bill Fletcher, Jr. and Fernando Gaspasin, Solidarity Divided, University of California Press (2008).

8. See Walter Earl Fluker, “They Looked for a City: A Comparison of the Idea of Community

Notes

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in Howard Thurman and Martin Luther King, Jr.,” The Journal of Religious Ethics 18 (Fall 1990).

9. Charles Taylor, Philosophy and the Human Sciences—Philosophical Paper 2, Cambridge University Press (1985): 187-210.

10. C.B. Macpherson, The Political Theory of Possessive Individualism, Oxford University Press (1962): 3.

11. Here, advocates of “post-modern identity- based organizing” overlap with the individual human rights advocates. See, e.g., Maria L. Ontiveros, “A New Course for Labour Unions: Identity-Based Organizing as a Response to Globalization,” and Michael Selmi and Molly S. McUsic, “Difference and Solidarity: Unions in a Postmodern Age,” in Joanne Jonathan, Richard Michael Fischl, and Karl Klare, eds., Labour Law in an Era of Globalization, Oxford University Press (2002). The time for solidarity and the willingness to deemphasize a part of oneself for the benefit of others has seemingly past, the argument goes. Influenced by Foucault, anti-essentialism, and other post-modern doctrines, this stress on radical individualism promotes and fetishizes the “self.” Of course, particular factors, such as race, gender, ethnicity, and religion are integral parts of labor struggles. In fact, most of the successful labor struggles with which I have been involved in the American South and Southwest have involved a “community of identity” component along with the workplace dimension. However, advocates for workers must recognize that the post-modern mantra of unencumbered choice combined with an overinflated view of the self that celebrates differences rather than workplace commonalities is sapping the ability of people to unite around areas of common concern.

12. Gunter Grass wrote that “the concept of ‘solidarity’ is relegated to the dictionary’s list of foreign words.” “The Gravest Generation,” The New York Times, May 7, 2005.

13. My guess is that for those allies of labor in academia, the rights approach makes it easier to interact with students who have had little exposure to the labor movement or the idea of solidarity, but are ardent advocates of human rights for all.

14. As an example of the focus on individual rights as primary over solidarity and collective rights, among the major human rights treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR is a document that emphasizes the rights of individuals which can easily be held by individuals, such as the right to vote, the right to life, the right to liberty and security of person. The ICESCR covers rights that are more likely to be exercised in groups, such as the right to unionize, rights of the family, rights to education, and the right to take part in cultural life. At present, the ICCPR is a vibrant document on the world stage, the ICESCR nearly moribund.

15. See, for example, Henry J. Steiner and Philip

Alston, International Human Rights in Context, 2nd ed., Oxford University Press (2000): 365.

16. Kenneth Roth, “Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization,” Human Rights Quarterly 26 (2004): 63. His discussion of the inability of his organization to fight for workplace safety and health issues for child laborers is especially instructive.

17. Nearly six years ago, the historian Nelson Lichtenstein wrote of the incompatibility of the rights approach and the cause of unionism, noting “an inverse relationship [that] may well link the decline of unionism and the rise of 1960s-1970s rights consciousness.” Nelson Lichtenstein, “The Rights Revolution,” New Labor Forum 12- 1 (2003): 68.

18. “Organization rights are granted to workers by the same authority, the National Government, that preserves property rights.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). To quote the human rights authors Steiner and Alston, “Rights are no more determinate in meaning, no less susceptible to varying interpretations and disputes among states, than any other moral, political or legal conception.” See supra note 15. In response, some respected rights advocates argue that social ethics should come before rights and thus foreclose interpretations of the rights that are contrary to such ethics. See Amartya Sen, “Work and Rights,” International Labour Review 139, No. 2 (2000): 119-128. This is yet to be the operative view, however.

19. Mary Ann Glendon, Rights Talk, Free Press (1991).

20. For a taste of the current U.S. Supreme Court thinking on this issue, see Medillin v. U.S., 552 U.S. _ (2008).

21. Oakwood Healthcare, 348 NLRB No. 37 (2006). 22. See “Decision of the Committee on Freedom

of Association of the ILO,” March 19, 2008. The U.S. Chamber of Commerce called it “good and balanced.” Available at http://www.chamberpost.com/2008/03/ us-labor-law-vi.html/.

23. Earlier this year, in a case filed by Smithfield Foods against the UFCW and other unions, a federal judge ruled against the unions on a pre-trial motion, “the right to recognize (or not) a union as bargaining representative is among the most valuable and important of rights possessed by business owners.” Smithfield Foods et al. v. UFCW et al., N. 3:07CV641 (E.D. Va.) (Memorandum Opinion filed May 30, 2008).

24. Nott Co., 345 N.L.R.B. No. 23 (2005) (emphasis added).

25. The majority judicial view of property rights should make this clear to all. E.g., Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1992). Even the basic human rights documents, such as the ICCPR, explicitly state that the exercise of associational labor rights may be restricted for the “protection of the rights and freedoms of others.” ICCPR, Article 22 (2).

26. Nelson Lichtenstein, supra note 28, at 68.

Solidarity First New Labor Forum • 37

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The phrase “individual human rights” does not appear in the 2000 Human Rights Watch Unfair Advantage report, nor in its 2005 meatpacking report, nor in its 2007 Wal-Mart report. Traditionalists still argue the distinction, but contemporary human rights analysis has moved past the sharp di- chotomy between individual rights and col- lective rights.

The Universal Declaration of Human Rights (UDHR), the textual foundation of the modern human rights movement, em- braces freedom of association and the right to form unions alongside rights to a living wage, decent working conditions, and even paid vacations. The fact that the UDHR gave rise to two separate covenants, one civil and political and the other economic and social, was more a reflection of Cold

War posturing between East and West than one of analytical distinctions.

The objection still is made that human rights advocacy leads to “atomization,” as Youngdahl points out. But the stronger ar- gument now is that individuals live in an in- tricate web of relationships—personal, economic, cultural, juridical, institutional, and more—where the exercise of individual rights takes place. Individual rights can only be fulfilled in this social framework.

The right to organize does not exist in a vacuum. Workers exercise their right to or- ganize for a purpose: to enable them to fight for collective advance in a way they cannot do individually. As Jim Atleson has put it:

JAY YOUNGDAHL MAKES A VALUABLE CONTRIBUTION TO DISCUSSIONS AMONG LABOR advocates about how to revitalize trade unionism with his case against a “workers’ rights are human rights” reframing focus for the U.S. labor movement. But I think it’s a case for using a human rights frame carefully and strategically, not for ditching it.

SOLIDARITY AND HUMAN RIGHTS A Response to Youngdahl

By Lance Compa

ISSN: 1095-7960/08 print

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Youngdahl calls for “solidarity, not human rights” and “solidarity, not meat and potatoes” as guiding principles for the labor movement. What we really need is a skillful, strategic interweaving of these strands into a springboard for labor revitalization. Respect- ing individual union members’ rights should not weaken solidarity. Individual rights and solidarity are mutually reinforcing. Human Rights Watch recognized this seamlessness of workers’ rights in its Unfair Advantage report, with an extensive discussion of secondary boycotts as an important exercise of freedom of association under international human rights principles.

The problem with making soli- darity a sole priority is taking it to a logical conclusion. China justifies its state union monopoly as one serving the collective good. In Mexico, the “exclusion clause” in labor contracts (their term for a closed shop) lets unions expel dissident members, and the worker thereby gets fired. Mexico’s corporatist unions justify the exclusion clause citing the need for soli- darity in the face of employer power, but it is more often a way to destroy independent unionism. Making rights subordinate to soli- darity starts a slippery slope that can end in rights falling off a cliff.

I do plead guilty to a belief in the Western individual rights tradition. If I had to choose

between civil and political rights versus eco- nomic and social rights, I would choose the first. I used to call this bourgeois liberalism, but seeing what damage can be done to people in the name of the collective good gives cau- tion now. The point is not to choose, but to combine.

NOT “EITHER-OR”

IKNOW ABOUT BOOKER T. WASHINGTON ANDhis promotion of individual education asthe answer to the race question. I am not familiar with Howard Thurman as a foil to Martin Luther King’s “beloved community,” but I don’t think that “either-or” is the right way to frame the debate. All social movements contain a bundle of animating forces, both individual and solidaristic.

“I Am A Man” was just as important a slogan as “We Shall Overcome” and “Black Power” for the civil rights movement. In the same way, “Workers’ Rights are Human Rights” can join “Solidarity Forever” as leit-

motifs for the labor movement. Daniel Web- ster hit the right note in his famous 1830 speech foreshadowing the civil war: “Not lib- erty, then union. Liberty and union, now and forever, one and inseparable.” We should not have to choose between human rights versus solidarity as the touchstone of an effective labor movement. We can advocate both, in- sisting that they go hand-in-hand.

The fact that anti-labor forces appropri- ate “rights talk” doesn’t mean we should leave

Individual rights and solidarity are mutually reinforcing.

Solidarity and Human Rights New Labor Forum • 39

The recognition and protection of collective action is critical to the advancement of many kinds of rights, especially work-related rights. These rights are generally stated in individual terms, but all have a collective dimension. Many rights are meaningful only when exercised in a collective manner or, at least, can only be effec- tively achieved, recognized, and enforced in a collective manner.1

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the field. This is contested terrain. A look at the “human rights” claims of anti-labor groups, like those promoting “paycheck pro- tection” and “right-to-work,” exposes their hypocrisy. The “paycheck protection” crowd just wants to destroy workers’ exercise of as- sociational rights in the political arena. Con- trary to its claimed mission of promoting individual workers’ freedom from union dues, the National Right to Work Committee de- votes most of its efforts to attacking trade unions and the very idea of workers’ rights to organize and to bargain collectively.

The Committee gave away the ghost in a boastful article about helping to decertify the United Auto Workers (UAW) at the big Saint-Gobain (formerly Norton Abrasives) plant in Worcester, Massachusetts in 2005. The group characterized its role in the decertifica- tion process not as one addressing mandatory dues payments—management had not agreed to such a provision in bargaining (manage- ment must agree to require dues payments by non-members)—but as one by which “em- ployees will be free from union monopoly control over terms and conditions of employ- ment. Workers can now be rewarded on their individual merit.”2

This statement exposes the real mission of the National Right to Work Com- mittee. It’s not about individual rights, it’s about individual “merit,” a code word for let- ting the market (and employer favoritism)

trump collective bargaining. Under a cover of concern about compulsory union dues, the Committee attacks workers’ freedom of asso- ciation at its very core, seeking to destroy the representational role of workers’ chosen unions.

We should fight to gain ground for our concept of human rights, not cede it by saying that human rights talk doesn’t get us anywhere so let’s just do solidarity forever. Yes, the union makes us strong. But we have to be open-eyed about the balance of forces and the defensive position in which organized workers find

themselves. “Union power” is not a winning slogan in a political climate polluted by anti-labor propaganda and biases. Workers need allies, and human rights framing and arguments can help build alliances.

By developing and using human rights advocacy, the labor movement is not “going over” to an individualistic

frame. Labor’s turn toward human rights has not been a one-way thrust. The labor move- ment is drawing the human rights community its way, too. Human rights groups that for- merly stood apart from labor struggles, view- ing them not as human rights concerns but as institutional tests of strength, are now com- mitted to promoting workers’ rights.

We should not undervalue human rights activists’ move toward greater under- standing, sympathy, and solidarity with workers’ struggles. They add valuable re- sources and commitments to labor’s tradi- tional allies in civil rights, women’s interest groups, and other organizations. One exam- ple is the U.S. Human Rights Network, 200 national, regional, and local groups active in social justice organizing efforts whose mis- sion statement says:

40 • New Labor Forum L. Compa

Making rights subordinate to solidarity starts a slippery slope that can end in rights falling off a cliff.

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Take a look at the Network’s member or- ganizations. These are important allies for a labor movement looking for revitalization strategies.3

This is not to say that the human rights case is strictly utilitarian. Recognizing the im- portance and honoring the dignity of every individual union-represented worker should be the foundation of unions that would not devolve into top-down un- responsive bureaucracies. Not that every individual gets his or her way. Trade unions by definition reconcile, compromise, and sacrifice individual interests to advance the interest of the group. The important thing is that these reconciliations, compromises and sacrifices be fashioned democratically.

I think union members’ instinct is to sup- port solidaristic results, bringing up those with the weakest individual bargaining power rather than letting those with the strongest

power put more distance between themselves and the rest. It’s not automatic; leadership is important, and so is the basic philosophy of the union.

In my earlier life as a union negotiator with the United Electrical, Radio and Machine Workers of America (UE) and the Newspaper Guild, local union leaders tended to come from higher-skilled ranks (skilled trades peo- ple in the UE; reporters and editors in the Guild) because of the same qualities that helped them become highly skilled. But they usually pushed for straight-dollar wage in- creases rather than percentage raises because they altruistically wanted to help the assem- bly-line workers and the telephone service employees in advertising and circulation, and understood that the union would be stronger by bringing up the bottom, not further re- warding the top.

Democratic and solidaristic values and his- tories infused these unions. I concede that these values are not always prevalent in the labor movement. The proliferation of two-tier con- tracts is evidence enough of that, as Ken Jacobs’s piece in this volume discusses. Actually, these val- ues are not always found even in some locals of the UE and the Guild. Unions are complex or- ganisms and not all elements are always going in the same direction.

Nonetheless, the historical arc of labor or- ganization keeps moving toward wage com- pression, equal pay for work of equal value, and equal benefits, bringing up the bottom at a faster pace than advancing the top. Some

Workers need allies and human rights arguments can help build alliances.

Solidarity and Human Rights New Labor Forum • 41

At this moment in history the notion of ap- plying a universal human rights framework to the United States seems to be striking a chord with activists around the country. Those work- ing for social justice in the U.S. who have been exposed to this approach are finding that a human rights umbrella offers promising answers to the lingering doubts they have long held about the U.S. and the ability of domestic single-issue movements—often working in isolation—to cre- ate long-term change. Full U.S. compliance with universal human rights standards will require the development of a broad-based, democratic movement that is dedicated to the long-term goal of transforming U.S. political culture. The con- solidation of this base and the development of a cadre of human rights activists from these com- munities will provide the foundation for an ex- panded effort to build a popular base of support across all sectors of U.S. society.

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unions that went to two-tier contracts suc- ceeded in reversing them when they could. Trade unionists may not instinctively articu- late their motives as human rights-based, but they are indeed reflecting a sense of the dig- nity of less-skilled workers.

HUMAN RIGHTS AND ECONOMIC GAIN

WORKERS ARE EMPOWERED IN CAMPAIGNSwhen they are themselves convinced—and convincing the public—that they are vindicating their fundamental human rights, not just seeking a wage increase or more job benefits. Employers are thrown more on the defensive by charges that they are violating workers’ human rights. The larger society is more responsive to the notion of trade union organizing as an exercise of human rights rather than economic strength.

Jay Youngdahl objects that the human rights argument does not go far enough toward getting concrete results, criticizing Human Rights Watch Director Ken Roth for saying that “human rights arguments are ineffective in the amorphous realm of costs and benefits.” What Ken Roth is saying is that human rights analysis does not ac- knowledge a right of union workers to win their demands or to win strikes on their terms.

It would be overreaching to assert a “right to win” as a basic human right. Still, human rights advocates make strong arguments for living wages, safe and healthy working conditions, de- cent treatment of migrant workers, workers’ compensation, health insurance, decent pen- sions, paid vacations and other social protections, equal pay, non-discrimination, no child labor, limits on working hours, and other “just and fa- vorable conditions of work,” as the UDHR and other human rights instruments put it. Human Rights Watch’s own reporting on health and

safety conditions in the meatpacking industry and in agriculture demonstrate this. Amnesty In- ternational, Oxfam and other human rights groups have done similar work. Adding a human rights voice strengthens the movement for better working conditions, not weakens it.

PUTTING THE HUMAN RIGHTS CASE TO WORK

MANY UNIONS ARE FINDING THAT THEhuman rights theme resonates andadvances their work. The United Food and Commercial Workers International Union (UFCW) features Human Rights Watch’s report on violations in the U.S. meatpacking industry in its ongoing effort to help workers organize at the Smithfield Foods hog-slaughtering plant in Tar Heel, North Carolina. American Federation of State, County, and Municipal Employees (AFSCME) has used a human rights analysis of management’s anti-union campaign at the Resurrection Health System in Chicago to build support among community allies there. The Teamsters invoked international human rights principles to counter moves by Cummins, Inc. to foment decertification in the company’s distribution and service shops around the country.

I’m first in line to acknowledge that it’s a struggle to have the UDHR and the Interna- tional Labour Organization (ILO) Conven- tions taken seriously (or for that matter, even to be known) in the United States. But in most of the rest of the world they are taken quite se- riously both inside and outside labor move- ments. Since so many union organizing and bargaining campaigns now involve multina- tional companies, joint campaign action with

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trade unions and allies abroad is critical for success.

The human rights framework is especially helpful in building alliances with European trade unions and allied groups. They are strongly attuned to fundamental rights argu- ments and knowledgeable about ILO stan- dards. They constantly raise them in European Union labor affairs.

I participated in a webinar in July 2008 with 30 European “socially responsible investment” managers, arranged by U.S. trade unionists who wanted to convey the reality of American man- agement union-busting tactics to a new audi- ence. The Europeans didn’t care about the National Labor Relations Act (NLRA) or the technicalities of labor law violations under U.S. law. They wanted to know how management abuses and labor law failures stack up under ILO standards and international human rights standards. Labor advocates hope they will put pressure on European companies to respect workers’ rights in their U.S. operations.

In 2004, the Teamsters union issued a human rights critique of Maersk-Sealand, the giant Denmark-based international shipping company, for violating rights of association among truck drivers who carry cargo containers from ports to inland distribution centers. The company had fired workers who protested low pay and dangerous conditions, and threatened retaliation against others if they continued their organizing efforts. These company abuses were technically legal because the drivers are defined as independent contractors, not as employees. Independent contractor status means that they are excluded from protections of the NLRA and can be fired and threatened with impunity.

Invoking human rights standards to counter this technicality of U.S. labor law, the union charged that the company’s actions “vio- late international human rights and labor rights

norms for workers” and emphasized that “[t]he responsibility of multinational corporations to recognize international human rights is becom- ing an important facet of international law.” The report went on to present detailed case studies of Maersk’s labor rights violations, and recom- mended that “Maersk should declare publicly its commitment to respect international human rights and labor rights standards, including a policy of non-reprisals against any workers who exercise rights of assembly, association and speech in connection with their employment.”

This was not just a report that sat on shelves. In 2004, workers protested at the Dan- ish embassy in Washington D.C. and at con- sulates around the United States, distributing copies of it. In 2005, union leaders went to the corporation’s annual shareholders meeting in Copenhagen, distributing copies to investors and to the Danish media, with significant at- tention.

In 2006, the union introduced a share- holders resolution, common at American com- panies’ annual meetings but a novelty for Maersk, calling on the company to adopt inter- national labor rights standards as official com- pany policy. Under pressure from the international human rights campaign, Maersk has ended its reprisals against union supporters and is currently engaged in sustained talks with the Teamsters to find a collective bargaining solution for port truck drivers.

In similar fashion, the Teamsters’ use of in- ternational human rights and labor rights argu- ments brought a breakthrough in organizing among private school bus drivers employed by First Student, Inc. in locations around the United States. First Student is the U.S. subsidiary of United Kingdom (UK)-based FirstGroup, a multinational transportation company. The Teamsters brought a human rights critique of

Solidarity and Human Rights New Labor Forum • 43

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First Student’s anti-union campaign tactics— captive audience meetings, one-on-one meet- ings by supervisors with employees, implicit threats and the like—to UK union and non- governmental organization (NGO) counter- parts, the British media, the House of Commons, FirstGroup’s annual shareholders meeting, and other audiences. Their combined pressure moved top management to issue a “Freedom of Association” policy requiring neu- trality toward worker organizing. First Student management backed away from its aggressive interference, and the Teamsters scored a series of National Labor Relations Board (NLRB) elec- tion victories in the past year bringing thou- sands of new workers into the union.

Trade unionists are also making good use of international human rights instruments and mechanisms. In recent years the ILO’s Com- mittee on Freedom of Association has found U.S. violations of workers’ organizing and bar- gaining rights in cases involving immigrant workers, registered nurses, airport security screeners, North Carolina public employees, and university teaching assistants.

Understood: taking rights claims to the ILO or other international human rights bodies does not yield enforceable rulings. It is not a magic bullet, but neither is it a waste of time. The rulings have author- itativeness and moral force; our chal- lenge is to use them creatively to change labor policy discourse in the United States and to convince allies in Europe and around the world that American workers face human rights abuses, too.

Even the National Right to Work Commit- tee sees the potential for ILO rulings advancing U.S. labor’s cause. In February 2008, the Com- mittee issued a briefing paper titled Organized

Labor’s International Law Project? Transforming Workplace Rights into Human Rights.4 The paper asserted that “[o]rganized labor has effectively argued that labor rights ought to be considered not as mere elements of economic policy, but as international human rights proclaimed and monitored by international bodies.” It went on to signal “legitimate concern that domestic courts may allow themselves to be influenced by the rulings of international tribunals” and warned that “ILO processes are a lobbying tool for organized labor and a potential embarrass- ment for the United States.” The paper con- cluded that “the U.S. government might well give serious consideration to withdrawing from ILO membership.”

COMING BACK HOME: THE POLITICS OF LABOR REFORM

THE NEW LABOR-HUMAN RIGHTS ALLIANCE CANhelp win much-needed reform in U.S.labor law, starting with the Employee Free Choice Act (EFCA). Workers want the law on their side. This does not sit well with advocates who see the law as an oppressive, militancy-

busting shackle that workers should blow off in favor of direct syndical combat against employers. However, the balance of power in the U.S. economy is such that jettisoning the law and having workers engage in a test of sheer

The new labor-human rights alliance can help win much- needed reform in U.S. labor law, starting with EFCA.

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force with employers would be suicidal. The labor movement still must seek the protective shield of strong labor laws, strongly enforced by federal power. An allied human rights movement can help achieve this goal.

The Wagner Act recognized a basic fact about a capitalist economy: employers inher- ently hold the upper hand in the workplace based on property ownership, entrepreneurial control, and managerial authority. Accordingly, the law must side with workers to right the bal- ance. Federal labor law and labor law authori- ties should be forthrightly pro-worker, pro-union, and pro-collective bargaining. But workers cannot win these alone. Fashioning a human rights case for reform can help gain sup- port from fence-sitting politicians and middle- class reformers. Winning even modest legislative victories in this direction will give workers confidence that the law is on their side. In turn, success on the political front will gen- erate new organizing success.

Again, this is not meant to overstate the human rights argument or to exaggerate its ef- fects. Jay Youngdahl makes a powerful case and has generated an important exchange here. Labor advocates cannot just cry “human rights,

human rights” and expect employers to change their behavior or Congress to enact labor law re- form. For example, in the EFCA debate, strate- gists concluded that human rights would be a secondary frame, yielding priority to a “restore the middle-class” argument that would make it easier for workers to organize and bargain to ad- dress growing inequality.

Change will be incremental. Labor and human rights advocates still confront general unawareness in the United States of interna- tional human rights standards and of the ILO’s work in giving precise meaning to those stan- dards. Advocates still have an enormous educa- tional challenge of making them more widely known and respected.

But the fact that international human rights arguments strain for a place in American polit- ical discourse is not a reason to shy away from their use. It’s a reason to bring human rights into the discourse to connect with a natural sense of “rights” that all people have. The human rights argument pries open more space for workers’ organizing and bargaining by framing them as a human rights mission, not just as a test of economic power between institutional adversaries. ■

Notes

Solidarity and Human Rights New Labor Forum • 45

1. See James B. Atleson, “The Voyage of the Neptune Jade: The Perils and Promises of Transnational Labor Solidarity,” 52 Buffalo Law Review 85 (2004).

2. See National Right to Work Foundation, “Saint-Gobain Workers Throw Out Unwanted UAW Union: Foundation attorneys successfully aid workers in high- profile decertification battle,” Foundation Action, (March/April 2005): 4.

3. See http://www.ushrnetwork.org/. 4. See Malcolm C. Muggeridge,

“Organized Labor’s International Law Project? Transforming Workplace Rights into Human Rights,” National Right to Work Committee, Engage, Vol. 9 (February 2008).

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Our core problem, however, is not that we do not have enough allies; it is that our move- ment is presently struggling about our way for- ward. The question I am raising is: how can workers come together and fight in solidarity, with the understanding that an injury to one is an injury to all? Workers, like most people of the world, have been influenced by the mantra of “me first.” If their leaders tell them that they are fighting first and foremost for individual rights, “me firstism” is sure to be the result. “Me firstism” and solidarity are opposing concepts.

Consider the bitter dispute underway (as of fall 2008) at the St. Joseph Hospital chain in Cal- ifornia. There the SEIU-UHW-West has mounted an organizing drive covering thousands of workers at several hospitals. Allies of the work- ers have attempted to frame the issue as one in which hospital management is at odds with Catholic teaching on social justice, and many of

the workers’ allies have been influenced by the community-centered liberation theology of Gus- tavo Gutierrez and others. The response of the hospital is that they are protecting individual rights. Resistance to union organizing, a hospital vice president stated, comes from the importance of the individual. Their opposition to unioniza- tion is because, “The foundation of the tradition is the human dignity of the individual.”1 How are workers to respond if they have been inculcated by their union leaders that the fight for individual rights is the basis of the union movement today? Compa and I agree that it is obviously dishonest for enemies of labor to claim they are supporting “rights,” but I do not think it is so obvious to many in our movement, or to many of our po- tential friends.

Practically, the human rights approach is an imprecise template to place over workplace strug- gles. The question of what to do with competing

By Jay Youngdahl

I UNDERSTAND WHY LANCE, LIKE MANY IN THE LABOR MOVEMENT, STRESSES THE IMPORTANCE of allies for labor and advocates the human rights framing, using the terminology of these potential friends. In my work in the South, I have tried to explain to human rights activists why they should respect a mass transit strike which would inconvenience them, for example, or why a construction union fighting for area standards should be supported when it places a blowup rat in front of a hospital. Without the human rights frame, to activists who have little understanding of the importance of unions, labor struggles often look uncouth and obstructionist.

YOUNGDAHL REPLIES

ISSN: 1095-7960/08 print

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rights has yet to be fleshed out. Read the Univer- sal Declaration of Human Rights (UDHR) and think of all the possible conflicts be- tween individuals claiming certain rights. How are they to be resolved? How do we square the human rights protection of property rights in Article 17 of the UDHR with our advocacy of the labor rights in the document? Do we really think that, at any time in our life- time, the American judiciary will find labor rights trumping property rights? Further, Compa is wrong to imply that rights have become collective. An indi- vidual assertion of a right to associate does not make rights collective. Recently, an im- portant African labor leader, Hassan Sunmonu, criticized those who privilege the human rights frame, questioning “why the human rights agenda was often used to promote individual rights over and above collective rights.2 Further, our issues are not mainly procedural, they are substantive. Ken Roth of Human Rights Watch let the cat out of the bag when he said that the human rights framework is not a conducive way to succeed in areas involving these kinds of so- cial and economic advances.

Compa and I agree that both the individual and the social must and will exist.3 Our disagree- ment is over which must be primary in a union movement that empowers and powerfully sup- ports workers.

A strategy based on solidarity is a practical one. People crave community. The explosive growth in social networking sites on the internet is just one example. Our harried commodified society separates people; but people do not want to bowl alone, they have been forced to. Unions can be the finest examples of caring communi- ties that unite people. A philosophy of solidarity can powerfully and practically connect to and in- spire larger society.

The human rights framing just puts off the fundamental issue in the workplace—how are the

efforts of labor to be divided? This has been the nexus of the fight between labor and capital since the dawn of capitalism. It is why labor can never be a human rights movement like others. The hostile management response to the Employee Free Choice Act (EFCA) is not because it is a human rights issue; it is because increased union- ization has the potential to strengthen the ability of workers to get more of the pie.

While he might disagree, I think the essen- tial difference between Compa and me is the de- gree of optimism that we have about the ability of working people to take matters into our own hands. If unions and working people are in sim- ilar straits to those suffering in situations like Darfur, then human rights-centered appeals to friends are the only way to succeed. I understand that this is a bleak time in the global labor move- ment, but it is not that bleak. If it is, all our efforts will be in vain. ■

1. “Theology Finds Its Way into a Debate Over Unions,” The New York Times, August 9, 2008.

2. International Union Rights, Vol. 15, No. 2, (2008): 17. Hassan Sonmonu is the General Secretary of the African labor federation OATUU.

3. Interestingly, Article 29 of the UDHR reads, “Everyone has duties to the community in which alone the free and full development of his (sic) personality is possible.”

Notes

The essential difference between Compa and me is the degree of optimism that we have about the ability of working people to take matters into our own hands.

Youngdahl Replies New Labor Forum • 47

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Cornell University ILR School
DigitalCommons@ILR

Winter 2009

Should Labor Defend Worker Rights as Human Rights? A Debate

Jay Youngdahl
Lance A. Compa
Should Labor Defend Worker Rights as Human Rights? A Debate

Abstract
Keywords
Disciplines
Comments

NFL_Journal_final_021309_Layout 1

Q2/VMantouvalou_Are_labour_rights_human_rights copy.pdf

UCL Labour Rights Institute On-Line Working Papers – LRI WP X/2012

Are Labour Rights Human Rights?

Virginia Mantouvalou (UCL)

Forthcoming in the 2012 European Labour Law Journal

Are Labour Rights Human Rights?

Forthcoming in the 2012 European Labour Law Journal

Virginia Mantouvalou

1. Introduction

Are labour rights human rights? This question has attracted much interest in recent years

among lawyers, academic scholars, trade unionists and other activists, and has given rise

to heated debates. In human rights law and labour law scholarship, some endorse the

character of labour rights as human rights without hesitation, while others view it with

scepticism and suspicion.

This article finds that there are in fact three different approaches in the literature that

examines labour rights as human rights, which are not always distinguished with

sufficient clarity. First, there is a positivistic approach, according to which a group of

rights are human rights insofar as certain treaties recognise them as such. The question

whether labour rights are human rights is uncomplicated on this approach, which is often

found in international law scholarship. A response to it comes through a survey of

human rights law. If labour rights are incorporated in human rights documents, they are

human rights. If they do not figure therein, they are not human rights. A second way in

which the question of this article is approached is an instrumental one that looks at the

consequences of using strategies, such as litigation or civil society action, which promote

labour rights as human rights. This is the most common way in which labour law

scholars analyse the problem in question. If strategies are, as a matter of social fact,

successful, the question is answered in the affirmative; if not, scepticism is expressed.

Co-Director of the Institute for Human Rights and Lecturer in Law, University College London (UCL).

The final section of the article (the ‘normative approach’) was presented at the University of Tilburg in

September 2011, at the seminar ‘Integrating Foundations in Labour Law: Exercises in Contemporary

Scholarship’, in the context of the Inauguration of Professor Frank Hendrickx as Jean Monnet Chair in

European Labour Law. A draft was also presented in September 2011 at the Society of Legal Scholars

conference at the University of Cambridge, in November 2011 at the Economic and Social Rights

Research Network meeting at UCL, and in January 2012 at the University of Birmingham. Many thanks are

due to Frank Hendrickx and to all participants of these workshops. Einat Albin, George Letsas, Tonia

Novitz, Amir Paz-Fuchs, Prince Saprai and Rob Stevens have also given me very useful feedback. Finally, I

received invaluable comments when I presented this article at a staff seminar at UCL in December 2011. I

am grateful to my colleagues, and to Hugh Collins and John Tasioulas for acting as commentators.

The third approach to the question whether labour rights are human rights is a

normative one. It examines what a human right is, and assesses, given this definition,

whether certain labour rights are human rights. This path is the one that has been least

taken in the literature, but is an important one and has implications for the previous two

approaches.

This article maps out the three approaches above, addresses the main arguments

advanced in scholarship and explores their implications.

2. Labour rights as human rights: three approaches

A definition of labour rights is necessary before moving on. Labour rights are

entitlements that relate specifically to the role of being a worker. Some of these rights are

exercised individually and others collectively. They can include a right to work in a job

freely chosen, a right to fair working conditions, which may encompass issues as diverse

as a just wage or protection of privacy; a right to be protected from arbitrary and

unjustified dismissal; a right to belong to and be represented by a trade union; a right to

strike. These rights may be based on different foundations, such as freedom, dignity or

capability. This article will not discuss the justification of labour rights, but it has to be

noted that the foundation of rights is crucial when considering their interpretation.1

a. The positivistic approach

The most straightforward answer to the question whether labour rights are human rights

comes from a positivist perspective, and is often found in international law literature. A 1 See the discussion in ACL Davies, Perspectives on Labour Law, CUP, 2009, 2nd edition, pp 50-51. There is

literature that examines the foundations of labour rights. On democratic theory as a justification of

collective labour rights, see A Bogg, The Democratic Aspects of Trade Union Recognition, Hart, 2009. On a

Rawlsian account, see H Collins, ‘Theories of Rights as Justifications for Labour Law’, in Davidov and

Langille (eds), The Idea of Labour Law, OUP, 2011, p 137. For a justification of protection from unfair

dismissal, see H Collins, Justice in Dismissal, OUP, 1992, pp 15-21. On the theory of capabilities developed

by Sen and Nussbaum as a justification, see S Deakin, ‘Social Rights in a Globalized Economy’, in Alston

(ed), Labour Rights as Human Rights, OUP, 2005, p 25; S Deakin and F Wilkinson, The Law of the Labour

Market, OUP, 2005, chapter 5. On freedom as non-domination, see V Mantouvalou, ‘Human Rights and

Unfair Dismissal: Private Acts in Public Spaces’, (2008) 71 Modern Law Review 912. On citizenship as a

justification, see G Mundlak, ‘Industrial Citizenship, Social Citizenship, Corporate Citizenship: I Just Want

My Wages’, (2008) 8 Theoretical Enquiries in Law 531.

positivist lists human rights treaties protecting labour rights, or other documents

explicitly recognising labour rights as human rights as a starting point, and is satisfied

that the answer is positive, if it is sufficiently supported in law.2 Looking at the Universal

Declaration of Human Rights (UDHR), which is a non-binding but enormously

influential document, the positivist finds that several labour rights are human rights:

article 4 of the UDHR prohibits slavery and servitude; article 23 provides that everyone

has the right to work and that everyone should work in a job freely chosen; that everyone

should receive equal pay for equal work; that everyone should get decent remuneration

for work performed, which should guarantee a dignified life for herself and her family;

and that everyone has a right to form and join trade unions; article 24, in turn, guarantees

a right to rest and leisure, including reasonable limitations of working hours, as well as

holidays with pay. Listing these provisions, a positivist is satisfied that not only are labour

rights human rights, but that there is an extensive list of these rights in human rights law.

The positivist would describe the legal protection that the international community

affords labour rights, and would find that it decided to divide human rights in categories,

recognising them varying degrees of protection. Treaties that followed the UDHR

separated certain labour rights from some others, classifying a group of them as civil and

political rights in the International Covenant on Civil and Political Rights (1966), and

others as economic and social rights in the International Covenant on Economic, Social

and Cultural Rights (1966). In a way that mirrors the separation of human rights into the

two UN Covenants, at a regional level the Council of Europe and the Organisation of

American States separated civil and political rights, and economic and social rights, in

two documents: in the former case the European Convention on Human Rights (ECHR,

1950) and in the latter the European Social Charter (ESC, 1961), and the American

Convention on Human Rights (1978) – containing some more extensive socio-economic

guarantees than its European counterpart – and the San Salvador Additional Protocol in

the Area of Economic, Social and Cultural Rights (1999).

2 See, for instance, K Drzewicki, ‘The Right to Work and Rights in Work’, in Eide et al (eds) Economic,

Social and Cultural Rights, Kluwer, 2001, 2nd edition, p 223; M Ssenyonjo, ‘Economic, Social and Cultural

Rights: An Examination of State Obligations’, in Joseph and McBeth (eds), Research Handbook on

International Human Rights Law, Edward Elgar, 2010, p 36.

Rights that are found in social rights treaties were weakly worded and monitored. From

early on in the history of the UN, the ICCPR recognised a right to individual petition

before the Human Rights Committee in an additional protocol. The ICESCR, on the

other hand, is only monitored through reporting procedures.3 At regional level, the

European and American systems have opted for a model similar to the UN. The ECHR

provides for a right of individual application before the European Court of Human

Rights (ECtHR). The ESC has a procedure for reporting to the European Committee of

Social Rights, and since 1998 a Protocol that recognises a right of collective complaints

by certain non-governmental organisations, trade unions and other groups. The

American Convention on Human Rights, in a similar vein, is monitored by the Inter-

American Court of Human Rights, where individuals can lodge an application for an

alleged violation of rights under the Convention, while the San Salvador Protocol in the

Area of Economic, Social and Cultural Rights, which was adopted in 1988 and provides

for a right to individual petition on the right to education and trade union rights, is not

yet operational.

Against this background, rights such as the right to form and join a trade union and the

right to privacy were categorised as civil and political rights, and rights such as the right

to work, the right to decent working conditions or the right to strike, were categorised as

social and economic rights. The implication of this was that some of these were viewed

as real human rights, while others were presented as aspirational goals.4

To find an answer to the question whether labour rights are human rights, a positivist

might also turn to the International Labour Organisation (ILO), the expert branch of the

UN in the field of labour rights.5 The ILO predates all the human rights treaties and

organisations (having been founded in 1919), which shows that labour issues became a

matter of international concern before human rights. Does the ILO view labour rights as

human rights? For many decades, the ILO did not explicitly present the documents

3 The ICESCR now has an optional Protocol on individual petition, which is not yet operational. 4 See the discussion in D Barak-Erez and AM Gross, ‘Introduction: Do We Need Social Rights?’, in Barak-

Erez and Gross (eds), Exploring Social Rights, Hart, 2007, p 1 at 4. See also V Mantouvalou, ‘In Support of

Legalisation’ in Gearty, Mantouvalou, Debating Social Rights, Hart, 2011, pp 90-98. 5 See, for instance, L Swepston, ‘The International Labour Organization’s System for Human Rights

Protection’, in Symonides (ed), Human Rights: International Protection, Monitoring, Enforcement,

Unesco/Ashgate, 2003, p 91.

adopted under its auspices as human rights documents.6 It adopted binding conventions

that incorporated labour standards, and non-binding recommendations that further

detailed this list of standards.

In recent years the ILO endorsed a list of labour rights as human rights. In 1998, it

adopted the Declaration of Fundamental Principles and Rights at Work.7 The

Declaration binds all ILO Member States, irrespective of whether they have ratified the

relevant conventions, and contains four core rights: freedom of association and the right

to collective bargaining, the elimination of forced or compulsory labour, the abolition of

child labour and the elimination of discrimination in employment. By listing these rights

as fundamental human rights, the ILO left a number of other labour rights outside the

scope of the Declaration, and this is important, not only symbolically, but also because

the Declaration’s Follow-up procedure requires States to report on their obligations

under the core Conventions that they have not ratified.

Another recently drafted human rights document, on the other hand, the European

Union Charter of Fundamental Rights (EUCFR), which has been made legally binding

with the Lisbon Treaty of 2009, contains a list of labour rights as human rights, such as a

right to information and consultation, protection from unfair dismissal and the

prohibition of forced labour.8

The positivist would list all these documents, and would claim that labour rights are

human rights sometimes, in some jurisdictions.

Implications

However the above situation does not provide clear answers to our question, and may be

troubling. Which labour rights are human rights? Those included in the UDHR or those

protected in the ICESCR? The minimal list of rights of the ILO Declaration or the

6 There is some literature that from early on approached certain ILO Conventions as human rights

conventions. See CW Jenks, Human Rights and International Labour Standards, Steven and Sons, 1960. 7 For a brief presentation of the Declaration and its follow-up procedure see H Kellerson, “The ILO

Declaration of 1998 on Fundamental Principles and Rights: A Challenge for the Future”, (1998) 137

International Labour Review 223. 8 On labour rights under the EU Charter, see J Hunt, ‘Fair and Just Working Conditions’, in Hervey and

Kenner (eds) Economic and Social Rights under the EU Charter of Fundamental Rights, Hart, 2003, p 45; and B

Ryan, ‘The Charter and Collective Labour Law’, in the same collection, p 67.

extensive list of the ESC? To illustrate the problem, the decision of the ILO to pick four

labour rights only as fundamental human rights, while leaving others outside the scope of

the Declaration, was criticised for excluding traditional and important socio-economic

rights, such as the right to a minimum wage,9 and gave rise to very heated debates in

academic literature.10 The positivist will be unable to contribute to these debates or

explain the relative neglect of some labour rights in law.

The positivistic approach addresses questions such as these: which labour rights did the

drafters of a particular human rights document deem important and which of these

rights survived political negotiations? Human rights treaties, like all treaties and

legislation, are subject to compromise. They may contain provisions on which the

drafters easily agreed, while leaving out others for the sole reason that there was little

consensus in political debates at a given moment in history. The fear of communism in

the aftermath of the second World War, for instance, played an important role in the

separation between civil and social rights, a point that is illustrated in the work of one of

the staunchest opponents of social rights. Criticising the inclusion of social rights in the

UDHR, Cranston said: ‘What the modern communists have done is to appropriate the

word “rights” for the principles that they believe in’.11 Cranston’s statement encapsulates

well the climate of the Cold War that continues to haunt social and labour rights. The

response of the positivist to whether labour rights are human rights will depend on what

the drafters of a particular document decided, and will vary from one country or one

region to the other.

The positivist may also look at judicial decisions or other authoritative interpretations of

human rights documents, and may have difficulties in resolving conflicts, which courts

and other bodies sometimes have to address.12 The answer to the question whether

9 P Alston and J Heenan, ‘Shrinking the International Labor Code: An Unintended Consequence of the

1998 ILO Declaration on Fundamental Principles and Rights at Work?’, (2004) NYU Journal of International

Law and Policy 221. 10 See P Alston, ‘Core Labour Standards and the Transformation of the International Labour Rights

Regime’, (2004) 15 European Journal of International Law 457; and B Langille, ‘Core Labour Rights – The True

Story (Reply to Alston)’, (2005) 16 European Journal of International Law 409. 11 M Cranston, Human Rights To-day, Ampersand, 1962, pp 38-39. 12 For an example of problems that can emanate from conflicting interpretations, see G Morris, ‘Freedom

of Association and the Interests of the State’, in Ewing, Gearty and Hepple (eds), Human Rights and Labour

Law, Mansell, 1994, p 28. See also P O’Higgins, ‘The Interaction of the ILO, the Council of Europe and

labour rights are human rights may differ within the same region where different

documents are applicable and their monitoring bodies have overlapping jurisdictions.

The European Union is one such example. The main human rights documents in Europe

are the ECHR, which is a Council of Europe document, and the EUCFR, which is a

document of the EU. These contain very different lists of labour rights, as was explained

earlier. How can conflicts be resolved when the two documents set different priorities?

The positivist does not have the tools to address problems such as this, and may have

difficulties when it comes to interpretation of rights more generally.

b. The instrumental approach

The positivistic path is not the one that is most taken in labour law literature, even

though positive law is the starting point for those taking the most common approach in

labour law scholarship, the instrumental approach. The roots of the instrumental

approach lie in the Marxist tradition.13 On this analysis, ‘[t]he imperative to present [workers’] claims as human rights comes from the desire to utilise the potentially

powerful legal methods of securing advantage to pursue their claims, and also from the

perceived need to respond to employers’ willingness to use these arguments and tools

themselves.’14 Scholars adopting this approach examine which labour rights are human

rights according to the relevant documents, and assess how institutions and civil society

organisations fare in protecting them, so as to assess ‘whether labour rights really are

promoted under the rubric, or within the framework, of human rights’.15 Following this

analysis, the character of labour rights as human rights is endorsed if either state and

international institutions, like courts, or civil society organisations, like trade unions and

NGOs, are successful in promoting them as such. This approach started to emerge in the

the European Union Labour Standards’, Hepple (ed) Social and Labour Rights in a Global Context, CUP, 2002,

p 55 at 67. 13 See, for example, K Marx, ‘On the Jewish Question’, in Early Writings, Penguin, 2000, p 211, (originally

published in 1843). On the Marxist approach towards legal rights, see H Collins, Marxism and the Law,

OUP, 1982, p 142 ff. 14 C Fenwick & T Novitz, ‘Conclusion: Regulating to Protect Workers’ Human Rights’ in Fenwick and

Novitz (eds) Human Rights at Work: Perspectives on Law and Regulation, Hart Publishing, 2010, pp 587-588.

15 P Alston, ‘Labour Rights as Human Rights: The Not So Happy State of Art’, in Alston (ed), Labour Rights

as Human Rights, OUP, 2005, p 3. See also P Macklem, ‘The Right to Bargain Collectively in International

Law: Workers’ Right, Human Right, International Right?’, in Alston (ed), Labour Rights as Human Rights, p

61.

1970s, as Davies has pointed out, when ‘[c]ommentators began to realise that collective

bargaining could not provide all the protection workers needed’.16 The question that

many of the scholars following this analysis seek to address is: ‘does the new rhetoric of

social rights – as embodied in instruments such as the ILO Declaration of Fundamental

Principles and Rights at Work (1998) and the EU Charter of Fundamental Rights (2000)

– match the reality of the new world of market regulation and growing global

inequality?’17 The responses to the question are mixed, as the literature that will be

discussed in this section shows by looking at first the role of courts and then the role of

civil society organisations.

Courts

In literature from different jurisdictions, scholars and activists assess the interplay

between labour rights and human rights by exploring how courts fare in their

protection.18 Whether these scholars and activists endorse or reject labour rights as

human rights depends on judicial attitudes towards these claims. The ECtHR and the

surrounding debates serve as an example that illustrates this trend. The ECHR, is a

traditional liberal human rights document that protects rights such as the right to private

life,19 freedom of expression,20 the right to form and join a trade union,21 and prohibits

slavery, servitude, forced and compulsory labour,22 but leaves other labour rights, such as

the right to strike or the right to decent working conditions, for the ESC, its counterpart

in the area of social rights.

The ECtHR was in the past reluctant to uphold workers’ claims. In a line of cases

decided in the 1970s, it rejected the right to strike or the right to consultation as

16 ACL Davies, Perspectives on Labour Law, CUP, 2nd edition, 2009, p 38. For further discussion see p 5 ff.

This book insightfully presents two distinct perspectives on labour law: an economics perspective and a

human rights perspective. 17 B Hepple, ‘Introduction’, in Hepple (ed) Social and Labour Rights in a Global Context, CUP, 2002, p 1 at 2. 18 For an overview from several different jurisdictions, see T Novitz and C Fenwick (eds), Human Rights at

Work, Hart, 2010. On international institutions, see P Alston (ed), Labour Rights as Human Rights, OUP,

2005. See also J Fudge, ‘Constitutionalizing Labour Rights in Europe’, in Campbell, Ewing and Tomkins

(eds), The Legal Protection of Human Rights: Sceptical Essays, OUP, 2011, p 244. 19 Article 8 of the ECHR. 20 Article 10 of the ECHR. 21 Article 11 of the ECHR. 22 Article 4 of the ECHR.

components of freedom of association.23 Even more strikingly for labour law scholars,

the Court gave priority to individual rights when they conflicted with the interests of

trade unions in case law involving ‘closed shop’ arrangements. Closed shops are

agreements whereby an individual must become member of a particular trade union in

order to access or retain her job. While trade unions favour closed shops, the ECtHR

regularly upheld individual claims against compulsory union membership.24 For this

reason, labour lawyers suggested that human rights law undermines the interests of

labour, criticising Strasbourg case law for being disappointing,25 ‘individual and

formalistic’,26 and for also showing ‘limited enthusiasm for the protection of trade union

rights’ and ‘a greater interest on the defence of individual autonomy than collective

solidarity’.27 In the US too, judicial approaches to the issue of closed shops is frequently

used as an example where human rights harm collective interests.28

The case law of the ECtHR has in recent years been receptive to workers’ claims in a

development that led labour law scholars to change their position towards labour rights

as human rights. The Court extended the principles of the Convention in the

employment sphere through the adoption of an ‘integrated approach’ to interpretation.29

The integrated approach is an interpretive technique that reads certain social and labour

rights in the provisions of the ECHR. In the important case Sidabras and Dziautas v

23 Schmidt and Dahlstrom v Sweden, App no 5589/72, Judgment of 6 February 1976; National Union of Belgian

Police v Belgium, App no 4464/70, Judgment of 27 October 1975. 24 See Young, James and Webster v UK, App Nos 7601/76 and 7806/77, Judgment of 18 October 1982; more

recently see Sorensen and Rasmussen v Denmark, App Nos 52562/99 and 52620/99; Judgment of 11 January

2006. For analysis of the compatibility of closed shops with human rights law, see V Mantouvalou, ‘Is

There a Human Right not to Be a Trade Union Member?’ in Novitz and Fenwick (eds), Human Rights at

Work, Hart, 2010, p 439. 25 KD Ewing, ‘The Human Rights Act and Labour Law’ (1998) 27 Industrial Law Journal 275.

26 Lord Wedderburn, ‘Freedom of Association or Right to Organise? The Common Law and International

Sources’ in Wedderburn (ed), Employment Rights in Britain and Europe, Lawrence and Wishart, 1991, p 138 at

144. 27 Novitz, T, International and European Protection of the Right to Strike, OUP, 2003, 238.

28 See the discussion in A Santos, ‘Three Transnational Discourses of Labor Law in Domestic Reform’,

(2010) 32 University of Pennsylvania Journal of International Law 123 at 142-144. 29 See V Mantouvalou, ‘Work and Private Life: Sidabras and Dziautas v Lithuania’, (2005) 30 European Law

Review 573.

Lithuania,30 for instance, having recognised that the right to private life ‘secures to the

individual a sphere within which he or she can freely pursue the development and

fulfilment of his or her personality’,31 the Court went on to state that the wide ban on

access to employment can affect the ‘ability to develop relationships with the outside

world to a very significant degree’, creating ‘serious difficulties […] in terms of earning

[a] living, with obvious repercussions on the enjoyment of […] private lives’.32 The Court

recognised that the right to private life under article 8 may encompass a right to work.

Another labour right, the right to work in decent conditions, was upheld in the landmark

judgment Siliadin v France,33 where the Court ruled that conditions of ‘modern slavery’

impose a duty to enact legislation criminalising the conduct of the employers. In Rantsev v

Cyprus and Russia34 it added that enactment of legislation on human trafficking for sexual

exploitation is not sufficient; the authorities also have a duty to make the legislative

measures operational. There are several other examples where the ECtHR has extended

the principles of the Convention in the employment sphere.35

Turning to collective labour rights cases, in a series of judgments since 2002, the Court

started being receptive to trade union claims. Wilson and Palmer v UK36 held that providing

financial incentives to individuals that cease to be represented by unions for the purposes

of collective bargaining violates article 11 of the ECHR. This was the first time that the

Court ruled in favour of trade unions in its case law, in a development that was

30 Sidabras and Dziautas v Lithuania, App Nos 55480/00 and 59330/00, Judgment of 27 July 2004. 31 See Sidabras, para 43. 32 Sidabras, para 48. 33 Siliadin v France, App No. 73316/01, Judgment of 26 July 2005. For analysis see V Mantouvalou,

‘Servitude and Forced Labour in the 21st Century: The Human Rights of Domestic Workers’, (2006) 35

Industrial Law Journal 395. 34 Rantsev v Cyprus and Russia, App No 26965/04, Judgment of 7 January 2010. 35 On private life, see Pay v UK, App No 32792/05, Admissibility Decision of 16 September 2008. For

analysis, see H Collins and V Mantouvalou, ‘Private Life and Dismissal: Pay v UK’, (2009) 38 Industrial Law

Journal 133. See further Schuth v Germany, App No 1620/03, Judgment of 23 September 2010; Obst v

Germany, App No 425/03, Judgment of 23 September 2010; Smith and Grady v UK, App Nos 33985/96,

33986/96, Judgment of 27 September 1999; Vogt v Germany, App No 17851/91, Judgment of 26

September 1995. For a discussion of case law on the right to a fair trial under article 6, see A Sanders, ‘A

Right to “Legal” Representation (in the Workplace) During Disciplinary Proceedings’, (2010) 39 Industrial

Law Journal 166. 36 Wilson and Palmer v UK, App Nos 30668/96, 30671/96 and 30678/96, Judgment of 2 July 2002.

welcomed by labour law scholars who had been traditionally sceptical about the impact

of human rights in their field.37 Wilson was followed by more cases that protected labour

rights,38 in a manner that in the words of Collins ‘revealed a profound reorientation in

the ECHR’s interpretation of Convention rights in the context of the workplace and

employment relations’.39

It should not come as a surprise, following the change of the stance of the ECtHR, that

in 2010 Ewing and Hendy, who are leading proponents of trade union rights and had

been critical of human rights law in the past,40 celebrated the judgment Demir and Baykara

v Turkey,41 which recognised a right to collective bargaining as a component of the right

to form and join a trade union. They said that in this decision ‘human rights have

established their superiority over economic irrationalism and “competitiveness” in the

battle for the soul of labour law, and in which public law has triumphed over private law

and public lawyers over private lawyers’.42

Civil society organisations

Another line of thinking that takes the instrumental approach and explores the

usefulness of strategies promoting labour rights as human rights, looks at activities of

non-governmental organisations. Virginia Leary, for instance, wrote that ‘workers’ rights

are human rights, yet the international human rights movement devotes little attention to

the rights of the workers’.43 She went on to explain that NGOs, labour advocates and

human rights scholars have paid insufficient attention to workers’ rights that we find in 37 K Ewing, ‘The Implications of Wilson and Palmer’, (2003) 32 Industrial Law Journal 1. 38 For a detailed presentation of case law under article 11, see F Dorssemont, ‘The Right to Form and to

Join Trade Unions for the Protection of his Interests under Article 11 ECHR’, (2010) 1 European Labour

Law Journal 185. For a discussion of Strasbourg and UK case-law on strikes, see N Countouris and M

Freedland, ‘Injunctions, Cyanamid, and the Corrosion of the Right to Strike in the UK’, (2011) European

Labour Law Journal 489. For an overview of issues arising in the context of the protection of civil and social

rights in the workplace, see H Collins, Employment Law, 2nd edition, OUP, chapters 10 and 11. 39 H Collins, ‘The Protection of Civil Liberties in the Workplace’, (2006) 69 Modern Law Review 619 at 627. 40 See, for example, K Ewing, ‘The Unbalanced Constitution’, in Campbell, Ewing, Tomkins (eds), Sceptical

Essays on Human Rights, OUP, 2001, p 103. 41 Demir and Baykara v Turkey, App No 34503/97, Grand Chamber Judgment of 12 November 2008. 42 K Ewing, J Hendy, ‘The Dramatic Implications of Demir and Baykara’, (2010) 39 Industrial Law Journal 2 at

47-48. 43 VA Leary, ‘The Paradox of Workers’ Rights as Human Rights’, in Compa and Diamond (eds), Human

Rights, Labour Rights and International Trade, University of Pennsylvania Press, 2003, p 22.

international human rights documents, viewing this as a shortcoming, which can, and

should, be addressed. Several proponents of labour rights as human rights have stressed

that human rights can have a motivating and empowering function. Compa suggested

that ‘workers are empowered in campaigns when they are themselves convinced – and

convincing the public – that they are vindicating their fundamental human rights, not just

seeking a wage increase or more job benefits’.44 He supported this with evidence from

trade union action that has been successful through human rights strategies.45 Looking at

the interplay between human and labour rights organisations in Israel, Guy Mundlak

presented areas where their aims converge and where they diverge, as well as aspects

where there is potential for co-operation.46

Yet the positive stance towards labour rights as human rights in civil society action is not

endorsed unequivocally. Some scholars express scepticism too. This was illustrated in a

piece called ‘Labour Rights Are not the Same as Human Rights’, where Jay Youngdahl

said that ‘the replacement of solidarity and unity as the anchor for labor justice with

“individual human rights” will mean the end of the union movement as we know it. This

is true tactically, strategically, and philosophically. Rights discourse individualizes the

struggle at work. The union movement, however, was built on and nourished by

solidarity and community. The powerless can only progress their work life in concert

with each other, not alone. Fighting individually, workers lose; fighting together workers

can win’.47

Looking at the example of the US but drawing more general conclusions, Kevin Kolben

noted that the action of the human rights and labour rights movements meets more

often than in the past, and presented several examples of co-operation between human

and labour rights organisations.48 However, he urged labour rights activists to refrain

from such strategies, because human and labour rights differ conceptually, and the

organisations promoting them have very different goals. The human rights movement is

characterised by ‘legalism, elitism’, as well as an ‘individualist and philanthropic frame’

towards workers’ rights, so Kolben warned against reliance by labour activists on human 44 L Compa, ‘Solidarity and Human Rights’, (2009) 18 New Labour Forum, p 38 at 42. 45 Compa, as above, p 42 ff. 46 G Mundlak, ‘Why the Tracks Don’t Meet’, (2012) Comparative Labor Law and Policy Journal, forthcoming. 47 J Youngdahl, ‘Solidarity First: Labor Rights Are Not the Same as Human Rights’, (2009) 18 New Labor

Forum 31, at 31-32. 48 K Kolben, ‘Labor Rights as Human Rights?’, (2010) 50 Virginia Journal of International Law 449 at 468 ff.

rights discourse.49

Implications

It emerges from the above that advocates of the instrumental approach often claim that

there are significant conceptual differences between labour rights and human rights.50 Is

this correct? The position that there is a sharp division between the two groups of claims

has been criticised in literature on social rights more generally, so this article will not

discuss it at length. Suffices to say that civil and political, economic and social rights do

not differ conceptually, contrary to what was suggested in the past, because all rights can

impose positive and resource-demanding duties.51

Turning to objections that involve labour rights more specifically, these are said to differ

for the reason that typically human rights involve state power and not private economic

power. This is not necessarily correct, though: human rights do not only impose duties

on the state. The misconception may be explained because the main body of

international human rights law was first developed as a bulwark against totalitarian

regimes of the 20th century, and imposed duties on state authorities only. Yet in recent

years several courts, such as the ECtHR, have consistently ruled that private power can

be as harmful as public power, and interpreted human rights documents in ways that

mirror this, recognising positive state obligations to regulate the private sphere, including

the employment relationship.52 The Court has repeatedly extended ECHR principles

beyond state action, and developed a positive rights jurisprudence in the employment

context. This provides a response to the view that human rights and labour rights are

fundamentally different because of the duty-bearer (state/private actors) or because of

the supposed different sources of power that the two bodies of rules aim to limit

(political/economic power). 49 Kolben, as above, p 484. 50 For further discussion of similar objections, see HW Arthurs, ‘The Constitutionalization of Labour

Rights’, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1531326. 51 See, for instance, S Fredman, Human Rights Transformed, OUP, 2008; M Langford, ‘The Justiciability of

Social Rights: From Theory to Practice’, in Langford (ed), Social Rights Jurisprudence, p 3 at 30-31; V

Mantouvalou, ‘In Support of Legalisation’, in Gearty, Mantouvalou, Debating Social Rights, Hart, 2011, pp

109-116. 52 This occurred in case law discussed earlier. See, for instance, Rantsev, Wilson, Siliadin; see also Palomo

Sanchez v Spain, App Nos 28955/06, 28957/06 and 28964/06, Grand Chamber Judgment of 12 September

2011.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1531326

On the argument that human rights are individualistic, a characteristic which creates a

sharp line that distinguishes them from labour rights, it should be said that certain labour

rights, such as the right to strike, can only be exercised through collective action. Yet

other labour rights are individual rights, which are mainly exercised individually (though

they can also be promoted through collective action). The prohibition of slavery and

forced labour, the right to work or the right to privacy, exemplify this point. Moreover,

there are traditional civil and political rights, which can only be exercised collectively: the

right to freedom of assembly and association, for example, can only be exercised by

groups. There is nothing, in other words, in the nature of human rights that should make

as view them as necessarily atomistic, as Robin West has argued: ‘Rights could as readily

be grounded in a view of our nature that both respects our individuality and also gives

full recognition to our social nature: our extended periods of biological dependence on

caregivers, the resulting dependence of those caregivers on the support of others, our

obligations to our communities and neighborhoods, our civic and charitable duties to

others, and our responsibilities to engage in civic life’.53 To this list we could add: our

lives spent at work.54 If the claim that human rights are individualistic refers to the fact

that they are protected by individual petition in law, it should be said that claims for

alleged human rights violations can be brought not only by individuals, but by trade

unions or non-governmental organisations too. The ECtHR and the ECSR, where trade

unions and other organisations can bring claims or otherwise participate in the legal

process (through making third-party submissions), also show that human rights litigation

is not only about individual petition.

Leaving the conceptual issues aside, in the literature that looks at attitudes of courts and

civil society organisations in order to develop strategies that promote workers’ interests,

the question whether labour rights are human rights very often becomes an empirical

one. Whether the observations made in sceptical scholarship are correct or not depends

on the outcomes achieved: the success of a strategy leads to endorsement, the failure

leads to rejection of labour rights as human rights. If a strategy fails, the so-called ‘human

53 R West, Re-Imagining Justice, p 86. On the social dimension of rights, see also DM Davis, P Macklem and

G Mundlak, ‘Social Rights, Social Citizenship and Transformative Constitutionalism: A Comparative

Assessment’, in Conaghan, Fischl and Klare (eds), Labour Law in an Era of Globalization, OUP, 2002, p 511. 54 On the importance of work for social life, see V Schultz, ‘Life’s Work’, (2000) 100 Columbia Law Review

1881.

rights discourse’ is rejected altogether.55 The costs of abandoning rights as a discourse,

however, are not always carefully considered. These include a loss in aspirational

standards and impoverishment in normative legal scholarship.56

It is also important to be mindful of possible shortcomings in the instrumental use of

human rights in order to advance strategic goals: first, if a strategy fails, it may create a

precedent that a particular labour right is not a human right, which may be hard to

reverse. This becomes evident when thinking about the case law of the 1970s and 1980s

on collective labour rights under the ECHR. Second, (admittedly a remote concern at

this stage) if a strategy is successful, it may lead to an inflation of rights and build

stringency in claims that may not carry this stringency. A very expansive interpretation of

existing provisions may reduce the moral weight of human rights claims, and may in this

way be counterproductive in the long run.

In any case, and perhaps most importantly, the fact that the law and the judiciary may

sometimes not be protective of labour rights as human rights should not be seen as a

reason to reject the character of certain labour rights as human rights. What it means is

that both the law and the attitude of the judiciary should change if labour rights are

human rights at a normative level, which is the question that the section that follows

addresses.

c. The normative approach

The third approach to the question whether labour rights are human rights, views it as a

theoretical (rather than positivistic and instrumental) and normative (rather than

descriptive) issue. It does not necessarily engage with positive law or activists’ strategies,

(though it has implications for the law, its development and its interpretation), but

examines the issue as a matter of moral truth.

55 For a typical example of scepticism towards the human rights movement, see D Kennedy, ‘The

International Human Rights Movement: Part of the Problem?’, (2001) European Human Rights Law Review

245. 56 See the excellent discussion in R West, Re-Imagining Justice, Ashgate, 2003, pp 86-92.

This line of thinking is the one least taken in labour law scholarship and in human rights

theory, but literature on it has started to appear in recent years.57 The emerging

scholarship questions the nature of labour rights as human rights. This view was usefully

summarised in a recent piece by Hugh Collins, which can serve as a starting point for the

present discussion. Collins examined possible justifications for labour law in human

rights theory,58 and defined human rights as rights that are accorded to all human beings

by virtue of their humanity. These are ‘universal and imperative, with a special moral

weight that normally overrides other considerations’.59 Collins accepted that labour rights

do not have some key characteristics of human rights that we find in this definition, and

should therefore not be categorised as such.60 Four arguments were said to support this

position.

The first argument against labour rights as human rights is that they do not represent the

same urgent and compelling moral claims (the ‘non-compellingness thesis’). The second

argument is that labour rights are not universally applicable as other human rights (the

‘non-universality thesis’). According to the third argument, labour rights do not embody

standards that are strict enough (the ‘non-strictness thesis’). The final argument is that

labour rights evolve over time, while universal human rights embody timeless,

fundamental needs (‘the non-timelessness thesis’). On this view, because labour rights are

not human rights, we should not be seeking a justification for labour law in human rights

theory, meaning most probably the natural law tradition. This does not mean that we

cannot turn to other justifications in liberal political theory where there may be potential

to give a certain degree of priority to labour law issues in developing a theory of justice.61

Is it correct to say that labour rights are not human rights?

57 J Nickel, Making Sense of Human Rights, Blackwell, 2007; on the right to work, see J Nickel, ‘Is There a

Human Right to Employment?’, (1978-1979) Philosophical Forum 149; M Risse, ‘A Right to Work? A Right

to Leisure? Labor Rights as Human Rights’, (2009) 3 Law and Ethics of Human Rights 1. 58 H Collins, ‘Theories of Rights as Justifications for Labour Law’, in Davidov and Langille (eds), The Idea of

Labour Law, OUP, 2011, p 137. 59 Collins, as above, p 140. 60 See Collins, as above, pp 140-144. However, Collins goes on to explore labour rights as liberal (political)

rights. 61 Collins explores this argument in the essay.

Labour rights as compelling claims

One of the key characteristics of human rights is that they are claims that prohibit grave

moral wrongs.62 In this sense, at least certain labour rights are compelling and qualify as

claims that prohibit such moral wrongs. A number of examples can be used to show this.

A human right that is compelling and absolute is the prohibition of torture. The right not

to be tortured and ill-treated, frequently presented as a paradigm of a universal human

right, is an extremely compelling moral claim. There is something deeply demeaning in

suffering emotional humiliation and physical pain, and a right to be protected from this

conduct can readily be recognised as an essential in a catalogue of human rights.

There is similarly something deeply degrading and humiliating in being ill-treated by an

employer, and examples of serious abuse in the workplace exist the world over. The

living and working conditions of domestic workers in the UK, for instance, can

exemplify this. In a recent report by Kalayaan, an NGO working on migrant domestic

workers in the UK, it was said that in 2010, 60% of those who registered with it were not

allowed out unaccompanied, 65% had their passport withheld, 54% suffered

psychological abuse, 18% suffered physical abuse or assault, 3% were sexually abused,

26% did not receive adequate meals, and 49% did not have their own room. Their

working conditions were exploitative: 67% worked seven days a week without time off,

58% had to be available ‘on call’ 24 hours, 48% worked at least 16 hours a day, 56%

received a weekly salary of £50 or less.63 It should not come as a surprise that abusive working conditions such as these have been classified as instances of ‘modern slavery’ in

scholarship, documents of governmental and non-governmental organisations, and case

law of courts,64 in a manner that illustrates how compelling the underlying interests of

those affected can be.

The right to privacy, to bring another example, is a human right of central importance,

which entails, at the least, a right to be left alone by the authorities in order to act and

develop relations that each person finds meaningful, without external interference.

62 J Tasioulas, ‘On the Nature of Human Rights’, in Ernst and Heilinger (eds), The Philosophy of Human

Rights, Gruyter, 2011, p 17 at 22. 63 M Lalani, Ending the Abuse, Kalayaan, 2011, p 10.

64 See the discussion in V Mantouvalou, ‘The Many Faces of Slavery: The Example of Domestic Work’,

forthcoming in (2012) Winter/Spring Global Dialogue.

Similarly, protection of workers’ privacy against employer interference is an equally

compelling claim. Dismissal because of private activities – intimate relationships, for

instance – leads to a loss of dignity and a stigma that does not differ much from the loss

suffered when the state monitors the intimate relations of citizens and punishes them for

such relations. It is a mistake to think that the right to privacy against state interference is

more fundamental than the right to privacy against employer interference.65

At the same time, it may be said that the right to deny the Holocaust, which has been

recognised as an aspect of freedom of expression, is not a claim of great moral urgency –

and in fact is of less importance if compared to a right to paid holidays that is used as an

example of a non-urgent labour right.66 On this point, it should be noted that the fact

that the right to paid holidays is included in the UDHR does not necessarily mean that it

is a human right in the sense discussed in this section. Equally, it is important to add that

the importance of a right to paid holidays should not be underestimated. For people

living in poverty and working very long hours with very low pay, having no holidays with

pay might mean having no time-off work at all, since they would not be able to afford it.

Leisure is essential for a worker, though, and being unable to rest is exhausting. As Jack

Donnelly underlines in response to Cranston, ‘the full right recognized is a right to “rest,

leisure, and reasonable limitation of working hours and periodic holidays with pay”.

Denial of this right would indeed be a serious affront to human dignity; it was, for

example, one of the most oppressive features of unregulated nineteenth century

capitalism’.67 It would also be a serious denial of freedom. Work is a key means to earn

one’s living, and resources are inextricably linked to freedom.68 Holidays without pay

could lead to unfreedom for the neediest.

Labour Rights as Universal Claims

The second argument, namely that labour rights are not universal because they apply

only to workers and not to everyone, is again prone to criticism. That a right is

65 For analysis, see V Mantouvalou, ‘Human Rights and Unfair Dismissal: Private Acts in Public Spaces’,

(2008) 71 Modern Law Review 912. 66 M Cranston, What are Human Rights?, The Bodley Head Ltd, 1973, pp 66-67. 67 J Donnelly, Universal Human Rights, Cornell University Press, 2nd ed, 2003, p 28. 68 On the links between freedom and property, see GA Cohen, ‘Freedom and Money’, available at

http://www.howardism.org/appendix/Cohen.pdf. See also J Waldron, ‘Homelessness and the Issue of

Freedom’, in Liberal Rights – Collected Papers, CUP, 1993, p 309.

http://www.howardism.org/appendix/Cohen.pdf

conditional upon a particular status does not mean that it is not a human right. The

corresponding duties may be conditional upon a certain status, as Tasioulas has argued.69

The example of migrants’ rights can illustrate this point. It is a well-established principle

in human rights and refugee law, for instance, that states should not extradite foreign

nationals to countries where they may be subjected to torture.70 The fact that the right-

holder is a migrant in this example, namely someone who resides outside her home

country, and not each and every person at any time, does not make it any less of a

universal human right. What it means is that the corresponding duties will come into

existence when a person becomes a migrant. The same can be said about the rights of

prisoners. That these rights are attached to the status of someone as an imprisoned

person does not mean that they are not universal human rights. What makes them

universal human rights is that if and as soon as any person is found in this position –

becomes a worker, a migrant, or is imprisoned – that person will be entitled to be treated

with the respect that universal human rights require.

At this point, it should be said that not all conditions in the specification of duties that

correspond to human rights are acceptable. Making the prohibition of torture conditional

upon citizenship status, for instance, would be inappropriate. Certain constraints on

conditions may be appropriate then.71 The status of someone as a worker, though,

cannot be regarded as an inappropriate condition for the classification of labour rights as

human rights, because it is ‘not unduly remote for all human beings given the socio-

historical conditions to which the existence of the right has been indexed’.72 To conclude

this section, it can be said that every human being’s relevant rights should be protected,

as soon as she has a particular status. Every human being’s labour rights should be

protected, as soon as she becomes a worker. It is in that sense that labour rights can be

seen as universal human rights.

69 Tasioulas, above n 62, p 37. 70 Chahal v UK, App No 22414/93, Judgment of 15 November 1996. 71 Tasioulas, above, n 62, pp 38-39. 72 Tasioulas, as above, p 39.

Labour Rights as Stringent Claims

The third characteristic that is supposed to differentiate labour rights from human rights

– the non-strictness of labour rights – can also be questioned. The argument is that the

content of labour rights, such as a right to minimum pay, varies from one country to the

other, and is therefore dependent on what each society can afford. It is not a stringent

entitlement of an absolute minimum that all countries ought to respect. It should be

noted that if this argument is correct, it would mean that other social rights, like a right

to basic subsistence or housing, are not human rights for the very same reason, namely

because their precise content may vary depending on a country’s resources.

Yet human rights are normative standards on the analysis of this section. The fact that a

particular society at a given point in time is incapable of complying with a right, such as

the right to housing, because of resource-constraints, does not imply that the right is not

stringent. There is a stringent normative standard towards which this society ought to

strive.

In law, the way in which compliance with duties that involve resources should be

assessed, has been illustrated by the UN Committee on Economic Social and Cultural

Rights, which provides authoritative interpretations of the UN Covenant on Economic,

Social and Cultural Rights. The Committee explained that while the fulfilment of social

rights depends on the availability of resources, some of the corresponding duties, such as

the prohibition of discrimination, are immediately effective. This is true with certain

labour rights too, such as the prohibition of discrimination in the workplace: certain of

the obligations that they impose are immediate.

Moreover, the steps towards the ‘progressive realisation’ of social rights, when there are

resource implications, ought to be taken immediately, and be ‘deliberate, concrete and

targeted as clearly as possible towards meeting the obligations recognised in the

Covenant’. Legislation might be essential in order to fulfil the relevant obligations; yet

the state should also take all other appropriate measures. Finally, there is always a

minimum core of social rights that the authorities ought to protect, which is described as

follows in General Comment No. 3:

10. […] a minimum core obligation to ensure the satisfaction of, at the very

least, minimum essential levels of each of the rights is incumbent upon every

State party. Thus, for example, a State party in which any significant number

of individuals is deprived of essential foodstuffs, of essential primary health

care, of basic shelter and housing, or of the most basic forms of education is,

prima facie, failing to discharge its obligations under the Covenant […]

In assessing whether the state complies with its minimum core obligations, the

Committee pays attention to resource constraints, but in order for a country to blame

scarce resources for its failure to comply with the minimum core, it has to show that it

has made very serious effort to address its minimum core duties.73 The fact that certain

labour rights may require resources and may, for this reason, face challenges in

implementation when resources are scarce, is not a characteristic that necessarily

distinguishes them from other human rights.

It should be added that resource constraints may also affect the application of rights

that are universal on the classification that Collins puts forward. All rights can have

positive and resource-demanding aspects, and if we only recognized negative aspects,

our conception of rights would be impoverished and would not capture crucial

instances of rights violations. This point becomes evident both in literature and in case

law discussed earlier.74 For example, in order to comply with the prohibition of torture,

inhuman and degrading treatment, prison conditions ought to be decent. That states

may blame limited resources for inhuman conditions, does not render these conditions

compatible with human rights principles. This was exemplified in the recent judgment

of the ECtHR M.S.S. v Belgium and Greece,75 which involved, among other issues, the

living conditions of an asylum seeker who was destitute because of lack of state support.

The Court rejected the argument that economic considerations have a role to play in

assessing the compatibility of state conduct with article 3 of the ECHR that prohibits

inhuman and degrading treatment.76

That certain labour rights depend on resources, then, should not be seen as an argument

against their classification as human rights. It can be said that when resources are limited,

73 For further discussion, see M Craven, The International Covenant on Economic, Social and Cultural Rights,

OUP, 1995, chapter 3. 74 S Holmes, C Sunstein, The Cost of Rights: Why Liberty Depends on Taxes, Norton, 1999; V Mantouvalou, in

Gearty, Mantouvalou, Debating Social Rights, Hart, 2011, pp 111-113; S Fredman, Human Rights Transformed,

OUP, 2008; R West, Re-Imagining Justice, Ashgate, 2003, chapter 3. 75 M.S.S. v Belgium and Greece, App No 30696/09, Grand Chamber judgment of 21 January 2011. 76 M.S.S., as above, paras 223-224.

rights that depend on resources, such as minimum pay, impose an obligation of conduct

and not always an immediate obligation of result. By accepting that they are human

rights, though, what we mean is that all societies, even the poorest ones, ought to strive

to achieve them.

Labour Rights as Timeless Entitlements

The fourth and final objection that is used to support the claim that labour rights are not

human rights is the variability over time. The argument is that ‘labour rights may evolve

according to the system of production, the forms of work, and the division of labour’,77

while other human rights are timeless. It should be said at this point that timelessness has

been rejected in some scholarship looking at the normative core of human rights.78 If we

accept that it is a key feature, though, following the literature discussed in this section, we

can question whether this characteristic is apposite to labour rights. To take another

human right as an example, the fact that technological advancements may make the

protection from invasions of privacy more complex than in the past does not mean that

the right to the protection of a person’s privacy is not a timeless claim. The claim is

timeless but its particular expression changes depending on external factors. Similarly,

labour rights such as the right to decent working conditions and the prohibition of

slavery present abstract claims, which do not vary overtime: ‘slavery is prohibited’, for

instance. Some of their more specific requirements, though, will depend on the system of

production and will vary over time. Some of these more specific rights might be

classified not as human rights but as a separate category, that of ‘labour standards’, which

will be discussed later on. Importantly, though, certain labour rights are human rights,

which are viewed as abstract normative standards, and these claims are timeless.

In fact, it can be said that the character of human rights as abstract standards makes

them particularly appropriate for providing the fundamentals of the employment

relation. This is because labour rights that attain the status of human rights do not have

to be revised when the system of production changes. They entail abstract principles that

are always applicable, irrespective of the historic circumstances. It is this abstract

77 Collins, above n 58, pp 142-143. 78 See Tasioulas, above n 62, p 35.

normative standard that is timeless, and against which the actual working conditions in

different periods of time should be assessed.

Theoretical literature that questions the nature of labour rights as human rights seems to

have overstated the differences between the two groups of claims. The answer to the

question whether labour rights are human rights is probably more complex and subtle.

A case study

What emerges from the above is that certain labour rights are not necessarily and by

definition different in nature to other human rights. It can, therefore, be said that some

labour rights are human rights on the normative analysis, while there are others that

involve the detailed regulation of the employment relation, and these can be called

‘labour standards’.79 What is the relationship between labour rights as human rights and

other more detailed labour standards? These are not mutually exclusive and can

complement each other, as a recent example from the ILO exemplifies.

On the 100th session of the International Labour Conference, in June 2011, the ILO

adopted Convention No 189 and supplementing Recommendation No 201 regulating

the terms and conditions of work for domestic workers.80 In regulating the work of

domestic workers, the Convention adopts a human rights approach. Already from its

Preamble it makes reference to numerous international human rights instruments, such

as the International Covenant on Civil and Political Rights (ICCPR) and the International

Covenant on Economic, Social and Cultural Rights (ICESCR). Article 3(1) states that

Member States ‘shall take measures to ensure the effective promotion and protection of

the human rights of all domestic workers, as set out in this Convention’ and Article 3(2)

highlights the importance of freedom of association, the elimination of forced labour, the

abolition of child labour, and the elimination of discrimination. It also places emphasis

on private life rights of domestic workers (article 6) and the potential for abuse in the

privacy of the employers’ household (article 5). These provisions reflect the special

challenges of the public/private divide that characterise the domestic labour relation. The

Convention expresses desirability for state intervention in a location that is at the time

79 The ILO uses the term labour standards. 80 This section draws on E Albin, V Mantouvalou, ‘The ILO Convention of Domestic Workers: From the

Shadows to the Light’, (2012) Industrial Law Journal (forthcoming). The piece contains detailed analysis of

the new Convention.

the domestic worker’s workplace, but also the employers’ and the workers’ home (when

they are live-in domestic workers).

The human rights provisions set in the ILO document highlight the universal

entitlements of these workers, who are often excluded from protective labour legislation.

At the same time, both the Convention and the Recommendation contain a list of

detailed labour standards, which aim at addressing the special challenges faced by

workers in this sector of the labour market. Article 10 of the Convention and paragraphs

8-13 of the Recommendation address the issue of work time, which is one of the

defining elements of domestic workers’ sectoral disadvantage,81 resulting from their work

within the household establishment and the personal relationship they have with those

receiving their care. The provisions aim to limit the constant availability of workers to

their employers and better manage their work hours. Another example is Article 13 of

the Convention that addresses health and safety regulations noting that these should be

taken, ‘with due regard to the specific characteristics of domestic work’. This will

ultimately require further development of the hazards that domestic workers face. A

further example of a more detailed labour standard is paragraph 14 of the

Recommendation aimed at dealing with the consequences of living in and with

deductions of accommodation and food.

The methodology of the ILO in the Domestic Workers’ Convention that ties a human

rights approach in the regulation of domestic labour to concrete principles that target the

problems of a specific sector exemplifies how labour rights as human rights can be

intertwined with labour standards in law. The human rights approach recognises the

universality, and the moral weight and urgency of domestic workers’ claims. The labour

standards (or sectoral) approach offers a focus on the particular challenges that workers

in a specific sector face, making the general human rights principles more subtle and

precise.

Implications

The position that certain labour rights are human rights seems to be the one that has

primacy, and also has implications for the future development of the law and activists’

81 On the term ‘sectoral disadvantage’, see E Albin, Sectoral Disadvantage: The Case of Workers in the British

Hospitality Sector, Oxford, DPhil dissertation, 2010, introduction and chapter 1.

strategies in both previous approaches: the positivist and the instrumental. Some

implications will be discussed in this section, though there is much scope for further

analysis. First, that certain labour rights are human rights means that if courts do not fare

well in their protection, or if constitutions and human rights treaties do not incorporate

them, the law should change in order to comply with human rights as normative

standards. Legal change should be the aim of supporters of workers’ interests.

Second, human rights are stringent entitlements, which resist trade-offs.82 A key debate in

labour law revolves around its purpose as a body of rules that promotes workers’ dignity,

on the one hand, or economic efficiency, on the other. Some scholars suggest that the

competing interests are irreconcilable, while others argue that protection of workers leads

to a more efficient labour market.83 By accepting that certain labour rights are human

rights, we endorse the view that labour law is governed by various human rights principles

that by definition are immune from arguments of economic efficiency. Treating workers

below a basic level of protection because it is economically advantageous is inconsistent

with the realisation that labour rights are human rights. The recognition that certain

labour rights are as stringent as other individual rights necessarily implies that any trade-

offs with economic efficiency goals ought to be scrutinised very strictly.

Third, the position that some labour rights are human rights also becomes important

when considering the personal scope of labour rights. Looking at migrant workers that

are unlawfully employed in case law from various jurisdictions, courts have ruled that

when someone is an irregular migrant, the employment contract is unlawful. Labour

rights are tied to citizenship or regular residence, on this view, so anyone that lacks this

status is not a right-holder.84 If some labour rights are viewed as human rights, this

position is put into question. The Inter-American Court of Human Rights addressed the

issue of the rights of undocumented migrants in a landmark Advisory Opinion, which

examined rights, such as the prohibition of forced and child labour, fair working

conditions, and freedom of association. It stated that:

‘The safeguard of these rights for migrants has great importance based on the principle

of the inalienable nature of such rights, which all workers possess, irrespective of their

82 J Griffin, On Human Rights, OUP, 2008, p 76. 83 See, for instance, S Deakin and F Wilkinson, ‘Rights v Efficiency? The Economic Case for Transnational

Labour Standards’ (1994) 23 Industrial Law Journal 289. 84 See, for instance, the notorious Hoffman Plastic Compounds v NLRB, 535 US 137 (2002).

migratory status, and also the fundamental principle of human dignity embodied in

Article 1 of the Universal Declaration, according to which “[a]ll human beings are born

free and equal in dignity and rights. They are endowed with reason and conscience and

should act towards one another in a spirit of brotherhood.”85

Fourth, the endorsement of the view that certain labour rights are human rights can have

implications when considering the question of the waiver of rights, which is critical in

labour law.86 A key concern for this field of study is the inequality of bargaining power

between the employer and the worker.87 As a result of this inequality of power, the

employment contract is most of the times subject to little negotiation. It is drafted by the

employer, and given to the worker on a ‘take it or leave it’ basis.88 This contract may

contain terms that are unfair, to which the worker would not have agreed had it not been

for the power imbalance and the economic dependency. For example, it may include

provisions that exclude important rights involving working conditions, such as the right

to privacy in the workplace. By recognising that certain labour rights are human rights,

agreement to waive them must be closely scrutinised.

3. Conclusion

This article examined three approaches to the question whether labour rights are human

rights, which are usually not distinguished in literature. The underlying belief is that even

though all three approaches can be valuable, it is important to realise that they are

separate. The positivistic approach identifies the key legal documents and rights as

protected therein, but does not have the tools to address discrepancies and problems in

interpretation. The instrumental approach – no doubt a very important one – examines

the strategies that those that are committed to workers’ interests can use with success, as

well as the possible drawbacks in pursuing each of these strategies. A possible

shortcoming of it is that its proponents are sometimes disappointed when courts or

other governmental or non-governmental organisations fail in the protection of labour

rights as human rights, and this leads them to a rejection of human rights as fundamental

85 Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, 17 September

2003, Inter-AmCtHR (Ser A) No 18 (2003). 86 See G Morris, ‘Fundamental Rights: Exclusion by Agreement?’, (2001) 30 Industrial Law Journal 49. 87 P Davies and M Freedland, Kahn-Freund’s Labour and the Law, Stevens, 1983, p 18. 88 See the discussion in H Collins, Employment Law, 2nd ed, OUP, 2010, pp 6-7.

principles altogether. Importantly, though, failures in the practical achievements of

judicial bodies, as well as the human and labour rights movements, are not determinative.

This is because human rights are, primarily and above all, normative standards, and

certain labour rights, as it was argued in the third section, are human rights. Certain

labour rights are compelling, stringent, universal and timeless entitlements, as much as

rights such as the prohibition of torture or the right to privacy. If the law falls short of

their protection, the response should be that the law ought to change. The recognition

that certain labour rights are human rights, to conclude, does not imply that human

rights exhaust labour law as a field of study. What it implies is that some labour rights are

stringent normative entitlements, and this should be reflected in law.

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Justice on Our Fields: Can “Alt-Labor” Organizations Improve

Migrant Farm Workers’ Conditions?

Manoj Dias-Abey*

This article examines how non-traditional labor organizations, also known as “alt labor,” can improve the working conditions of migrant farm workers in the United States and Canada. I consider the work of three labor organiza- tions—the Agricultural Workers Alliance (Canada) (“AWA”), Justice in Motion (U.S.) (“JIM”), and the Coalition of Immokalee Workers (U.S.) (“CIW”)—by focusing on the variety of “legal engagements” that these organizations have to create better working conditions for migrant farm workers. I argue that labor organizations engage with the law in numerous ways, including: improving the rights consciousness of workers; supplementing the work of regulators to in- crease compliance; undertaking private enforcement of their own; instituting new rights and entitlements through court challenges; building and coalescing social movements; and designing and implementing private regulatory system. I find that the AWA and JIM perform important work to build the rights conscious- ness of workers and improve compliance with existing legal standards in ways which public regulators are unable to do. However, most workers do not bring forth claims because they fear employer retaliation. The CIW, on the other hand, has devised a private regulatory system that overcomes some of the limitations of public regulatory systems, for example, by allowing farm workers to vindicate their rights regardless of their migration status. Most importantly, the CIW’s private regulatory system requires business entities at the top of the supply chain to take responsibility for working conditions on farms. This system engages with the political economy of the food system because those businesses at the top of the supply chain are best positioned to effect working conditions. I conclude by suggesting that labor organizations actively trying to achieve justice on our fields, like the AWA, JIM and CIW, may point the way for a rejuvenated labor movement.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 R I. MAKING SENSE OF THE WORK OF LABOR ORGANIZATIONS: A

TYPOLOGY OF LEGAL ENGAGEMENTS . . . . . . . . . . . . . . . . . . . . . . . 174 R A. Building rights consciousness . . . . . . . . . . . . . . . . . . . . . . . . 175 R B. Improving compliance with statutory standards . . . . . . . . 177 R

* Postdoctoral Fellow, Centre for Law in the Contemporary Workplace, Faculty of Law, Queen’s University (Canada); B.A., LL.B., LL.M. (UNSW), Ph.D. (Queen’s). Earlier drafts of this article were presented at the Law & Society Conference in June 2016, U.C. Berkeley Centre for the Study of Law and Society’s Visiting Scholar Speaker Series in October 2016, and Cornell ILR School’s ILRLR/ICL Workshop Series in February 2017. I would like to thank the participants at these fora for their helpful comments. I am also grateful to Harry Arthurs, Kevin Banks, Brishen Rogers and Matt Canfield who read early versions of this arti- cle and gave me invaluable advice for improving it. Thanks also to the editors of the Harvard Civil Rights-Civil Liberties Law Review for their constructive suggestions. Finally, I owe a huge debt of gratitude to the Agricultural Workers Alliance, Justice in Motion, and Coalition of Immokalee Workers for agreeing to participate in my study. The author wishes to make clear that in his legal opinion these organizations are not “labor organizations” for the purposes of the National Labor Relations Act and Labor Management Reporting and Disclosure Act.

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168 Harvard Civil Rights-Civil Liberties Law Review [Vol. 53

C. Using litigation to win new rights for migrant farm workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 R

D. Drawing on law as a strategic resource to achieve secondary objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 R

E. Devising and enforcing private regulatory systems . . . . . 180 R II. LEARNING FROM THE FIELD: THREE PROTOTYPICAL LABOR

ORGANIZATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 R A. Agricultural Workers Alliance . . . . . . . . . . . . . . . . . . . . . . . . 185 R

1. Building rights consciousness across the entire labor migration cycle . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 R

2. Promoting compliance with a range of laws . . . . . . . 186 R 3. Using litigation to win collective bargaining

rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 R B. Justice in Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 R

1. Building rights consciousness . . . . . . . . . . . . . . . . . . . . . 186 R 2. Improving compliance by facilitating private

enforcement across borders . . . . . . . . . . . . . . . . . . . . . . 188 R C. Coalition of Immokalee Workers . . . . . . . . . . . . . . . . . . . . . . 192 R

1. Building an effective private regulatory system . . . . 193 R III. WHEN CAN LABOR ORGANIZATIONS MAKE A DIFFERENCE? . . . 205 R

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 R

INTRODUCTION

Recent times have seen the emergence of new types of labor organiza- tions (“labor organizations” or “organizations”), colloquially known as “alt-labor,” which seek to improve wages and conditions for working peo- ple. These organizations have arisen in a context where traditional unions struggle to contain powerful market forces in North America, forces that have returned working conditions to a level reminiscent of the early days of the industrial revolution.1 Representing another face of the labor movement, these organizations draw on a variety of innovative legal and political strate- gies to achieve their objectives, acutely demonstrating the human capacity for resilience, ingenuity, and creativity. They often serve immigrant workers in low-wage industries that unions have struggled to represent. A growing number of scholars from a variety of disciplines have attempted to critically analyze their potential.2

1 See, e.g., Arne L. Kalleberg, Precarious Work, Insecure Workers: Employment Relations in Transition, 74 AM. SOCIOL. REV. 1, 5 (2009) (arguing that most work in the United States was precarious before the 1930s, and the stable, secure employment that characterized indus- trial employment in the three decades following WWII was an exception to this. According to Kalleberg, however, the dynamics of precarious employment today are notably different).

2 See, e.g., NEW LABOR IN NEW YORK (Ruth Milkman & Ed Ott eds., 2014); JANICE FINE, WORKER CENTERS (2006); RUTH MILKMAN, L.A. STORY (2006); Seth D. Harris, Don’t Mourn—Reorganize! An Introduction to the Next Wave Organizing Symposium Issue, 50 N.Y.L. Sch. L. Rev. 303 (2005/06); EMERGING LABOR MARKET INSTITUTIONS FOR THE

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2018] Justice on Our Fields 169

This article contributes to this growing literature by studying the work of labor organizations aiming to improve the conditions of migrant workers in the fruit and vegetable sector in the United States and Canada. Fruit and vegetable production, an extremely labor-intensive process, is responsible for engaging the vast majority of waged farm workers in the agricultural sector.3 One of the most notable features of fruit and vegetable production in North America is that the workforce is primarily comprised of migrants.4 Waged farm workers mostly fall into one of three categories: recent immi- grants, temporary or seasonal workers entering under temporary migrant worker programs, or undocumented migrants.

Dismal working conditions have been a continuous feature of the agri- cultural sector. For example, the intrepid muckraking journalist, Carey Mc- Williams, surveyed the state of farm workers’ conditions in California in 1939 and found that the “housing situation was indescribably wretched,” “health and sanitary conditions were. . .equally appalling,” and farm work- ers were struggling to support their families on “incredibly low wages.”5 This picture has changed little in the intervening period.6 Farm workers earn sub-poverty wages,7 work seasonally only when there is work, are subject to

TWENTY-FIRST CENTURY (Richard B. Freeman et al. eds., 2004); JENNIFER GORDON, SUBUR- BAN SWEATSHOPS (2005); Jennifer Gordon, We Make the Road by Walking: Immigrant Work- ers, The Workplace Project, and the Struggle for Social Change, 95 HARV. C.R.-C.L. L. REV. 407 (1995).

3 See PHILIP L. MARTIN, PROMISE UNFULFILLED 9-10 (2003). 4 While it may be problematic to use the catch-all term “migrant” to refer to a group of

workers with vast cultural, ethnic and linguistic differences, my use is simply intended to analytically group a range of workers incorporated into North American agriculture in a simi- lar way.

5 CAREY MCWILLIAMS, FACTORIES IN THE FIELD 316–22 (1939). 6 See, e.g., SETH HOLMES, FRESH FRUIT, BROKEN BODIES (2013) (providing a richly tex-

tured account of the lived experiences of migrant farm workers in the United States); SOUTH- ERN POVERTY LAW CENTER, CLOSE TO SLAVERY (2013), https://www.splcenter.org/sites/ default/files/d6_legacy_files/downloads/publication/SPLC-Close-to-Slavery-2013.pdf [https:// perma.cc/LT3P-45FY] (providing a portrait of current farm working conditions in the United States); FARMWORKER JUSTICE, NO WAY TO TREAT A GUEST (2011), https://www.farmwork erjustice.org/sites/default/files/documents/7.2.a.6%20fwj.pdf [https://perma.cc/H8NL-4EY5] (same); OXFAM, LIKE MACHINES IN THE FIELD (2004), https://www.oxfamamerica.org/static/oa 3/files/like-machines-in-the-fields.pdf [https://perma.cc/3MDP-RMPN] (same); UNITED FOOD AND COMMERCIAL WORKERS CANADA, THE STATUS OF MIGRANT FARM WORKERS IN CANADA (2010–2011), http://www.ufcw.ca/templates/ufcwcanada/images/awa/publications/UFCW-Stat us_of_MF_Workers_2010-2011_EN.pdf [https://perma.cc/X4PP-RYJ9] [hereinafter UFCW, 2011 REPORT] (providing an overview of the situation in Canada); UNITED FOOD AND COM- MERCIAL WORKERS CANADA & CANADIAN LABOUR CONGRESS, NATIONAL REPORT: STATUS OF MIGRANT FARM WORKERS IN CANADA (2002) [hereinafter UFCW & CLC, NATIONAL RE- PORT] (same).

7 U.S. DEP’T OF LABOR, FINDINGS FROM THE NATIONAL AGRICULTURAL WORKERS SURVEY (NAWS) iii (2013–2014), https://www.doleta.gov/agworker/pdf/NAWS_Research_Report_12 _Final_508_Compliant.pdf [https://perma.cc/GQ5X-XS4Z] (noting that U.S. farm workers earned a mean and median income of between $15,000 to $17,499 from agricultural employ- ment in the previous year); STATISTICS CANADA, EMPLOYMENT INCOME STATISTICS IN 2010, 2011 NATIONAL HOUSEHOLD SURVEY: DATA TABLES, http://www12.statcan.gc.ca/nhs-enm/ 2011/dp-pd/dt-td/Rp-eng.cfm?LANG=&APATH=3&DETAIL=0&DIM=0&FL=A&FREE =0&GC=0&GID=0&GK=0&GRP=0&PID=106738&PRID=0&PTYPE=105277&S=0&

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discrimination and harassment by labor contractors and supervisors,8 and are exposed to dangerous occupational hazards.9 Often, repaying debts incurred as a result of illegally charged “recruitment fees” further reduces the take home pay of migrant workers.10 The working conditions of farm workers presents in stark form the situation facing many precarious workers in North America today.

A number of factors are responsible for this situation. I suggest that powerful economic transformations, such as increased international competi- tion, growing operating costs and more demanding buyers, are affecting ag- ricultural employers and applying downward pressure on the working conditions of farm workers.11 Equally important, farm workers are excluded from many of the legal protections available to other workers.12 In the United States, for example, farmworkers are excluded from the application of the federal National Labor Relations Act13 (“NLRA”) and vast swathes of the Fair Labor Standards Act14 (“FLSA”). In Ontario, one of Canada’s most fecund provinces for fruits and vegetable production, farm workers are ex- cluded from the general labor relations statute and several important em-

SHOWALL=0&SUB=0&Temporal=2013&THEME=98&VID=0&VNAMEE=& VNAMEF= [https://perma.cc/UW9U-9QNB] (reporting that Canadian agriculture and horti- culture workers earned a median wage and salary of CDN$11,608).

8 See, e.g., THE FARMWORKER SEXUAL VIOLENCE TECHNICAL ASSISTANCE PROJECT, SEX- UAL VIOLENCE AGAINST FARMWORKERS 10 (2010), https://www.splcenter.org/sites/default/ files/ovw_legalproviders.pdf [https://perma.cc/E8G5-WNKE]; Richard Kamm, Extending the Progress of the Feminist Movement to Encompass the Rights of Migrant Farmworker, 75 CHI.- KENT. L. REV. 765, 769 (2000); Maria M. Dominguez, Sex Discrimination and Sexual Harass- ment in Agricultural Labor, 6 AM. U. J. GENDER & SOC. POL’Y & L. 231, 240–42 (1997).

9 See, e.g., BON APPÉTIT MANAGEMENT COMPANY FOUNDATION & UNITED FARM WORK- ERS, INVENTORY OF FARMWORKER ISSUES AND PROTECTIONS IN THE UNITED STATES (2011), https://www.oxfamamerica.org/static/oa3/files/inventory-of-farmworker-issues-and-protec tions-in-the-usa.pdf [https://perma.cc/6ZB8-L7CS] (setting out the occupational health and safety issues of farm workers in the United States); U.S. DEP’T OF AGRICULTURE, PROFILE OF HIRED FARMWORKERS (2008), http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article =1564&context=key_workplace [https://perma.cc/Y3MN-FSUU] (same); Arthur L. Frank et al., Issues of Agricultural Safety and Health, 25 ANNU. REV. PUBL. HEALTH 225 (2004) (same); Janet McLaughlin et al., Paper vs. Practice: Occupational Health and Safety Protec- tions and Realities for Temporary Foreign Agricultural Workers in Ontario, 16-2 PERSPEC- TIVES INTERDISCIPLINAIRES SUR LE TRAVAIL ET LA SANTÉ (2014) (providing an overview of the occupational health and safety issues facing farm workers in Canada); Michael Pysklywec et al., Doctors within Borders: Meeting the Health Needs of Migrant Farm Workers in Canada, 183 CAN. MED. ASSOC. J., no. 9, 1039 (2011) (same); Kerry Preibisch & Jenna Hennebry, Temporary Migration, Chronic Effects: The Health of International Migrant Workers in Ca- nada, 183 CAN. MED. ASSOC. J., 1033 (2011) (same).

10 See, e.g., Jennifer Gordon, Regulating the Human Supply Chain, 102 IOWA L. REV. 445, 448–49 (2017); FAY FARADAY, PROFITING FROM THE PRECARIOUS: HOW RECRUITMENT PRAC- TICES EXPLOIT MIGRANT WORKERS 32–36 (2014), http://metcalffoundation.com/wp-content/ uploads/2014/04/Profiting-from-the-Precarious.pdf [https://perma.cc/2MB9-DUTE]; VERITÉ, IMMIGRANT WORKERS IN US AGRICULTURE: THE ROLE OF LABOR BROKERS IN VULNERABILITY TO FORCED LABOR 6 (2010), http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article =2174&context=globaldocs [https://perma.cc/X65F-7H4Z].

11 See infra discussion Part II. 12 This varies from state to state in the United States, and province to province in Canada. 13 29 U.S.C. § 152(3). 14 29 U.S.C. § 203(5)(f).

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ployment standards. These exclusions were justified on the grounds that farming was primarily a family affair and the small number of waged labor- ers in the industry lived and worked alongside the owners.15 Despite this no longer being the case in the modern era of industrial agriculture, farmers and their powerful lobbies have continued to deploy these arguments to great effect to maintain the farming sector’s exceptionalism.16

In addition, farm workers have difficulty realizing the few labor rights they have as a consequence of the weak enforcement of labor standards by government agencies. Most scholars agree that “proactive enforcement,” through unannounced audits and inspections, is the most effective way to detect violations and provide redress for vulnerable workers.17 However, proactive enforcement of labor rights by public agencies tends to be weak, due to resource constraints, over-large mandates, and conflicting political priorities.18 This is especially the situation in the agricultural sector, where the scale of the problem seems to defeat bureaucratic resolve.

Collective action by farm workers has intermittently improved their plight. In the United States for example, farm worker mobilizations during the 1960s and 1970s, led by the United Farm Workers (“UFW”), managed to win a number of concessions. In this period, the minimum wage under the FLSA was extended to farm employers that employed more than 10 full- time workers, although farm employers continued to be exempt from over- time provisions and were permitted to use child labor.19 While farm workers continued to be excluded from the NLRA, in 1975, farmworker advocacy resulted in the passage of the Agricultural Labor Relations Act20 (“ALRA”) in California, which established collective bargaining rights for agricultural workers in that state based on the prevalent “Wagner Act-model” (which includes enterprise-level bargaining and the exclusive right of unions to ne-

15 MARTIN, supra note 3. R 16 See generally KATHRYN S. OLMSTED, RIGHT OUT OF CALIFORNIA (2015); Eric Tucker,

Will the Vicious Circle of Precariousness Be Unbroken? The Exclusion of Ontario Farm Work- ers from the Occupational Health and Safety Act, in PRECARIOUS EMPLOYMENT 256, 262 (Leah F. Vosko ed., 2006).

17 DAVID WEIL, IMPROVING WORKPLACE CONDITIONS THROUGH STRATEGIC ENFORCE- MENT: A REPORT TO THE WAGE AND HOUR DIVISION (2010), https://www.dol.gov/whd/re sources/strategicEnforcement.pdf [https://perma.cc/HW89-FXME]; LEAH F. VOSKO ET AL., NEW APPROACHES TO ENFORCEMENT AND COMPLIANCE WITH LABOUR REGULATORY STAN- DARDS: THE CASE OF ONTARIO, CANADA 100 (2011), http://digitalcommons.osgoode.yorku.ca/ cgi/viewcontent.cgi?article=1069&context=clpe [https://perma.cc/K2SU-KLFG].

18 David Weil, Enforcing Labour Standards in Fissured Workplaces: The US Experience, 22 ECON. LAB. RELAT. REV. 33, 34 (2011); VOSKO ET AL., supra note 17, at 26. R

19 Amy K. Leibman et al., Occupational Health Policy and Immigrant Workers in the Agriculture, Forestry, and Fishing Sector, 56 AM. J. IND. MED. 975, 976 (2013); Zama Cour- sen-Neff, FIELDS OF PERIL: CHILD LABOR IN US AGRICULTURE (2010), https://www.hrw.org/ report/2010/05/05/fields-peril/child-labor-us-agriculture [https://perma.cc/CTX9-BPUE] (esti- mating that several hundreds of thousands of children work in U.S. agriculture as a result of the FLSA because the FLSA does not contain the same prohibitions on child labor that apply to non-agricultural industries—e.g., children can work on the family farm at any age, and can work as hired farm workers after the age of 12).

20 Cal. Labor Code § 1166.3.

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gotiate on behalf of employees once majority support is established).21 Sub- sequently, the Migrant and Seasonal Agricultural Worker Protection Act of 198322 was passed federally, amending the much weaker Farm Labor Con- tractor Registration Act.23 Collective bargaining under the ALRA led to some notable successes in the 1970s. However, these gains were soon nulli- fied by concerted employer action, which included farmers vigorously con- testing union elections, committing unfair labor practices, engaging in surface bargaining, and utilizing strike-breakers.24 Traditional unions today continue to attempt to organize farm workers under collective bargaining regimes where they can. This is despite the well-known challenge of or- ganizing farm workers on an enterprise-by-enterprise basis, which the pre- vailing model demands.25

Alt-labor organizations, however, employ a range of different strate- gies. In this article, I consider case studies of three labor organizations work- ing to improve farm workers’ conditions in order to draw lessons that can be applied more broadly. I focus on the work of organizations rather than grass- roots movements because an organizational form is important for actors to agglomerate political, economic and cultural resources and fuse these with the creativity and motivation necessary to bring about change.26 The organi- zational form also allows labor organizations to experiment with legal and political engagements over a matter of several years, learning from mistakes and winnowing down those strategies that yield results. This is not to sug- gest that grassroots movements are not also significant players in improving the lives of migrant farm workers. In fact, labor organizations are often

21 Herman M. Levy, The Agricultural Labor Relations Act of 1975—La Esperanza De California Para El Futuro, 15 SANTA CLARA L. REV. 783, 785 (1975); MARTIN, supra note 3, R at 72.

22 29 U.S.C. §§ 1801–1872. 23 Pub. L. No. 88-582, 78 Stat. 920 (1964). 24 MARTIN, supra note 3, at Pt. II. R 25 See, e.g., LEAH F. VOSKO, Tenuously Unionised: Temporary Migrant Workers and the

Limits of Formal Mechanisms Designed to Promote Collective Bargaining in British Colum- bia, 43 IND. L. J. 451, 459 (2014); Eric Tucker, Farm Worker Exceptionalism: Past, Present, and the post-Fraser Future, in CONSTITUTIONAL LABOUR RIGHTS IN CANADA 30 (Fay Faraday et al. eds., 2012) (noting that are many challenges to organizing farm workers under the Wag- ner Act-model, which include: getting access to workers who may live on employer-owned residences, overcoming workers’ distrust of unions, building solidarity among a workforce that is linguistically and culturally diverse, and having to contend with various forms of employer resistance to unionization); Kate Andrias, The New Labor Law, 126 YALE L. J. 1, 67 (2016) (arguing that alternative model of sectoral bargaining might hold more promise for agricultural workers).

26 See, e.g., Marshall Ganz, Resources and Resourcefulness: Strategic Capacity in the Unionization of California Agriculture, 1959–1966, 105 AM. J. OF SOCIOL. 1003, 1041 (2000). See generally DOUG MCADAM, POLITICAL PROCESS AND THE DEVELOPMENT OF BLACK INSUR- GENCY, 1930–1970 (2d ed. 1999); ALDON D. MORRIS, THE ORIGINS OF THE CIVIL RIGHTS MOVEMENT (1986).

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deeply embedded in social movements, and thus, can be considered a form of “social movement organization.”27

The three labor organizations analyzed in this article have been selected for their prototypical value.28 Each performs different functions: the Agricul- tural Workers Alliance (“AWA”) support centers operate a network of worker centers that help workers claim their legal rights; Justice in Motion29 (“JIM”) facilitates cross-border litigation; and the Coalition of Immokalee Workers (“CIW”) monitors and enforces a private system of regulation that it devised. To study the work of these organizations I used a variety of means. First, I reviewed archival material, which included relevant docu- mentary and online sources—reports, annual reviews, websites and the like. I also reviewed secondary sources—such as journal articles, book chapters, and theses—that provide additional details about the organizations. Finally, I conducted interviews with key participants in each of the organizations, ei- ther by phone or in person.30 There are of course many more labor organiza- tions active in the field, and I would suggest that close examination of their strategies is warranted. In the meantime, deep contextual analysis of even three organizations reveals some significant insights.

I argue that labor organizations perform a number of important func- tions. To properly evaluate the impact of these strategies it is necessary to examine a range of contextual factors. It is for this reason that I consider the work of the AWA, JIM, and CIW against the background of the political economy of the food system. The relevant political economy includes how production and consumption is organized in the food system, particular fea- tures of the regulatory systems that govern farm workers’ working condi- tions, and the migrant status of the workers who lead lives materially and imaginatively affected by borders.

I find that the AWA and JIM perform important work to build the rights consciousness of workers and improve compliance with existing legal stan- dards in ways that public regulators are unable. However, most workers do not bring forth claims because they fear employer retaliation. The CIW, on the other hand, has devised a private regulatory system that overcomes some of the limitations of public regulatory systems, for example, by allowing farm workers to vindicate their rights regardless of their migration status.

27 See, e.g., Lauren B. Edelman et al., On Law, Organizations, and Social Movements, 6 ANNU. REV. LAW SOC’Y SCI. 653, 659-61 (2010); Mayer N. Zald & Roberta Ash, Social Move- ment Organizations: Growth, Decay and Change, 44 SOC. FORCES 327 (1966).

28 See, e.g., Bent Flyvbjerg, Five Misunderstandings About Case-Study Research, 12 QUAL. INQ. 219, 232 (2006); John Gerring, What is the Case Study and What is it Good For?, 98 AM. POLIT. SCI. REV. 341, 348 (2004).

29 Justice in Motion was formerly known as the Global Justice Workers Alliance. 30 The following people were interviewed, often on multiple occasions: Stan Raper (Coor-

dinator, Agricultural Workers Alliance), Cathleen Caron (Executive Director, Justice in Mo- tion), Nan Schivone (Legal Director, Justice in Motion), and Marley Moynahan (Communications Officer, Coalition of Immokalee Workers). Stan Raper, a mainstay of farm worker advocacy in Canada, tragically passed away in June 2017.

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Most importantly, the CIW’s private regulatory system requires business en- tities at the top of the supply chain to take responsibility for working condi- tions on farms. This system engages with the political economy of the food system because those businesses at the top of the supply chain are best posi- tioned to effect working conditions.

This article consists of three parts. In Part I, I provide a typology of the various strategies, or “legal engagements,” that labor organizations utilize. I introduce the term legal engagements to capture the various ways in which both public and private norms can be mobilized.31 In Part II of this article, I consider in detail the legal engagements of the AWA, JIM and CIW and evaluate their effectiveness. In the final part, Part III, I discuss the circum- stances under which labor organizations can improve farm workers’ conditions.

I. MAKING SENSE OF THE WORK OF LABOR ORGANIZATIONS: A TYPOLOGY OF LEGAL ENGAGEMENTS

The work of the UFW in the 1960s and 1970s, possibly the most well- known and successful example of organized resistance by farm workers in North America in recent history, provides a useful starting point to consider the relationship between law, organizations, and social transformation. When the UFW started organizing farm workers in California in the early 1960s, it faced several seemingly insurmountable obstacles: hostile growers, indifferent federal and state governments, labor law regimes that specifically excluded farm workers, and a labor migration program—the “Bracero” pro- gram—that gave employers ready access to a vast pool of unorganized workers from Mexico.32 Within the span of two decades, the UFW, with Cesar Chavez and Dolores Huerta at its helm, managed to transform work- ing conditions in the agricultural sector in California. It organized farm workers to secure agreements with hundreds of farm employers, forged im- portant links with sympathetic allies, brought pressure to bear on the federal government to end temporary labor programs that were intended as replace- ments for the Bracero Program, and at its zenith, secured the passage of labor relations legislation in California that gave farm workers the option of bargaining collectively with their employers for better working conditions.33

31 See generally Sally Engle Merry et al., Law from Below: Women’s Human Rights and Social Movements in New York City, 44 LAW SOC’Y REV. 101, 108 (2010); Michael McCann, Law and Social Movements: Contemporary Perspectives, 2 ANNU. REV. LAW SOC. SCI. 17, 18 (2006); STUART A. SCHEINGOLD, THE POLITICS OF RIGHTS (2nd ed., 2004); DAVID M. ENGEL & FRANK W. MUNGER, RIGHTS INCLUSION (2003); MICHAEL W. MCCANN, TAKING REFORM SERI- OUSLY (1986) (these sources cover the instrumental and cultural ways in which rights can used to effect social change). Since the extensive literature on “rights mobilization” does not ex- pressly consider the role of private regulation, I introduce the term legal engagements to en- compass the ways in which both public and private norms can be utilized.

32 See, e.g., KITTY CALAVITA, INSIDE THE STATE 122, 156 (1992). 33 See, e.g., GILBERT FELIPE MIRELES, CONTINUING LA CAUSA (2013); MARSHALL GANZ,

WHY DAVID SOMETIMES WINS 7 (2009); Jennifer Gordon, Law, Lawyers, and Labor: The

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Although the UFW’s successes in developing collective agreements to regulate labor conditions eventually proved to be fleeting, they do provide a valuable lesson for us today about the need to have a strategic orientation towards state law. The UFW started organizing workers in 1962, but it did not manage to win the passage of collective bargaining legislation until 1975.34 In the intervening period, the UFW managed to win 150 contracts with growers covering some 50,000 workers, often creatively using the law in a way that asked not only “what are our rights here?” but also “how can we best turn this legal situation to the union’s organizing advantage?”35 Le- gal engagement for the UFW during this period did not include relying upon the suite of labor and employment rights that we usually associate with worker advocacy. Instead, the UFW understood that law could build a sense that farm workers shared a common struggle and joint fate. In this way, by creatively and strategically engaging with legal categories and norms, the UFW used legal rights to build a movement. For example, the UFW brought a variety of legal claims and defended a range of suits initiated by farmers, and during these proceedings treated the court as a theater of resistance, often filling the courts with farm workers and their supporters.36

In this section, I unpack the variety of legal engagements that labor organizations have with law to create better working conditions for migrant farm workers. I introduce the term “legal engagements” to refer to both fairly conventional ways of using law (for example, seeking to improve compliance with existing laws and pursuing the expansion of the suite of rights that migrant farm workers can access) and less conventional ap- proaches, such as treating law as a cultural and political resource and build- ing private regulatory systems that mimic state regimes. In the tradition of socio-legal scholars, I consider these various actions to be interconnected because law and politics are closely intertwined.37

A. Building rights consciousness

One way in which labor organizations can empower workers is by in- forming them of their legal rights. Employment and health and safety stan- dards in the United States and Canada are enforced primarily through worker

United Farm Workers’ Legal Strategy in the 1960s and 1970s and the Role of Law in Union Organizing Today, 8 U. PA. J. LAB. & EMP. L. 1, 8 (2005); Miriam J. Wells & Don Villarejo, State Structures and Social Movement Strategies: The Shaping of Farm Labor Protections in California, 32 POL. & SOC’Y 291, 296 (2004); MARTIN, supra note 3. R

34 Agricultural Labor Relations Act, Cal. Labor Code § 1140 (1975). 35 Gordon, supra note 33, at 17. R 36 See id. 37 See generally Catherine Albiston, The Dark Side of Litigation as a Social Movement

Strategy, 96 IOWA L. REV. BULL. 61 (2011); Harry W. Arthurs & Brent Arnold, Does the Charter Matter?, 11 REV. CONST. STUD. 37 (2005); SCHEINGOLD, supra note 31; W. A. BO- R GART, COURTS AND COUNTRY (1994); MCCANN, TAKING REFORM SERIOUSLY, supra note 31; R JOEL F. HANDLER, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM (1978).

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complaints.38 In order for workers to be able to make a complaint to the relevant government authority, they must possess knowledge about their le- gal rights and entitlements. Although migrant farm workers are more than capable of recognizing exploitative working conditions, they may not have the necessary knowledge to recognize when their treatment constitutes a breach of a specific law, take the appropriate steps to lodge a complaint, and advocate for their entitlements through the relevant bureaucratic process.

Some socio-legal scholars caution that knowledge about the law does not necessarily translate into action.39 As a result, these scholars developed the notion of legal consciousness to explain how people understand and ex- perience law. As Laura Beth Nielson explains, “legal consciousness not only explores how people think about the law (consciousness about law) but also the ways in which largely unconscious ideas about the law can affect deci- sions they make.”40 This means that broader notions about the law may shape workers action (or inaction), and that knowledge does not always re- sult in self-advocacy.

In the case of migrant farm workers, their interactions with the law in their home countries (e.g. negative experiences with state officials) may af- fect their readiness to make use of formal law to resolve workplace issues.41 Furthermore, for undocumented migrants, fear of revealing their lack of au- thorization, a greater willingness to endure immediate pain for the attain- ment of long-term goals, and feelings of a lack of legitimacy, may inhibit claim-making.42

Of course, lack of self-advocacy through the legal-bureaucratic chan- nels does not mean that workers do not resolve disputes with their employers through alternative avenues,43 or register their resistance to exploitative working conditions in a myriad of other ways, such as walking off premises to protest health and safety concerns.44 Labor organizations should adopt a

38 See, e.g., VOSKO ET AL., supra note 17, at 5 (Canada); David Weil & Amanda Pyles, R Why Complain? Complaints, Compliance, and the Problem of Enforcement in the U.S. Work- place, 27 COMP. LAB. L. & POL’Y J. 59, 59 (2005) (United States).

39 See, e.g., Adrian A. Smith, Legal Consciousness and Resistance in Caribbean Seasonal Agricultural Workers, 20 CAN. J. L. & SOC’Y 95, 105 (2005) [hereinafter Smith, Legal Con- sciousness]; Laura Beth Nielsen, Situating Legal Consciousness: Experience and Attitudes of Ordinary Citizens about Law and Street Harassment, 34 LAW SOC’Y REV. 1055, 1059 (2000); PATRICIA EWICK & SUSAN S. SILBEY, THE COMMON PLACE OF LAW (1998); Austin Sarat, “. . .The Law is All Over”: Power, Resistance and the Legal Consciousness of the Welfare Poor, 2 YALE J.L. & HUMAN. 343, 344–47 (1990); SALLY ENGLE MERRY, GETTING JUSTICE AND GETTING EVEN (1990).

40 Nielsen, supra note 39, at 1058. R 41 See, e.g., Smith, Legal Consciousness, supra note 39, at 103–05. R 42 See Shannon M. Gleeson, Labor Rights for All? The Role of Undocumented Immigrant

Status for Worker Claim Making, 35 LAW & SOC. INQUIRY 561, 561 (2010). 43 See Catherine Albiston et al., The Dispute Tree and the Legal Forest, 10 ANNU. REV.

LAW & SOC. SCI. 105, 105 (2014). 44 See Adrian A. Smith, Racialized Justice: The Legal and Extra-Legal Struggles of Mi-

grant Agricultural Workers in Canada, 31 WINDSOR Y.B. ACCESS JUST. 15, 26 (2013) [herein- after Smith, Racialized Justice]; Smith, Legal Consciousness, supra note 39, at 105. R

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more nuanced understanding of rights consciousness when thinking about how they can help farm workers identify the ways in which their working conditions are exploitative, name the responsible party, and seek redress.

B. Improving compliance with statutory standards

Labor organizations can also work to improve compliance with existing legal standards. As Harry Arthurs notes, “[l]abour standards ultimately suc- ceed or fail on the issue of compliance,” 45 and unfortunately, compliance tends to be particularly poor in the agricultural sector.46 We know that em- ployers routinely ignore minimum employment standards that are designed to provide a basic floor of working conditions.47 In this context, the enforce- ment strategies adopted by regulators, which are charged with ensuring com- pliance with these laws, can play a major role in changing employer behavior to promote compliance.48 Labor organizations can assist public reg- ulators with their enforcement work, and take direct steps of their own.

How can labor organizations serve a useful role supplementing the en- forcement work of regulatory agencies? Generally speaking, most labor in- spectors use a combination of “reactive” and “proactive” methods to identify violations: reactive methods involve waiting for workers to come forward with complaints, and proactive methods involve agencies identify- ing non-compliant employers through audits and inspections.49 Workers may have difficulty making complaints because they lack knowledge about their rights and do not know how to navigate the complaints process.50 They may also fear the risk of reprisal by their employer.51 Given this context, labor organizations can play a role in helping workers prepare their claims and guide them through the complaints-resolution process.52 It is also possible to imagine labor organizations assisting directly with agencies’ proactive en- forcement efforts, for example, by monitoring for breaches of labor stan- dards and providing information and technical expertise.53 Because regulatory agencies cannot be present everywhere, labor organizations may have a comparative advantage with providing up-to-date information, which

45 HARRY W. ARTHURS, FAIRNESS AT WORK 53 (2006). 46 See, e.g., OXFAM, supra note 6, at 40. R 47 See id. 48 See WEIL, supra note 17. R 49 VOSKO ET AL., supra note 17, at 4–6. R 50 See Weil & Pyles, supra note 38, at 63–64. R 51 See id. 52 See, e.g., Matthew Amengual & Janice Fine, Co-enforcing Labor Standards: The

Unique Contribution of State and Worker Organizations in Argentina and the United States, 11 REG. & GOVERNANCE 129, 135 (2017); SHANNON GLEESON, CONFLICTING COMMITMENTS 27–28 (2012); Jennifer Gordon, The Lawyer is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 CALIF. L. REV. 2133, 2136 (2007); FINE, supra note 2. R

53 See, e.g., id.

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can help agencies determine their proactive inspection strategies.54 That is, labor organizations can act as “knowledge providers, watchdogs, [and] auditors.”55

Labor organizations can also undertake enforcement work of their own. They could provide information to farm employers who may not understand their legal obligations. What constitutes legal compliance is often ambiguous and dynamic, and labor organizations can shape more broadly what it means to be in compliance with legal rules.56 Where employment standards legisla- tion allows workers to sue employers directly, labor organizations can un- dertake this work. For example, in California, the Private Attorneys General Act57 allows private citizens to sue for certain “serious violations” of the California Labor Code, which previously could only be initiated by the state regulator, the Labor and Workforce Development Agency. Subsequent judi- cial decisions have also allowed these private suits to proceed as class ac- tions.58 Similarly, private actions are permitted under the federal FLSA. This provides labor organizations with another powerful avenue to promote compliance.

C. Using litigation to win new rights for migrant farm workers

Progressive movements have often looked to the courts as a source of social reform, particularly in circumstances where the political process has been unreceptive to their demands.59 Labor organizations may be able to engage with the courts in a similar manner to win new rights for migrant farm workers, for example, by invoking constitutional rights and principles.60

54 See, e.g., Janice Fine, Solving the Problem from Hell: Tripartism as a Strategy for Ad- dressing Labour Standards Non-Compliance in the United States, 50 OSGOODE HALL L.J. 813, 825–26 (2013); Janice Fine & Jennifer Gordon, Strengthening Labor Standards Enforcement Through Partnership with Workers’ Organizations, 28 POLITICS & SOC’Y 552, 553 (2010); JOHN BRAITHWAITE, REGULATORY CAPITALISM 64–86 (2008); BRIDGET M. HUTTER & JOAN O’MAHONY, THE ROLE OF CIVIL SOCIETY ORGANISATIONS IN REGULATING BUSINESS 5–6 (2004), http://www.lse.ac.uk/accounting/carr/pdf/dps/disspaper26.pdf [https://perma.cc/D333- 24ZS].

55 HUTTER & O’MAHONY, supra note 54, at 10. R 56 See LAUREN B. EDELMAN, WORKING LAW (2016). 57 Cal. Labor Code § 2698 et seq. (2004). 58 See, e.g., Blake R. Bertagna, PAGA: One Decade Later, 39 EMP. REL. L. J. 44, 47

(2013). 59 See, e.g., MCCANN, TAKING REFORM SERIOUSLY, supra note 31. R 60 For example, in Dunmore v. Ontario (AG), [2001] 3 S.C.R. 1016 (Can.), the United

Food and Commercial Workers Canada and the Agricultural Workers Alliance challenged the exclusion of farm workers from the collective bargaining regime in Ontario, arguing that it violated section 2(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitu- tion Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.) [hereinafter Canadian Charter]. Similarly, in Griego v. New Mexico Workers’ Compensation Administration, No. CV-2009-10130 (N.M. Dist. Ct. Bernalillo Cnty. Dec. 27, 2011), the New Mexico Center on Law and Poverty together with the National Center for Law and Economic Justice and the Sargent Shriver National Center on Poverty Law, brought a successful suit, which argued that

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The socio-legal literature highlights a number of criticisms about the use of litigation as a tool for progressive change. Some question whether constitution-based litigation actually improves the lives of those on whose behalf these suits are brought.61 There are several reasons for why court ac- tion might not provide results. Courts may be ill-equipped to receive and resolve issues involving collective interests because they are structured to privilege individual freedom and private ownership of property.62 Further- more, courts can only make declarations about rights, they cannot imple- ment them. In Gerald Rosenberg’s words, “court decisions, requiring people to act, are not self-executing.”63 Finally, critics question whether court-cen- tric tactics monopolize resources, dominate a movement’s priorities, and simply legitimate existing power arrangements.64

While perceptive, many of these criticisms depend on context. The Ca- nadian Supreme Court, for example, recently found that the right to strike— one of the most quintessentially collective activities—was constitutionally protected.65 Labor organizations may also be able to overcome some of the challenges through careful consideration and planning. For example, Rosen- berg’s objection can be overcome if court-centered strategies are accompa- nied by movements on the ground that continue to apply pressure on recalcitrant administrators to actualize the rights that have been won through litigation.

D. Drawing on law as a strategic resource to achieve secondary objectives

Advocates can also use legal mobilization to achieve aims other than simply winning in court. The law can serve as a cultural and political re- source regardless of whether the litigation succeeds.66 For the sake of analyt- ical clarity, many of these secondary effects can be categorized as either internal or external to the movement.67 Internal effects include those factors that relate to the movement itself, such as participants’ sense of identity and cohesion, and external effects encompass matters relevant to the targets of the movement.

the exclusion of farm and ranch laborers from the state’s Workers’ Compensation Act, N.M. Stat. § 52-1-1 et seq. (1996), breached the state constitution’s equal protection clause.

61 See, e.g., Judy Fudge & Harry Glasbeek, The Politics of Rights: A Politics with Little Class, 1 SOC. & LEGAL STUD. 45, 55 (1992); Arthurs and Arnold, supra note 37, at 38. R

62 See, e.g., BOGART, supra note 37, at 74. 63 See GERALD N. ROSENBERG, THE HOLLOW HOPE 15 (1993). 64 See, e.g., Orly Lobel, The Paradox of Extra-Legal Activism Critical Legal Conscious-

ness and Transformative Politics, 120 HARV. L. REV. 937, 942 (2007). 65 Saskatchewan Federation of Labour v. Saskatchewan, [2015] 1 S.C.R. 245, 248 (Can.). 66 See, e.g., SCHEINGOLD, supra note 31 (one of the earliest and most comprehensive artic- R

ulations of the case that rights are a contingent resource, which can serve a number of extrale- gal purposes).

67 See Albiston, supra note 37, at 63; Douglas, Winning Through Losing, 96 IOWA L. REV. R 941, 969 (2011) (analyzing the literature on rights mobilization using this distinction).

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Turning first to the internal secondary effects, labor organizations can use legal norms as a tool to build movements and collective power. The most obvious way in which labor organizations can do this is by using collective bargaining laws to organize workers. This avenue is mostly closed off for farm workers because, with the exception of California and some of the provinces in Canada (e.g. British Columbia, Manitoba), farm workers are excluded from collective bargaining regimes.68 However, legal norms can provide a language to name injustice and build a sense of entitlement, which can shape and strengthen movements.69 Michael McCann argues that “legal norms and traditions can become important elements in the process of ex- plaining how existing relationships are unjust, in defining collective group goals, and in constructing common identity among diversely situated citi- zens.”70 So, even if migrant farm workers do not technically enjoy particular labor rights, their exclusion from rights enjoyed by other workers can be framed in a way that promotes mobilization.

With respect to secondary external effects, legal mobilization may be a way to exact political concessions that would otherwise not be forthcom- ing.71 For example, by launching a constitutional challenge in 2003, unions managed to force the hand of the Ontario government to extend coverage of the province’s health and safety laws to farm workers.72 This means that law can be used as both a cultural and political resource.

E. Devising and enforcing private regulatory systems

The UFW routinely used consumer pressure to achieve better working conditions for farm workers; the Delano grape boycott was the most visible of these efforts.73 Similarly, as global economic production shifted in the later twentieth century from vertically integrated corporations to global sup- ply chains, activists turned to consumer pressure to force apparel companies based in the Global North to take measures to improve working conditions in their suppliers.74 From these efforts, activist-decreed codes of conduct, voluntary corporate social responsibility initiatives, and private certification systems (collectively “private regulatory systems”) developed to govern la-

68 See, e.g., National Labor Relations Act §152, 29 U.S.C. §§ 151–169 (1935) (defining employee as excluding agricultural laborers).

69 See generally Catherine R. Albiston, Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights, 39 LAW & SOC’Y REV. 11, 12 (2005); SCHEINGOLD, supra note 31; MCCANN, TAKING REFORM SERI- R OUSLY, supra note 31. R

70 McCann, Law and Social Movements, supra note 31, at 25–26. R 71 See, e.g., Albiston, supra note 37, at 64. R 72 Tucker, supra note 16, at 274–75. R 73 MARTIN, supra note 3, at 68–69. R 74 See generally JILL LOUISE ESBENSHADE, MONITORING SWEATSHOPS: WORKERS, CON-

SUMERS, AND THE GLOBAL APPAREL INDUSTRY (2004); GAY W. SEIDMAN, BEYOND THE BOY- COTT (2007).

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bor and environmental standards.75 Private regulatory systems usually have four discernible components: (a) privately set standards determined by a va- riety of stakeholders; (b) monitoring of compliance by accredited auditors; (c) certification or recognition of participating firms; and (d) the provision of information to consumers to institute boycotts in the event of non- compliance.76

In some cases, these initiatives have been in operation for several de- cades, and as a result, we know a great deal about the various factors that make private regulation effective.77 Learning from these experiences, labor organizations may be able to create domestic or transnational private regula- tory systems, enforced through market sanctions, as a way to improve work- ing conditions for the migrant farm worker community.

In Part II, I use the typology of legal engagements developed above to consider the work of three labor organizations active in supporting migrant farm workers in North America.

II. LEARNING FROM THE FIELD: THREE PROTOTYPICAL LABOR ORGANIZATIONS

Generating sharp, socially-engaged scholarship requires learning from organizations that are at the coalface of working with the migrant farm worker community. Studying the work of labor organizations active in as- sisting migrant farm workers can help provide insight into how the various legal engagements operate in practice.

In the following section, I describe the work of three labor organiza- tions—the AWA, JIM, and CIW—which I have studied using empirical methods, such as reviewing archival material and conducting interviews with key players. In the process of describing the labor organizations’ legal engagements, I also examine their effectiveness against the background of the political economy of the food system. The three main aspects of the political economy that are relevant for evaluating the legal engagements of labor organizations are: the way in which food is produced and consumed in

75 Tim Bartley, Institutional Emergence in an Era of Globalization: The Rise of Transna- tional Private Regulation of Labor and Environmental Conditions, 113 AM. J. SOCIOL. 297, 300–06 (2007).

76 Id. at 301. 77 See, e.g., RICHARD M. LOCKE, THE PROMISE AND LIMITS OF PRIVATE POWER (2013);

Tim Bartley, Transnational Governance and the Re-Centered State: Sustainability or Legality, 8 REG. & GOVERNANCE 93, 96–101 (2014); Frederick Mayer & Gary Gereffi, Regulation and Economic Globalization: Prospects and Limits of Private Governance, 12 BUS. & POL., no. 3, 1–2, 7–18 (2010); Dara O’Rourke, Monitoring the Monitors: A Critique of Corporate Third- Party Labour Monitoring, in CORPORATE RESPONSIBILITY AND LABOUR RIGHTS 196 (Rhys Jenkins et al. eds., 2002). The literature on private regulation reveals several important lessons: (1) the monitoring work of independent auditors is key to their implementation; (2) private regulatory systems work best when private standards are “layered” with public standards and local regulators are involved in their design and enforcement; (3) private regulations cannot substitute for strong local workers’ movements and worker voice.

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the contemporary era; the nature of the regulatory systems that govern work- ing conditions on farms; and the particular features of farm workers. The ultimate purpose of my empirical work is to generate findings about what legal engagements have allowed labor organizations to improve the working conditions of migrant farm workers given the nature of the food system in North America. The three aspects of the political economy identified above require some explanation.

First, fruit and vegetable production sits within a vast, global food sys- tem in which food is grown, processed, distributed, and ultimately con- sumed. Although the agricultural sector, which grows and produces the raw ingredients that become food, is a vital part, as Harriet Friedmann points out “[f]ood, not agriculture, is the appropriate unifying principle of politics and policy. . .[because]. . .[a]griculture has, in fact, been subordinated to food industries and services by agro-food corporations during the past half-cen- tury.”78 Three governing characteristics of the modern food system are: (1) trade liberalization;79 (2) the growth of agribusinesses that operate transna- tionally;80 and (3) concentration at every level of the food system.81 Each of these features impacts the efficacy of strategies adopted by labor organiza- tions. For example, due to the increasing competitive pressures faced by farmers because of trade liberalization and concentration among buyers that consequently exercize monopsony power, farmers seek to lower labor costs and demand greater flexibility from their workers.82 To take account of these broader trends, labor organizations might target those entities, such as buy- ers, with the most power to effect working conditions.

Second, the regulatory systems that govern working conditions on farms need to be carefully considered. Farm workers enjoy a patchwork of federal and state/provincial protections in Canada and the United States, and a number of different regulatory agencies hold mandates to enforce these regulations. Labor organizations must carefully negotiate a variety of gaps in

78 Harriet Friedmann, Food Politics: New Dangers, New Possibilities, in FOOD AND AGRA- RIAN ORDERS IN THE WORLD-ECONOMY 15, 29–30 (Philip McMichael ed., 1995).

79 See, e.g., Harriet Friedmann, The Political Economy of Food: A Global Crisis, 197 NEW LEFT REV. 29, 47 (1993); Harriet Friedmann & Philip McMichael, Agriculture and the State System: The Rise and Decline of National Agricultures, 1970s to the Present, 29 SOCIOLOGIA RURALIS 93, 103 (1989) [hereinafter Friedmann & McMichael, Agriculture and the State Sys- tem]; Philip McMichael, A Food Regime Genealogy, 36 J. OF PEASANT STUDIES 139, 150–51 (2009); Gabriela Pechlander & Gerardo Otero, The Neoliberal Food Regime: Neoregulation and the New Division of Labor in North America, 75 RURAL SOCIOL. 179, 179 (2010).

80 See, e.g., CORPORATE POWER IN GLOBAL AGRIFOOD GOVERNANCE 1 (Jennifer Clapp and Doris Fuchs eds., 2009); Friedman & McMichael, Agriculture and the State System, supra note 79, at 103; McMichael, A Food Regime Genealogy, supra note 79, at 145–46. R

81 See, e.g., PHILIP H. HOWARD, CONCENTRATION AND POWER IN THE FOOD SYSTEM (2016); Kerry L. Preibisch, Local Produce, Foreign Labor: Labor Mobility Programs and Global Trade Competitiveness in Canada, 72 RURAL SOC. 418, 427–28 (2007); U.S. DEP’T OF JUSTICE, VOICES FROM THE WORKSHOPS ON AGRICULTURE AND ANTITRUST ENFORCEMENT IN OUR 21ST CENTURY ECONOMY AND THOUGHTS ON THE WAY FORWARD (2012).

82 See, e.g., Preibisch, supra note 81. R

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regulatory coverage and enforcement when they seek to assist migrant farm workers.

Finally, it is no coincidence that farm workers tend to be primarily mi- grants because their migrant status justifies and renders invisible their treat- ment. In the United States, the agricultural sector historically provided ready employment for waves of immigrants with few other job options—this in- cluded the Chinese, Japanese and South Asian migrants before World War I, and migrants from the Philippines and Mexico in the 1920s.83 Since the 1940s, the major group of immigrants obtaining waged work in agriculture has been Mexicans.84 Another important component of the farm workforce is temporary or seasonal migrant workers who enter the United States under the H-2A visa program.85 The H-2A visa program allows temporary migrant workers to enter the U.S. to fill temporary or seasonal need (defined as not lasting longer than 12 months) where there are certified labor shortages.86 Although migrant farm workers under the H-2A program constitute a small component of the total agricultural workforce, the number of H-2A workers is quickly rising, with over a 100% increase noted in the period between 2012 and 2016.87 The H-2A visa program allows employers to bring in workers from any eligible country, and in 2016, 134,368 H-2A visas were issued.88 Undocumented migrant workers, however, comprise close to half the crop worker population, a state of affairs that has prevailed since the Bracero Program ended in 1964.89

83 See, e.g., CLETUS E. DANIEL, BITTER HARVEST 24–66, 108–09 (1981); MARTIN, supra note 3, at 36–43. R

84 See, e.g., CALAVITA, supra note 32, at 55, 218 (stating that most of the Mexican work- R ers who entered the United States between the period 1947–1964, did so under now-defunct Bracero Program; at its peak, the Bracero Program supplied 445,000 workers annually to farms); PHILIP L. MARTIN ET AL., THE NEW RURAL POVERTY 3–4, 13–18 (2006).

85 See, e.g., CINDY HAHAMOVITCH, NO MAN’S LAND 5 (2013) (noting that the precursor to the modern H-2A program was the H-2 visa program, which until the 1980s mainly provided temporary labor to sugar growers in Florida and fruit orchards in the North East); H-2A Visa, JUSTICE IN MOTION (Nov. 4, 2017, 2:03 PM), http://www.globalworkers.org/visas/h-2a [https:/ /perma.cc/PCS4-AHZF]. H-2A workers are found in almost all fifty states of the U.S., and work in crops ranging from apples to pears, tobacco to watermelons; however, H-2A workers tend to be concentrated in South-Eastern U.S. (North Carolina, Georgia, Louisiana, and Florida).

86 The rules governing the H-2A program are found in 8 U.S.C. § 1188 and Labor Certifi- cation Process for Temporary Agricultural Employment in the United States (H-2A Workers), 20 C.F.R. Part 655, Subpart B (the duration of a H-2A visa is generally one year, but a worker may apply to extend the visa as long as the maximum period of stay does not exceed 3 years. Workers from over 84 countries, including Mexico, El Salvador, Honduras, Belize, Guatemala and Jamaica, are eligible to participate).

87 U.S. DEP’T OF STATE, REPORT OF THE VISA OFFICE (2016), Table XVI(B). 88 Id. 89 See, e.g., U.S. DEP’T OF LABOR, FINDINGS FROM THE NATIONAL AGRICULTURAL WORK-

ERS SURVEY, supra note 7, at 53 (finding 47% of workers surveyed did not have the proper R work authorization); Philip L. Martin, Outlook: Immigration Reform and California Agricul- ture, 67 CAL. AGRIC. 196, 198 (2013) (stating the proportion of undocumented workers in California may be higher).

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The composition of the Canadian agricultural workforce provides an interesting counterpoint. In Canada, seasonal or temporary migrant workers entering under formal temporary migrant worker programs provide a signifi- cant proportion of the farm workforce.90 An agriculture-specific temporary migrant worker program has been in operation since 1966, known as the Seasonal Agricultural Worker Program (“SAWP”), and these workers have become a structurally embedded feature of the industry.91 It is generally as- sumed that undocumented workers form only a very small component of the workforce since the SAWP meets the agricultural sector’s labor needs. In 2015, 41,702 workers entered Canada under the SAWP.92 The SAWP allows workers to be brought in for periods of up to eight months each year to work in commodities deemed to be “seasonal.”93 The SAWP only allows farmers to bring in workers from countries with which Canada has bilateral agree- ments, which currently include Mexico, Jamaica and several other eastern Caribbean states. The vast majority of these workers end up in Ontario (58%), followed by British Columbia (17%) and Quebec (15%).94 In addi- tion, employers can also bring in temporary workers under the Agricultural Stream and the Stream for Low-Wage Positions of the general Temporary Foreign Worker Program (“TFWP”) for longer durations (up to two years). In 2015, 9,977 workers entered under the Agricultural Stream and a further 1,139 workers came under the Stream for Low-Wage Positions.95 The longer duration of the TFWP makes it a valuable tool for employers seeking work- ers for non-seasonal projects, such as, mushroom and greenhouse production.96

In the next part, I set out the work of the AWA, JIM and CIW and evaluate the various legal engagements of these organizations against the political economy of the food system in North America.

90 See ANN WESTON AND LUIGI SCARPA DE MASELLIS, HEMISPHERIC INTEGRATION AND TRADE RELATIONS: IMPLICATIONS FOR CSAWP (2003) (noting that workers under the SAWP contribute 45% of total employment hours in the commodities in which they are employed).

91 See generally VIC SATZEWICH, RACISM AND THE INCORPORATION OF FOREIGN LABOUR: FARM LABOUR MIGRATION TO CANADA SINCE 1945 (1991).

92 GOV’T OF CANADA, ANNUAL LABOUR MARKET IMPACT ASSESSMENT STATISTICS 2008- 2015, PRIMARY AGRICULTURE STREAM, https://www.canada.ca/en/employment-social-develop ment/services/foreign-workers/reports/2014/lmia-annual-statistics/agricultural.html [https:// perma.cc/B929-8UHY] (last visited Feb. 1, 2017) [hereinafter GOV’T OF CANADA, ANNUAL LABOUR MARKET IMPACT ASSESSMENT STATISTICS] .

93 Eligible commodities include fruits, vegetables, mushrooms, and tobacco. 94 GOV’T OF CANADA, ANNUAL LABOUR MARKET IMPACT ASSESSMENT STATISTICS, supra

note 92. R 95 Id. 96 Kerry Preibisch, Pick-Your-Own Labor: Migrant Workers and Flexibility in Canadian

Agriculture, 44 INT. MIGR. REV. 404, 428–29 (2010).

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A. Agricultural Workers Alliance

The AWA, which is an initiative of the United Food and Commercial Workers Canada (“UFCW”),97 operates a network of ten support centers in rural Canada where large numbers of migrant farm workers are employed. The support centers provide legal services, run information sessions, and organize social events for migrant farm workers entering under the SAWP and TFWP programs. Today, the AWA support centers are the “most acces- sible support system for temporary migrant agricultural workers in Canada.”98

In the summer of 2001, the UFCW, the Canadian Labour Congress and a number of other labor organizations provided funding for volunteers to travel around rural Southern Ontario to speak with migrant farm workers about their conditions of employment and housing.99 Southern Ontario is a fertile farming area that grows crops such as apples, peaches, pears, cherries, asparagus, cucumbers, sugar beets, tobacco, and tomatoes.100 The majority of migrant farm workers that enter Ontario under the SAWP work on farms in this region.101 The project, known as the “Global Care Van Project” (“Cara- van Project”), was “a portable outreach vehicle on wheels.” 102 The Caravan Project spoke to migrant farm workers to find out about their experiences in Canada. A former union organizer with the United Farm Workers (Canada), Stan Raper, led the Caravan Project. He was joined by a number of Spanish- speaking volunteers.

The Caravan Project made clear the need for a permanent center that could provide assistance to the migrant farmworker community.103 The UFCW had been trying to unionize SAWP farm workers since the 1970s,104 and given its limited success, the UFCW was moved to experiment with a “worker center” model. Janice Fine describes worker centers as “commu- nity-based mediating institutions that provide support to and organize among communities of low-wage workers.”105 In 2002, UFCW established the first

97 This initiative is also known by the acronym “TUAC” in the province of Quebec. 98 Giselle Valarezo, A Voice for the Silenced: UFCW Canada and the National Campaign

to Empower Vulnerable Migrant Agricultural Workers, 2 J. ACTIVIST SCI. & TECH. EDUC. 20, 20 (2010).

99 See UFCW & CLC, NATIONAL REPORT, supra note 6, at 3. R 100 See SATZEWICH, supra note 91, at 57–58. R 101 See GOV’T OF CANADA, ANNUAL LABOUR MARKET IMPACT ASSESSMENT STATISTICS,

supra note 92. R 102 Wayne Hanley, The Roots of Organizing Agricultural Workers in Canada in CONSTITU-

TIONAL LABOUR RIGHTS IN CANADA 57, 66 (Fay Faraday et al. eds., 2012). 103 Kerry Preibisch, Forcing Governments to Govern in Defence of Noncitizen Workers: A

Story about the Canadian Labor Movement’s Alliance with Agricultural Migrants: An Inter- view with Stan Raper, in ORGANIZING THE TRANSNATIONAL: LABOR, POLITICS, AND SOCIAL CHANGE 115 (Luin Goldring & Sailaja Krishnamurti eds., 2007).

104 Donald Swartz, Labour Rights and Union Strategies, 69 RELATIONS INDUSTRIELLES/ INDUSTRIAL RELATIONS 447, 447 (2014).

105 FINE, supra note 2, at 11. R

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support center in Leamington, Ontario, a town at the epicenter of the agricul- tural sector in Southern Ontario. Since then, nine other support centers have opened—three in Ontario, three in British Columbia, two in Quebec, and one other in Manitoba. In 2008, the UFCW launched the AWA to better coordinate the work of the various support centers.

The UFCW provides the AWA with all of its funding. As a consequence of this funding arrangement, the AWA operates as an outpost of the UFCW, although the AWA provides its services to the migrant farm worker commu- nity free of charge.

The AWA engages with the law in some very productive ways. First, the AWA attempts to the build rights consciousness of workers throughout the entire migration process, not just once workers are present in Canada. Sec- ond, the AWA promotes compliance by facilitating claims that cross a num- ber of jurisdictional boundaries by functioning as a “one-stop shop” for workers. On the other hand, my analysis of the AWA’s legal engagements also reveals one fundamental limitation: the AWA has aggressively pursued litigation as a tool to win social change without any significant effort to marry its judicial strategy with political mobilization.

1. Building rights consciousness across the entire labor migration cycle

The migrant status of farm workers requires interventions to build legal consciousness that span the entire “labor migration cycle.”106 The AWA’s rights consciousness work recognizes that workers’ knowledge of their legal rights can be improved before they arrive in their destination country, during the process of migration, and after they have arrived. The AWA acts at each of these points.

First, the AWA has established formal relationships with authorities in Mexico to distribute material about Canadian laws to workers before they arrive in Canada. To achieve this objective, the AWA recently signed several agreements with Mexican state and municipal agencies.107 Using these local partners, the AWA works to inform workers of their rights under the SAWP and TFWP, the applicable provincial labor regulations, and the locations of support centers that can assist workers who encounter difficulties. Although the Mexican authorities do provide some information to workers before they

106 FAY FARADAY, MADE IN CANADA: HOW THE LAW CONSTRUCTS MIGRANT WORKERS’ INSECURITY 5–6 (2012) (describing the concept of “labor migration cycle” in the context of the range of interventions necessary to assist workers entering under temporary migrant worker programs, but which can also be used in relation to recent immigrants and undocu- mented workers).

107 See, e.g., UFCW Canada and Michoacan’s SEMIGRANTE Sign New Agreement to Protect Migrant Worker’s Rights, UFCW CANADA (Dec. 21, 2015), http://www.ufcw.ca/index .php?option=com_content&view=article&id=30869:ufcw-canada-and-michoacan-s-semi grante-sign-new-agreement-to-protect-migrant-workers-rights&lang=en [https://perma.cc/ CTQ8-VKJ3].

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depart Mexico about their employment-related rights in Canada, the infor- mation that they provide is often partial and incomplete. Recently, some evidence came to light that Mexican authorities had advised their citizens not to participate in union organizing because they feared that employer complaints could jeopardize the continuance of the SAWP.108

Second, after the workers arrive, the AWA is able to access migrant farm workers by having support centers based in rural areas of Canada where the farming sector is concentrated (e.g. Southwestern Ontario, Fraser Valley and the Okanagan region in British Columbia, Portage La Prairie in Manitoba, and Saint-Eustache in Québec). Once they establish contact with the workers, the support centers educate workers about their rights and enti- tlements using multi-lingual pamphlets and workshops.

Third, in more recent times, the AWA has started to work closely with the Mexican consulates in Canada to improve their knowledge of local laws. Before the AWA began its work, the consulates lacked the resources to help workers,109 and in any event, they were insufficiently motivated to help their compatriots.110 The AWA’s work has resulted in the slow evolution in the attitude of staff at the Mexican consulate based in Leamington.111 Xóchitl Bada and Shannon Gleeson recently surveyed the extensive engagements that civil society organizations had with Mexican consular offices in the United States, which included consulates referring matters to relevant orga- nizations and working together to process claims.112 The Mexican consulates in Canada are still far from being this cooperative,113 and in fact, closer working relationships of this sort may not be possible in the Canadian con- text given the structural features of the SAWP.114 But even in the absence of these closer forms of cooperation, the AWA has been instrumental in inform-

108 See Certain Emps. of Sidhu & Sons Nursery Ltd. and Sidhu & Sons Nursery Ltd. v. UFCW, Local 1518, BCLRB No. B56/2014 (Can.), at 10 (alleging in proceedings before the British Columbia Labour Relations Board that Mexican workers were informed by representa- tives of the Mexican government not to participate in union activity while in Canada).

109 VEENA VERMA, THE MEXICAN AND CARIBBEAN SEASONAL AGRICULTURAL WORKER PROGRAM (2003), http://s3.amazonaws.com/migrants_heroku_production/datas/95/ Verma_2003_original.pdf [https://perma.cc/CGP2-LQZJ].

110 Christine Hughes, Costly Benefits and Gendered Costs: Guatemalans’ Experiences of Canada’s “Low-Skill Pilot Project,” in LEGISLATED INEQUALITY: TEMPORARY LABOR MIGRA- TION IN CANADA 146–47 (Patti Tamara Lenard & Christine Straehle eds., 2012).

111 Interview with Stan Raper, AWA Coordinator, conducted by phone (Dec. 15, 2015) [hereinafter Raper, Interview].

112 Xóchitl Bada & Shannon M. Gleeson, A New Approach to Migrant Labor Rights En- forcement: The Crisis of Undocumented Worker Abuse and Mexican Consular Advocacy in the United States, 40 LAB. STUDIES J. 32, 39–47 (2015).

113 Raper, Interview, supra note 111. R 114 The Mexican state, which has become dependent on the remittances sent back to Mex-

ico by farm workers, has an interest in seeing the SAWP continue. Under the SAWP, the Mexican state acts as a broker that selects workers and facilitates workers’ emigration. Fear of jeopardizing the program may dampen enthusiasm for more zealous advocacy by the Mexican government on behalf of its citizens.

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ing consular staff about the workers’ legal entitlements while in Canada so that they can pass this information on to their citizens.115

Government departments in Canada, at both the federal and provincial level, only provide information to workers once the workers have arrived in the country. In this context, simply providing information about workers’ rights in an impartial and comprehensive manner at the various stages of the migration cycle, represents an important legal engagement.

2. Promoting compliance with a range of laws

The staff and volunteers at the AWA support centers do a large amount of casework to help the workers claim their existing legal rights. The support centers have helped workers with wage theft claims under provincial em- ployment standards legislation; claims for Employment Insurance, Canada Pension Plan, and Quebec Pension Plan; obtaining coverage under provin- cial medical schemes; and workers’ compensation claims.116 The casework involves speaking to workers to find out about their issues, advising them of their rights, filling out forms, and helping workers navigate the process of making a claim.117 Workers can either come in person to see a staff member or volunteer at the AWA support centers, or alternatively, the AWA operates a 24-hour hotline that can answer any questions that workers may have.118 In 2010, for example, the support centers responded to 35,000 enquiries in the form of drop-in visits, phone calls, and outreach to workers on farms.119

This aspect of the AWA’s work supplements the efforts of regulatory agencies to receive and process claims in two main ways. First, the various public agencies are responsible only for enforcing the standards in their do- mains, and farm workers may have problems that cross a number of areas such as employment, health and safety, housing, and immigration. The AWA centers provide advice and support in a way that prioritizes the needs of the workers, which public regulators are unable to do because they operate in a more compartmentalized fashion. Second, once a complaint is lodged, Cana- dian regulatory agencies make little serious effort to meet the needs of work- ers who lead lives in multiple countries. The AWA operates an online database that helps workers keep track of their claims once a complaint has been lodged with a government agency.120 The database is particularly im- portant for migrant workers because it allows them to track their claims and

115 See Christina Gabriel & Laura Macdonald, Citizenship at the Margins: The Canadian Seasonal Agricultural Worker Program and Civil Society Advocacy, 39 POLITICS & POL’Y 45, 55 (2011).

116 See UFCW, 2011 Report, supra note 6, at 12–14. R 117 See Raper, Interview, supra note 111. R 118 See Valarezo, supra note 98, at 23. R 119 UFCW, 2011 Report, supra note 6, at 11–12. R 120 Id.

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provide any requested information to keep the claims progressing even when the workers are no longer in Canada.

The assistance that the AWA provides to workers to make legal claims runs up against the problem that most workers are afraid to complain. Work- ers under the SAWP and TFWP cannot meaningfully exercise their labor rights because the spectre of deportation haunts them.121 Workers are fearful that lodging a claim against their employer could result in retaliation in the form of the termination of their employment, which could lead to their de- portation.122 The SAWP allows farm employers the power to unilaterally ter- minate a worker’s employment. Unless the structural features of the SAWP and TFWP programs, which makes workers reliant on their employer’s be- neficence are first addressed, the AWA’s strategy of facilitating legal claims is unlikely to lead to significantly more workers asserting their rights.123

3. Using litigation to win collective bargaining rights

The UFCW, along with the National Union of Public and General Un- ions (“NUPGU”), has been at the forefront of seeking collective bargaining rights for migrant farm workers by making the argument that section 2(d) of the Canadian Charter of Rights of Freedom124 (“Canadian Charter”), which provides a guarantee of freedom of association, protects the right to collec- tively bargain. This litigation commenced before the formation of the AWA, and indeed even before the founding of the first support center in 2002, but there is an important link with farm workers: the original case was brought by the AWA’s patron on behalf of farm workers in Ontario because they were

121 See, e.g., Tanya Basok et al., Reproducing Deportability: Migrant Agricultural Work- ers in South-western Ontario, 40 J. OF ETHNIC AND MIGRATION STUDIES 1394, 1394 (2014); Gabrielle E. Clark, Coercion and Contract at the Margins: Deportable Labor and the Laws of Employment Termination Under U.S. Capitalism (1942–2015), L. & SOC. INQUIRY at 1, 3, 5, 7–8 (early access, Nov. 4, 2016); Judy Fudge & Fiona MacPhail, The Temporary Foreign Worker Program in Canada: Low-Skilled Workers as an Extreme Form of Flexible Labour, 31 COMP. LAB. L. & POL’Y J. 5, 43–44 (2009); Leah F. Vosko, Blacklisting as a Modality of Deportability: Mexico’s Response to Circular Migrant Agricultural Workers’ Pursuit of Col- lective Bargaining Rights in British Columbia, Canada, 42 J. OF ETHNIC AND MIGRATION STUDIES 1371, 1373–74 (2016); Mimi Zou, The Legal Construction of Hyper-Dependence and Hyper-Precarity in Migrant Work Relations, 31 INT’L J. OF COMP. LAB. L. 141, 151 (2015).

122 See, e.g., Chris Ensing, Labrador Whistleblowers’ ‘Heart is Broken,’ Faces Deporta- tion, CBC NEWS (Jan. 26, 2017), http://www.cbc.ca/news/canada/newfoundland-labrador/tfw- deportation-labrador-city-arhur-lorenzo-1.3953077 [https://perma.cc/A5WQ-WWGG] (describing how a migrant worker faced deportation after engaging in workplace advocacy); Aaron M. Orkin et al., Medical Repatriation of Migrant Farm Workers in Ontario: A Descrip- tive Analysis, 2 CAN. MED. ASSOC. J. E192, E192 (2014) (finding that in 2001–2011, 787 repatriations occurred in Ontario, mostly for medical reasons).

123 A number of features of the SAWP increase the vulnerability of farm workers by mak- ing them dependent on their employer’s goodwill. For example, if a worker’s employment is terminated, they lose their right to remain in the country unless they can find an alternative employer. Further, if a worker would like to return to Canada for future harvesting seasons, they must receive their employer’s nomination. These features of the program make workers reluctant to complain.

124 Canadian Charter, supra note 60. R

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excluded from the province’s collective bargaining regime. The UFCW (and NUPGU) had multiple reasons for bringing this litigation. One was to pro- vide protection for farm workers in Ontario to collectively organize, not- withstanding the challenges of organizing workers under the Wagner Act- model of collective bargaining.125 A second rationale was to use collective bargaining as a way to challenge the agricultural sector’s reliance on tempo- rary migrant workers.126 In Alberta and Manitoba where farm workers enjoy collective bargaining rights, the UFCW has been able to negotiate collective agreements requiring farm employers to nominate temporary migrant work- ers to obtain permanent residency through the Provincial Nominee Program (PNP). The PNP allows provinces to select categories of migrants that they want promoted for permanent residence. Yet another motivation was to halt the gradual corrosion of statutory collective bargaining rights for all workers.127

The UFCW’s attempt to use the Canadian Charter to entrench collec- tive bargaining rights commenced in the late 1990s, and has seen a number of twists and turns since it began.128 Farm workers in Ontario have been excluded from the collective bargaining regime that was implemented in On- tario in the 1950s, with the exception of a very brief period.129 In 2001, the UFCW brought a case on behalf of the excluded farm workers, arguing that the exclusion of agricultural workers from the province’s general labor rela- tions statute constituted a violation of these workers’ freedom of association rights. The Supreme Court ruled that farm workers were entitled to the “ex- ercise of certain collective activities, such as making majority representa- tions to one’s employer.” 130 However, the conservative provincial government in power at the time responded by enacting the Agricultural Employee Protection Act131 (“AEPA”), a specific collective bargaining re- gime for agricultural workers that only narrowly complied with the court’s ruling. The AEPA only allowed farm workers to present their claims to the employer, without any concomitant duty on the employer to consider these representations in good faith, and further, deprived farm workers of the right

125 See supra note 25. R 126 See generally Naveen Mehta, A Changing Union Tide Hurts Vulnerable Workers, in

UNIONS MATTER 115 (Matthew Behrens ed., 2014). 127 See LARRY SAVAGE & CHARLES W. SMITH, UNIONS IN COURT (2017); Eric Tucker,

Shall Wagnerism Have No Dominion?, 21 JUST LAB.: CAN. J. OF WORK & SOC’Y 1, 2 (2014). 128 See, e.g., FAY FARADAY, ET AL., CONSTITUTIONAL LABOUR RIGHTS IN CANADA 5–6, 15

(Faraday et al. eds., 2012) (containing insightful commentary on the Canadian Charter litiga- tion, including discussion of the decisions’ social context); Kevin Banks et al., 16 CAN. LAB. EMP. L.J. 177, 184, 234, 303–04, 327–29, 336–37, 361–64, 372–76, 420 (focusing on the legal implications of the litigation).

129 Tucker, supra note 25, at 36. R 130 Dunmore v. Ontario (Attorney Gen.), [2001] S.C.R. 1016, para. 30 (Can.). 131 Agriculture Employees Protection Act, S.O. 2002, c. 16 (Can.).

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to take strike action to further their claims.132 The UFCW’s efforts to chal- lenge the constitutionality of the AEPA failed, and it was found to pass con- stitutional muster.133 More recently, in response to another unrelated legal challenge, the Supreme Court of Canada ruled that section 2(d) also protects the right to strike,134 and since the AEPA does not explicitly protect this aspect of collective bargaining, its current legal status is once again unclear.

The decade-long litigation did not ultimately result in meaningful col- lective bargaining rights for farm workers. Some critics have pointed out that the UFCW/AWA’s orientation to the courts diverted valuable resources from more active political forms of struggle, such as organizing protest ac- tions and lobbying Parliament to change the laws.135 Drawing on the typol- ogy of legal engagements described, which emphasizes the cultural and political dimensions of litigation, the more salient critique is that the UFCW/ AWA failed to treat litigation as a cultural and political resource to strengthen movements and win political concessions.

The UFCW did not use litigation to build a popular movement, because it did not use the constitutional claim to tactically build public support and encourage popular mobilization, what Fay Faraday and Eric Tucker call “democratic constitutionalism.”136 For these authors, claims that have a con- stitutional imprimatur communicate that they “are supported by the funda- mental and widely shared norms of a just society.”137 During the life of the litigation to win collective bargaining rights for farm workers, the UFCW did not actively attempt to mobilize popular support among workers and the public.138 Not only did the UFCW/AWA fail to mobilize workers and their allies to take collective political action, its stated position implied that col- lective action could only result once legally sanctioned collective bargaining rights were achieved. The lack of a vibrant political campaign running alongside the constitutional litigation also meant that the UFCW could not use the court action to win political concessions when the courts proved unreceptive to the UFCW’s arguments.

In fact, the UFCW/AWA’s focus on constitutional litigation to win col- lective bargaining rights shows that legal action can sometimes act as a con- servative force that undermines more radical avenues. SAWP workers regularly engage in illegal “wildcat” strikes when conditions become un-

132 C.f. David J. Doorey, Graduated Freedom of Association: Worker Voice Beyond the Wagner Model, 38 QUEEN’S L.J. 512, 525–26 (arguing that the AEPA has some unrealized potential because it provides protection for farm workers to form collective organizations).

133 Attorney Gen. of Ontario v. Fraser, [2011] S.C.R. 3, 166 (Can.). 134 Saskatchewan Federation of Labour v. Saskatchewan, [2015] S.C.R. 245 (Can.). 135 Jonah Butovsky & Murray E.G. Smith, Beyond Social Unionism: Farm Workers in

Ontario and Some Lessons from Labour History, 70 LABOUR/LE TRAVAIL 69, 70, 93 (2007). 136 Fay Faraday & Eric Tucker, Who Owns Charter Values? in UNIONS MATTER 125,

126–29 (Matthew Behrens, ed., 2014). 137 Id. at 126. 138 See, e.g., SAVAGE & SMITH, UNIONS IN COURT, supra note 127. R

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bearable.139 For example, workers have set down their tools and left the em- ployer’s premises to protest imminent health and safety hazards. The UFCW/ AWA’s commitment to legally sanctioned collective bargaining prevented it from actively supporting these spontaneous and extra-legal forms of activ- ity.140 Given the difficulties that migrant farm workers have collectively or- ganizing under the Wagner-Act model, these other forms of strike activity might hold more promise for improving working conditions.141 It is worth remembering that some of the UFW’s early successes in California in the 1960s occurred as a result of wildcat strikes that took place in the absence of labor relations legislation.142 If the UFCW and AWA were not so heavily invested in officially sanctioned channels of collective bargaining, they might have been more open to recognizing and supporting extant expres- sions of collective power.

B. Justice in Motion

JIM is a unique organization based Brooklyn, United States that links employment advocates representing migrant farm workers with its network of Human Rights Defenders (“Defenders”) in the workers’ home coun- tries.143 Advocates who launch private litigation in the United States on be- half of migrant workers soon find that the workers’ transient status presents an enormous barrier to succeeding in court. Litigation often takes years to complete, and in most cases, migrant farm workers have returned to their countries of origin while the litigation process trudges on, with neither the means nor resources to stay involved in the process. The Defenders can as- sist because they have easier access to these workers once they have re- turned to their home countries. The Defenders can recruit workers for pending class actions, meet in person with the workers, organize depositions at their offices, ask the workers to fill out any outstanding paperwork, and facilitate the distribution of settlement or award amounts. In the words of JIM’s founder and Executive Director, Cathleen Caron, JIM has pioneered a form of “portable justice” for transnational workers who are denied their entitlements because of the strict procedural requirements created by court- based rights adjudication.144

139 See, e.g., Smith, Racialized Justice, supra note 44, at 27 n. 61. R 140 See Butovsky & Smith, supra note 135, at 84. R 141 Tucker, supra note 25, at 46, 50, 55–56 (arguing that farm workers have not been able R

to organize under this model, and in fact, strategies that “skirt around” the law might hold more promise).

142 MARTIN, supra note 3, at 66–71. R 143 The change in name from Global Workers Justice Alliance, which took place in January

2017, was in recognition of the fact that JIM had moved beyond labor issues to focus on raising awareness about migrant exploitation more generally, to include matters such as aban- donment, violence, persecution and human trafficking.

144 Cathleen Caron, Portable Justice, Global Workers, and the United States, 40 CLEARINGHOUSE REV. J. POVERTY L. & POL’Y 549, 550 (2007).

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In 2016, JIM’s Defenders allowed 111 legal actions to proceed that oth- erwise might not have.145 JIM’s Defender network assists advocates working with a range of migrant workers, including those working on farms, in food processing, and in hospitality. Roughly one-third of the cases that come through JIM’s doors are related to labor exploitation on farms.146

At present, JIM obtains the majority of its funding from two large pri- vate philanthropic foundations: Neo Philanthropy and Public Welfare. These foundations provide crucial funding to numerous progressive social causes. There are, however, quite a few drawbacks to relying on this type of fund- ing. For example, the money can suddenly disappear if a foundation decides that its priorities lie elsewhere147 and the process of applying for these funds, abiding by the terms of the award, and completing acquittal reports is ex- tremely resource-intensive.148 To overcome these drawbacks, JIM is looking to diversify its funding by appealing to individual donors.149

1. Building rights consciousness

JIM builds the rights consciousness of workers entering the United States by working closely with its Defenders, which form the backbone of JIM. JIM finds and trains organizations and individuals in migrant worker sending countries to form the network. At present, the Defender network is made up of close to 40 organizations and individuals in Mexico, Guatemala, El Salvador, Nicaragua and Honduras.150 Most organizational members of the Defender network are not labor organizations; they include feminist, In- digenous and Catholic Church legal clinics.151 The Defender network also includes three individual Defenders.152 JIM works with the Defenders and its other partners to distribute material on workers’ rights to workers in their own countries, and prior to their departure for the United States.

For two main reasons, the Defenders operate as effective “community brokers” and intermediaries to build the rights consciousness of workers. First, the Defenders are in a unique position to disseminate information to workers because they can utilize local partnerships and media to spread the message. For example, the Jornaleros SAFE project, which began in May 2010 as a joint endeavor between JIM, three organizations from the United

145 E-mail from Cathleen Caron, Justice in Motion to author (Jan. 24, 2017, 16:24 EST) (on file with author).

146 JUSTICE IN MOTION, 2016 RESULTS (on file with author). 147 Previously, JIM received most of its funding from the Ford and McArthur Foundations,

but this funding came to an end when these foundations shifted their focus. 148 See, e.g., THE REVOLUTION WILL NOT BE FUNDED: BEYOND THE NON-PROFIT INDUS-

TRIAL COMPLEX (Incite! Women of Color Against Violence ed., 2007). 149 Telephone Interview with Cathleen Caron, Exec. Dir., Justice in Motion (Dec. 21,

2015) [hereinafter Caron, Interview]. 150 Global Workers Justice Alliance, Defenders, http://www.globalworkers.org/advocates/

defender-network [https://perma.cc/TJ3B-7LN2] (last visited Feb. 2, 2017). 151 Id. 152 Id.

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States, one Mexican organization, and one Mexican foundation, estimates that it has been able to reach more than 100,000 workers through community radio to inform them of their rights as agricultural workers.153 The Defenders have also educated thousands of Mexican workers about the “Chamba Mex- ico” case, one of Mexico’s largest recruitment fraud schemes.154 Second, these Defenders raise the rights consciousness of the workers because they can reach them where they live, and since the Defenders often come from the same communities as the workers themselves, the workers have a high degree of trust in them. This allows the Defenders to provide information in a way that avoids the suspicion and skepticism, which often greets U.S.- based actors.

2. Improving compliance by facilitating private enforcement across borders

The Defenders’ main role is to facilitate the private employment actions of workers who lead transnational lives. Migrant farm workers have a num- ber of statutory rights in the United States,155 although in practice, immigra- tion laws often intersect with labor protections to make their realization difficult.156 Although these statutory rights are enforced by federal and state

153 GLOBAL WORKERS JUSTICE ALLIANCE, MEXICAN H2A FARM WORKERS IN THE U.S.: THE INVISIBLE WORKFORCE, JORNALEROS SAFE REPORT, EXECUTIVE SUMMARY (2013), www.globalworkers.org/our-work/publications/jornaleros-safe [https://perma.cc/WD8U- LZBX].

154 Our Impact: Program Summaries (2014), GLOBAL WORKERS JUSTICE ALLIANCE, http:// www.globalworkers.org/our-work/successes/2014-year-review [https://perma.cc/RY32- 3HHQ] (last visited Feb 2, 2017).

155 In the federal sphere, the minimum wage provisions in the FLSA apply to farm work- ers employed at farms with more than 10 full-time workers, although farm employers contin- ued to be exempt from overtime provisions. Further, the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801–1872 (1983) (AWPA) establishes a number of spe- cific employment standards for migrant and seasonal agricultural workers, including those relating to housing, transport, and record-keeping. Most importantly, the AWPA requires the registration of farm labor contractors and makes farm employers and farm contractors jointly responsible for worker entitlements. The AWPA does not apply to workers under the H-2A program because specific regulations cover their employment. Under these regulations, the Department of Labor enforces wage rates and contractual obligations that farm employers have towards H-2A workers, such as the guarantee that workers will be provided with 75% of the hours they were contractually promised, transportation and housing requirements, and disclo- sure and record-keeping duties. These regulations operate as provisions in the employee’s con- tract of employment. In addition, workers are also covered by the Occupational Health and Safety Act, 29 U.S.C. § 651 et seq. (1980), and a range of civil rights legislation. Laws in the various states may provide farm workers with greater rights. For example, in California, farm workers must receive the state minimum wage ($10.50 per hour as opposed to the federal $7.25), and will soon have an entitlement to overtime pay.

156 See Maria Ontiveros, Migrant Labour in the United States: Working Beneath the Floor for Free Labour?, in MIGRANTS AT WORK: IMMIGRATION AND VULNERABILITY IN LABOUR LAW 11–13 (Cathryn Costello and Mark Freedland eds., 2014).

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government agencies,157 some statutes, such as the FLSA, also contain a pri- vate right of enforcement.158 Critics argue that the Department of Labor does not do a sufficient job of enforcement,159 and therefore, private actions fill an enforcement void left by public agencies. However, private enforcement can never fully substitute for public efforts because workers bear a steep cost in claiming their rights through the court system.160

Private litigation, notwithstanding its limitations, can have three main benefits. First and foremost, it provides remedies for workers who have been denied their entitlements. Second, it acts as a deterrent to the specific em- ployer targeted by the action, sending a clear message that any future viola- tion will be punished. Finally, private actions can act as a general deterrent to other farm employers in the same industry or locality who may operate under the assumption that they will face no consequences for breaching the rights of their employees.

Litigation filed on behalf of workers often proceeds as class actions.161 These procedures offer an efficient way of achieving all three objectives.162 Private actions for individual farm workers are not usually viable because of the small amounts of money involved—even if the action is successful, the amount recovered might not meet the legal costs of bringing the claim. Class actions allow employment advocates to aggregate a number of claims so that the sum awarded meets all legal fees. The damages that can be awarded in class action cases also tend to be much higher, and as a result, these cases have a much bigger specific and general deterrence effect.163

Due to the transient nature of the lives that migrant workers lead, em- ployment advocates face a number of barriers to bringing legal claims on

157 These agencies include, for example, the federal Department of Labor (Wage & Hour Division and Occupational Health and Safety Administration), and the Equal Employment Opportunity Commission, or state equivalents.

158 29 U.S.C. § 216(b). 159 See, e.g., FARMWORKER JUSTICE, supra note 6, at 36–40. R 160 See Weil & Pyles, supra note 38, at 63–65. R 161 This includes collective actions under the FLSA or class actions under rules of civil

procedure. Fed. R. Civ. P. 23 and similar state civil procedure rules allow for class actions in many cases (for both statutory claims and common law claims—e.g. under anti-discrimination law, some state wage/hour laws, common law) when certain factual conditions are met. In class action litigation, individual class members are automatically included in any resolution unless they affirmatively opt-out. In contrast, the FLSA has a different and more difficult “opt- in” procedure that is commonly referred to as a collective, or representative, action—“An action to recover the liability prescribed in either of the preceding sentences may be main- tained against any employer (including a public agency) in any Federal or State court of com- petent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought” (§ 261(b)).

162 Telephone Interview with Nan Schivone, Leg. Dir., Justice in Motion (Jan. 6, 2015) [hereinafter, Schivone, Interview].

163 Cf. Samuel Estreicher & Zev J. Eigen, The Forum for Adjudication of Employment Disputes, in RESEARCH HANDBOOK ON THE ECONOMICS OF LABOR AND EMPLOYMENT LAW 5 (Cynthia L. Estlund & Michael L. Wachter eds., 2013) (noting the important caveat that court adjudication of employment disputes favor the well-resourced).

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their behalf. At the outset, lawyers have difficulty getting access to the workers, who generally live in housing on the employers’ property.164 Once a claim is lodged, advocates may need to obtain further information from af- fected workers during the litigation process. Even after a claim has com- menced, there are several procedural rules that prevent migrant workers from accessing justice.165 For example, the Federal Rules of Civil Procedure require plaintiffs in a lawsuit to participate in pre-trial discovery, which may include providing in-person testimony about the case.166 In circumstances where a farm worker has returned to their home country, advocates may have difficulty getting in touch with their clients to ensure their participation in the case.

To overcome these challenges, JIM links Defenders with employment advocates in the United States, acting as an intermediary to facilitate the litigation process. The Defenders can locate clients in their home countries and tell them about the opportunity to join litigation, help clients answer interrogatories, organize telephonic or on-site depositions, and assist with settlement and award distribution.167 The Defenders can navigate their local terrain, for example, circumventing some of the security threats created by the illicit “Narco trade.”168 They may be able to find clients who have lost contact with their advocates, and through personal interaction, encourage workers to exercise their rights and seek justice for legal violations. In many cases, Defenders are able to carry out these tasks because the workers, who may be fearful or distrustful of outsiders for a variety of reasons, place trust in them by virtue of being part of the same community.169

Defenders based in Mexico and Guatemala were recently instrumental to the success of two cases involving farm workers.170 The first concerned a claim against a large citrus company based in Florida. Orange pickers under the H-2A program who were paid a “piece rate”171 alleged that they were not provided with the “Adverse Effect Wage Rate”172 for Florida. The col-

164 Letter from Sarah Paoletti, Dir., Transnational Legal Clinic, Univ. of Penn. to Emilio Álvarez Icaza Longoria, Exec. Sec’y, Inter-Am. Comm’n on Hum. Rts. (Aug. 13, 2014) (on file with author) (stating that the U.S. does not have a consistent federal legal framework that governs advocates’ access to migrant workers living on camps; a confusing array of state laws, court decisions, and Attorney-General opinions regulate camp access, and in practice, local officials routinely ignore the legal protections even when they do exist).

165 Caron, Interview, supra note 149. R 166 See Fed. R. Civ. P. 16. 167 See Caron, supra note 144. R 168 Caron, Interview, supra note 149. R 169 Whitney Eulich, For Migrants, A Push for Cross-Border Justice, THE CHRISTIAN SCI-

ENCE MONITOR (Dec. 14, 2015), http://humantrafficking.csmonitor.com/for-mexicos-migrants- push-for-cross-border-justice [https://perma.cc/AY4T-YB9Y].

170 Schivone, Interview, supra note 162. R 171 In this case, the workers were provided with a rate of pay based on the amount of

oranges picked. 172 20 C.F.R. 655.120 (employers of H-2A workers must provide the highest of the Ad-

verse Effect Wage Rate, the prevailing hourly wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage).

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lective action that Florida Rural Legal Services initiated on behalf of the workers stalled because the Middle District Court of Florida required that affected workers provide signed interrogatories, and many workers had al- ready returned to Oaxaca, Mexico. JIM connected the lawyers with a De- fender based in the region who managed to collect the signed interrogatories. In another collective action against a large vegetable producer for violations relating to unpaid transportation costs, the Georgia Legal Services needed the services of a Defender in Guatemala to obtain the signed consent of workers. Both cases resulted in settlements.

Private enforcement, even accounting for class actions, can be likened to putting out spot fires and it is doubtful whether it has the capacity to drive long-term improvements in the agricultural sector. Most workers are afraid to pursue a legal claim against their employer for fear of retaliation.173 Other barriers to filing a claim may result from perceptions about the ineffective- ness or unfairness of the process.174 Further, even if a claim is filed, most claims are settled privately rather than being resolved by a court. Accord- ingly, these matters do not become a matter of public record, and therefore, do not demonstrate to other employers the dangers of non-compliance.

Recognizing this fact, JIM has recently redoubled its efforts to advocate for systemic change to the immigration system and to assist its Defenders fight for more protective laws in their home states. JIM has built up a “trans- national advocacy network” that it is putting to use for this new purpose. Margaret Keck and Kathryn Sikkink describe a transnational advocacy net- work as “actors working internationally on an issue, who are bound together by shared values, a common discourse, and dense exchanges of information and services.”175 Although this facet of JIM’s work is relatively new, by facilitating the exchange of knowledge between itself, advocates and De- fenders based in migrant-sending countries, the transnational advocacy net- work has the potential to influence legal and policy outcomes in multiple jurisdictions. Further, as sending states strengthen local laws, and as legal capacity to bring claims gradually develops among the Defenders, Caron predicts that the network will start to engage in more litigation in migrant- sending countries.176

C. Coalition of Immokalee Workers

The CIW is a grassroots collective of workers based in Immokalee, a small town in the Southwest horn of Florida. The CIW formed in the early 1990s when a group of farm workers from Mexico, Haiti and Guatemala decided to come together to take action to improve the dismal conditions on

173 See, e.g., Weil & Pyles, supra note 38, at 63–64. R 174 Id. 175 MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS 2 (1998). 176 Caron, Interview, supra note 149. R

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Florida’s fields. Recognizing that farm workers in Florida enjoyed few legal rights, and that government agencies were indifferent to enforcing the lim- ited rights that workers did have, the CIW decided to pursue a different path.

Today, the CIW is best known for the Fair Food Program, which covers the tomato industry in Florida. Florida produces 50% of the total volume of tomatoes consumed in the United States each year,177 and during the winter months, Florida meets 90% of the country’s tomato needs.178 The Fair Food Program binds participating large-scale buyers of tomatoes, such as fast food chains and supermarkets, to purchase tomatoes from growers observing la- bor standards set out in the Fair Food Code of Conduct & Selected Guidance (“Code of Conduct”). The CIW pressured buyers to purchase their produce from participating growers by mobilizing public support. It waged a public campaign that threatened fast food chains, food service companies and su- permarkets with loss of business and damage to reputation unless they agreed to take responsibility for labor conditions in their supply chains.179 At present, the Fair Food Program covers 90% of tomato growers in Florida, which employ close to 30,000 migrant farm workers.180 If a grower refuses to sign on to the Code of Conduct, or is found in persistent breach of its terms, it loses the ability to sell produce to participating buyers.

Prior to the CIW’s efforts, labor conditions on Florida’s tomato farms were some of the worst in the country.181 Workers would toil for 10–12 hours each day in blistering heat to pick tomatoes for which they were paid 40

177 Tomato 101, THE FLA. TOMATO COMM., https://www.floridatomatoes.org/tomato-101 [https://perma.cc/Y829-RGST] (last visited Oct. 6, 2017).

178 Steven Greenhouse, In Florida Tomato Fields, a Penny Buys Progress, N.Y. TIMES (Apr. 24, 2014), http://www.nytimes.com/2014/04/25/business/in-florida-tomato-fields-a- penny-buys-progress.html [https://perma.cc/2JKG-4NZZ].

179 Since 2000, the CIW has been campaigning to pressure large buyers of Florida’s toma- toes to sign on to the Fair Food Program. The CIW first targeted the fast food giant, Taco Bell, owned by Yum! Foods, which also owns the KFC and Pizza Hut chains. At first, Taco Bell was unwilling to agree to the CIW’s terms, citing the fact that the working conditions in its suppli- ers had little to do with the company. After a grueling five-year campaign, Yum! Foods even- tually capitulated. The CIW’s national campaign, run in concert with students and faith groups, was able to cause commercial damage to Taco Bell and credibly threaten Taco Bell’s reputa- tion. The boycott of Taco Bell that the CIW called between 2000 and 2005 was aided by the Student/Farmworker Alliance (SFA), which managed to pressure 25 schools, colleges and uni- versities to either remove or prevent new Taco Bell restaurants opening, or to end sponsorship agreements with Taco Bell. After further campaigning, the CIW was able to pressure McDonalds in 2007 to agree to its terms. Burger King, Whole Food Market and Subway fol- lowed suit in 2008. In March 2009, the SFA launched its “Dine with Dignity” campaign to pressure food service providers on campus to join the Fair Food Program. This ultimately led to Bon Appétit, Compass Group, Aramark and Sodexo acceding to the CIW’s demands. Trader Joe’s and Chipotle Mexican Grill signed in 2012, and Walmart and Fresh Market signed in 2014. There are still a number of businesses that operate in Florida that have not yet signed an agreement with the CIW—Wendy’s is the last of the five major fast food corporations and the Publix supermarket chain is one of the few remaining retailers. These corporations are cur- rently the targets of a wide-ranging campaign and boycott.

180 Campaign for Fair Food, COAL. OF IMMOKALEE WORKERS, http://ciw-online.org/cam paign-for-fair-food [https://perma.cc/GSQ4-M5LT] (last visited Feb. 1, 2017).

181 Sean Sellers & Greg Asbed, The History and Evolution of Forced Labor in Florida Agriculture, 5 RACE/ETHNICITY: MULTIDISCIPL. GLOBAL CONTEXTS 29 (2011).

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cents a bucket (roughly 32 lbs. of tomatoes).182 This meant that workers were forced to pick close to 2 tons of tomatoes (or 125 buckets) to make $50 per day.183 Rest periods were rare or non-existent. Female workers complained of sexual harassment and of routinely being asked to provide sex in ex- change for ongoing work.184 Even slavery and human trafficking were not unheard of—the Department of Justice brought seven claims of servitude against farm labor operations in Florida between 1998 and 2013.185 As a result, in this period, law enforcement authorities released more than 1,000 workers held as slaves by crew bosses.186

The situation on the ground has changed markedly since the implemen- tation of the Fair Food Program. The CIW’s Code of Conduct regulates working conditions such as wages, health and safety, workplace violence, and anti-discrimination.187 It also contains a sophisticated dispute resolution process that allows workers to make complaints about violations without fear of reprisal. Further, compliance with the Code of Conduct is subject to regular external auditing. The dispute resolution and auditing is carried out by an organization that is independent from the industry, called the Fair Food Standards Council (“Standards Council”). Judge Laura Safer Espinoza, a retired judge of the New York Supreme Court, currently is the head of the Standards Council.188

The CIW is not incorporated and has no legal personality. It does not contain a hierarchical decision-making structure, and in fact, all workers are encouraged to participate. The CIW has about 4,500 members although for- mal membership confers few additional benefits. All tomato workers in Im- mokalee and surrounding regions are welcome to join a fluid “board” of self-appointed members that meet on a monthly basis to determine the CIW’s campaign directions. Many of the original founders of the group are still active participants.

However, a formal structure is necessary for certain functions, such as applying and holding foundation grants. For these purposes, the Standards Council is incorporated and listed as a 501(c)(3) organization to have tax-

182 Eric Schlosser, Penny Foolish, N.Y. TIMES (Nov. 29, 2007), http://www.nytimes.com/ 2007/11/29/opinion/29schlosser.html [https://perma.cc/VQ5D-HA2D].

183 See id. 184 See John Bowe, Nobodies, THE NEW YORKER (Apr. 21, 2003), http://www.newyork

er.com/magazine/2003/04/21/nobodies [https://perma.cc/2KB5-VCPR]. 185 Sellers & Asbed, supra note 181. R 186 Id. 187 Fair Food Code of Conduct, FAIR FOOD STANDARDS COUNCIL, http://www.fairfoodstan

dards.org/resources/fair-food-code-of-conduct [https://perma.cc/EU3G-L9T3] (last visited Feb. 2, 2017).

188 Judge Laura Safer Espinoza, FAIR FOOD STANDARDS COUNCIL, http://www.fairfood- standards.org/about/judge-laura-safer-espinoza [https://perma.cc/EU3G-L9T3] (last visited Feb. 1, 2017); About, FAIR FOOD STANDARDS COUNCIL, http://www.fairfoodstandards.org/ about [https://perma.cc/PKX8-BXMT] (last visited Sept. 24, 2017).

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exempt status.189 The CIW receives most of its current funding from a few private philanthropic organizations. These amounts pay the CIW’s operating costs and staff wages. The CIW is acutely aware that operating in this man- ner is precarious because the loss of a single grant could cause havoc to its operations. As a result, the CIW is currently in the process of designing a Fair Food certification scheme that it can license to generate revenue on a more sustainable basis.190 The Fair Food certification would entitle retailers to mark either the tomatoes they are selling with a sticker or to have a point- of-sale display indicating that they are participating in the Fair Food Program.

In 2015, the CIW expanded the Fair Food Program to tomato producers in other nearby states (Georgia, North Carolina, South Carolina, Virginia, Maryland, New Jersey) and other crops (peppers and strawberries).191

1. Building an effective private regulatory system

The Fair Food Program represents a form of private regulation, shaping the behavior of farm employers through standards developed by workers, monitored by an independent organization, and enforced through market sanctions. Enforcement takes place through a potent mix of proactive and reactive enforcement mechanisms. Any detected violation must be immedi- ately remedied, and failure to do so results in exclusion from the program for a stipulated period of time. Such exclusion can have serious financial impact on the grower, which must then find a non-participating buyer to take the perishable stock off its hands. The Fair Food Program applies many of the lessons that civil society groups have learned from successfully regulating transnational supply chains.192 Another factor behind the Fair Food Program’s success is that it makes powerful entities at the top of the food supply chain responsible for working conditions of those employed throughout.

The Fair Food Program works as a successful private regulatory system for four main reasons.193 First, the standards contained in the Code of Con- duct have been determined in close coordination with workers, and as a re- sult, reflect matters that are of deep interest to them.194 For example, workers have long complained about the pervasive practice of being required to fill their collection buckets above the brim—a practice that effectively denied

189 Donate, FAIR FOOD STANDARDS COUNCIL, http://www.fairfoodstandards.org/donate [https://perma.cc/66M9-E9MN] (last visited Sept. 24, 2017).

190 Interview with Marley Moynahan, Communication Officer, Coalition of Immokalee Workers (Dec. 10, 2015) [hereinafter Moynahan, Interview].

191 FAIR FOOD STANDARDS COUNCIL, FAIR FOOD PROGRAM: 2015 ANNUAL REPORT 2 (2015), http://fairfoodstandards.org/15SOTP-Web.pdf [https://perma.cc/PWH2-MXAX] [hereinafter FAIR FOOD STANDARDS COUNCIL, 2015 REPORT] .

192 See supra note 77. R 193 See James J. Brudney, Decent Labour Standards in Corporate Supply Chains: The

Immokalee Workers Model, in TEMPORARY LABOUR MIGRATION IN THE GLOBAL ERA: THE REGULATORY CHALLENGES 361–70 (Joanna Howe & Rosemary Owens eds., 2016).

194 Id. at 364–65.

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workers payment for up to 10% of the tomatoes they harvested.195 The Code of Conduct requires that employers require their workers to fill the buckets to the brim and not above.196 Second, compliance with the Fair Food Pro- gram is subject to regular and thorough audit by an independent and credible third party.197 The auditing process is thorough because it involves examina- tion of complete payroll records, discussions with all levels of management, and interviews with at least 50% of the workers employed at any particular enterprise.198 Third, workers can also directly complain if there has been a violation, and these claims are swiftly investigated and resolved.199 When making these complaints, workers can take comfort in knowing that em- ployer reprisals will be punished and that they will be reinstated if their employment is terminated.200 Fourth, non-compliance is subject to transpar- ent sanctions that hold serious commercial implications for wrongdoers.201

The standards contained in the Code of Conduct are comprehensive. The initial purpose of the Code of Conduct was to require tomato purchasers to pay 1.5 pennies more per pound of tomatoes purchased, which then would be passed on to the workers in a verifiable way.202 The wage premium in most cases resulted in the real wages of farm workers increasing by 20-35%, with workers subsequently receiving an hourly wage of $8.75.203 This pre- mium has resulted in millions of dollars of additional wage payments for workers.204 In the ensuing years, the Code of Conduct has evolved into a sophisticated document containing several substantive rights and entitle- ments. The main provisions of the Code of Conduct require growers to abide by all applicable federal, state and local laws; directly hire workers rather than through labor contractors; provide employees with protective gear and training for their use; create mobile shade structures; eliminate workplace violence, forced labor, child labor, and sexual harassment; keep comprehen- sive records; and provide paid training to workers about the terms of the Code of Conduct and their rights.205

The Standards Council conducts external audits of growers to ensure compliance with the terms of the Code of Conduct. When growers sign the

195 On the Elimination of the Required Overfilling of Buckets through the CIW’s Fair Food Code of Conduct, COALITION OF IMMOKALEE WORKERS (Apr. 30, 2011), http://www.ciw-on line.org/blog/2011/04/bucket_overfilling [https://perma.cc/P4CH-WS5Y].

196 Id. 197 Brudney, supra note 193, at 365–69. 198 Id. 199 Id. at 365. 200 Id. 201 Id. at 369. 202 Moynahan, Interview, supra note 190 (growers are entitled to retain the other 0.5 cents R

for administrative costs in administering the Fair Food Program). 203 Greenhouse, supra note 178. R 204 FAIR FOOD STANDARDS COUNCIL, FAIR FOOD PROGRAM: 2014 ANNUAL REPORT 2

(2014) http://fairfoodstandards.org/cms/wp-content/uploads/2015/08/14SOTP-Web.pdf [https://perma.cc/S7VY-7MS7 [hereinafter FAIR FOOD STANDARDS COUNCIL, 2014 ANNUAL REPORT].

205 Fair Food Code of Conduct, supra note 187. R

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Code of Conduct, they agree to participate in the auditing process, which means allowing all payroll records and other company documents to be in- spected and requiring all crew leaders, supervisors and members of manage- ment to answer questions while being interviewed.206 The auditing process is extensive. It can last anywhere from two days to two weeks.207 The auditors inspect payroll and other records to ensure that the wage premium is being passed on to workers and that workers are being provided with the minimum wage. The Standards Council makes it a practice to interview at least 50% of the workforce irrespective of size of the grower.208 In addition, the auditors interview each level of management. In the 2014-2015 growing year for ex- ample, 27 management audits, 32 payroll audits, and 36 operation audits were carried out in Florida (3,617 workers and 102 crew leaders were inter- viewed).209 Every grower is audited each season. The results from four sea- sons of audits show that the situation is gradually improving on the ground with fewer violations being found. Fine has described the monitoring pro- cess in glowing terms, stating that, “[t]his is the best workplace-monitoring program I’ve seen in the U.S.” 210

Once an audit detects a violation, the most common remedial action taken is the development of a corrective action plan. The grower is also suspended from the program until the corrective measures are implemented. To date, 13 growers have been placed on probation and 7 growers have been suspended from the Fair Food Program for varying lengths of time for failing to implement a corrective action plan.211 The purposes of the corrective ac- tion plans are to drive systemic change, set out a clear path for doing so, and achieve buy-in from key stakeholders.

The Fair Food Program recognizes that auditing will not pick up all violations. In these cases, a credible complaint-resolution process supports workers exercising “voice.” The process is underpinned by three elements: education of workers, a 24-hour bilingual complaints line operated by the Standards Council (workers can also complain directly to the CIW or grow- ers, although this is less common), and a process for investigating and resolving complaints. Complaints are investigated, and where a violation is found, resolved by discussion with the relevant crew leaders and growers to ensure that appropriate redress is made. According to the Standards Council, participating growers have “adopted a cooperative attitude towards jointly resolving worker complaints.”212 In the 2014-2015 growing year, the Stan- dards Council dealt with 261 complaints in Florida (91 complaints were

206 Id. at Part IV. 207 FAIR FOOD STANDARDS COUNCIL, 2014 ANNUAL REPORT, supra note 204, at 2, 17. 208 Moynahan, Interview, supra note 190. R 209 FAIR FOOD STANDARDS COUNCIL, 2015 REPORT, supra note 191, at 44. R 210 Greenhouse, supra note 178. R 211 FAIR FOOD STANDARDS COUNCIL, 2015 REPORT, supra note 191, at 45. R 212 Id. at 14.

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made to the CIW and a further 30 complaints made directly to growers).213 This represented a significant increase from the 2011-2012 growing year, which saw 84 complaints in total.214 The increase in complaints is likely due to growing worker awareness about their rights under the Code of Conduct and to mounting confidence among workers that they will not face negative consequences for complaining.215

Credible sanctions are the final key to the success of the Fair Food Program. Employers that violate the terms of the Code of Conduct realize that the Standards Council or CIW will learn of this and that they will face consequences.216 There are three categories of violations prescribed. “Article I violations,” the so-called “zero tolerance provisions,” are the most serious and include the use of forced labor and systemic use of child labor.217 “Arti- cle II violations” include discrimination, sexual harassment, systematic wage violations, and any reprisal against a worker exercising their rights under the Code of Conduct. Article III violations are the least serious and include non-systematic wage violations. Article I violations result in an im- mediate suspension. Suspension periods from the Fair Food Program in- crease in severity with each suspension—the first suspension is for 90 days, the second is for 180 days, and the third is for one full calendar year. Article II and III violations require the grower to develop and implement a correc- tive action plan, and failure to abide by the terms of this plan can result in a suspension for a period of time until compliance is achieved. The Code of Conduct also stipulates disciplinary measures for crew leaders and other su- pervisory staff found to be in breach of the terms of the Code of Conduct, which range from the termination of employment to a lifetime ban on work- ing for a participating grower. The Standards Council or the CIW may also refer certain illegal conduct to law enforcement authorities—for example in cases of assault, sexual harassment and slavery.218

If a grower is suspended or excluded from the Fair Food Program alto- gether, it loses the ability to sell to those buyers that are signatories of the program, because the buyers have agreed to purchase their tomatoes only from certified suppliers. James Brudney argues that the potential loss of this business constitutes an effective incentive even though tomato sales through the Fair Food Program only constitute around 20% of growers’ total sales.219 Due to the perishable nature of tomatoes, it is extremely difficult for a sus- pended producer to organize an alternative buyer on short notice.

213 Id. at 46. 214 Id. 215 See Brudney, supra note 193, at 364–65. R 216 A working group consisting of growers and CIW members advises the Standards

Council about how best to practically implement the various provisions of the CIW. 217 Fair Food Code of Conduct, supra note 187. R 218 Moynahan, Interview, supra note 190. R 219 Brudney, supra note 193, at 369 & n.86. R

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The real strength of the Fair Food Program is that it takes into account the fact that working conditions in the agricultural sector are directly im- pacted by broader transformations in the food industry.220 Farm producers are subject to enormous pressure on account of two significant trends in the food industry, and therefore, might not be in the best position to provide better wages and conditions. First, the consolidation of a global food market due to increased trade liberalization has increased the competition to which farmers are subject.221 Second, increasing concentration amongst compa- nies—particularly among those responsible for producing the inputs that farmers use (such as seeds and pesticides), and buying the products that farmers produce—has shifted the balance of power away from farmers.222

The mechanisms by which sellers and buyers exercise market power are multifaceted and complex. Although governments have generally been alive to the issue of monopolistic and oligopolistic sellers abusing market power to command higher prices, the pernicious effects of concentrated buyer power have been less well understood.223 Harvey James and colleagues argue that farmers’ weakness vis-à-vis buyers can be explained through factors such as high switching costs and lack of alternative buyers.224 This means that farmers are paying higher costs for inputs and receiving lower prices for their produce due to structural changes in the food system. They often re- spond by seeking to gain greater surplus value from their workers’ labor.225

The CIW understands these broader political economy dynamics, and as a result, the Fair Food Program targets those at the top of the food supply chain to guarantee decent working conditions of those employed by its sup- pliers. When the CIW first targeted Yum! Foods in 2000 (which owns Taco Bell, Pizza Hut and KFC fast food chains), the company predictably claimed that it could not be held responsible for labor conditions in its supply chain. The CIW, however, did not falter and waged a campaign to pressure those entities to wield their power to improve working conditions on farms. It is these entities that have the real power to change the situation for farm workers.

These four aspects of the Fair Food Program—standards determined by workers, enforcement predicated on thorough monitoring, a robust worker- complaint mechanism, and imposing real responsibility on the lead firms through meaningful sanctions—represent a particularly effective form of private regulation. Some have taken to using the moniker “worker-driven social responsibility” to distinguish this form from previous corporate-led

220 See supra discussion Part II. 221 See supra note 79. R 222 See supra note 81. R 223 Peter C. Carstensen, Buyer Power, Competition Policy, and Antitrust: The Competitive

Effects of Discrimination Among Suppliers, 52 ANTITRUST BULL. 271, 272 (2008). 224 Harvey S. James, Jr., Mary Hendrickson & Philip H. Howard, Networks, Power and

Dependency in the Agrifood Industry, in THE ETHICS AND ECONOMICS OF AGRIFOOD COMPETI- TION (Harvey S. James, Jr. ed., 2013), at 99–126.

225 See, e.g., Preibisch, supra note 96, at 406; Preibisch, supra note 81, at 421. R

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incarnations that were characterized by “voluntary commitments, broad standards that often merely mirror[ed] local law, ineffective or non-existent monitoring, and the absence of any commitment to or mechanisms for the enforcement of the meagre standards that. . .exist[ed].”226

III. WHEN CAN LABOR ORGANIZATIONS MAKE A DIFFERENCE?

The purpose of the following discussion is to analyze the work of these organizations along two axes. The first axis of investigation is to compare organizations performing similar types of work in order to draw conclusions about when these legal engagements work best. The second axis of investi- gation is to consider these legal engagements against the political economy of the food system, the regulatory framework, and the demographics of the migrant farm workforce, to arrive at some findings about which legal en- gagements should be preferred. This analysis reveals that labor organizations may be able to extend existing regulatory protections in a way that current actors cannot and design private systems of regulation that transcend the limitations of public ones.

The AWA and JIM engage with the law in similar ways, although they operate under different legal and political conditions. Both organizations build the rights consciousness of workers, seek to improve compliance with existing laws, and achieve legal reform to broaden the suite of rights availa- ble to migrant farm workers. In building the rights consciousness of workers and in improving compliance with laws, these two labor organizations oper- ate in ways that traditional regulatory agencies are unable to do.227 Matthew Amengual and Janice Fine invoke the idea of the “non-substitutable capabil- ities of state and society” in appealing for regulators to “co-enforce” stan- dards with labor organizations.228 This research supports the notion that rather than simply filling existing regulatory gaps, labor organizations are able to operate in ways that expand existing protections for farm workers.

Migrant farm workers lack knowledge about their existing statutory rights and the mechanisms to enforce them, and labor organizations can play a critical role in improving workers’ rights consciousness in ways that are cognizant of their experiences. Rather than waiting until workers have ar- rived in the United States or Canada, the AWA and JIM work across the entire labor migration cycle to increase knowledge of rights. The AWA works with Mexican state institutions to distribute material to temporary mi- grant workers before they reach Canada, and it operates ten support centers in regional locations to conduct further outreach once workers have arrived.

226 WORKER-DRIVEN SOCIAL RESPONSIBILITY NETWORK, WHAT IS WORKER-DRIVEN SO- CIAL RESPONSIBILITY (WSR)? 1 (2017), https://www.nesri.org/programs/worker-driven-social- responsibility-collaborative [https://perma.cc/9JW2-GBVZ] (last visited Aug. 16, 2017).

227 Although traditional labor organizations can perform a similar function, at least in North America, this tends to not be the case.

228 Amengual and Fine, supra note 52, at 129. R

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Similarly, JIM works with its Defender network in the migrant workers’ home countries to distribute information. These Defenders act as trusted in- termediaries, providing information in an appropriate way so that it is accu- rately received.

Migrant farmworkers need extra support to claim their employment rights through administrative or judicial processes, and state regulators cur- rently do not have the resources to provide this assistance. Labor organiza- tions such as the AWA are in a position to offer the kinds of language, logistical and emotional supports that state agencies cannot, so that workers can vindicate their rights. Migrant workers also lead lives in several coun- tries, and once they enter the United States or Canada for work, several overlapping regimes of regulation apply to them. The narrow legislative mandates that regulatory agencies work within prevent them from crossing policy boundaries or operating in other jurisdictions. Labor organizations are not so encumbered—they can cross policy and national boundaries with more agility to act in the interests of migrant workers as the AWA and JIM cases demonstrate.

While many of the measures just described allow workers to claim some measure of justice, it is questionable whether they make an impact on working conditions in the sector more broadly. The strategies adopted by the AWA and JIM require workers to come forward and pursue claims either with enforcement agencies or through the courts. There is significant evi- dence that low-wage workers are unwilling to complain because they fear retaliation.229 This is especially the case for migrant farm workers, who are “unfree” in the sense that they have various restrictions placed on their abil- ity to sell their labor power.230 For these workers, the costs of complaining can be very high. Migrant farm workers entering under temporary worker programs (e.g. H-2A, SAWP and TFWP) are the archetypical unfree workers in the contemporary economy, because they have politico-legal restrictions that tie them to a single employer, and prevent them from working in differ- ent sectors.231 Similarly, undocumented workers, who labor under the fear that migration rules will be invoked at any time to remove them from the country, also exist closer to the “unfreedom” pole.232 This unfreedom pre- vents migrant farm workers from exercizing the few labor rights they have

229 Weil & Pyles, supra note 38, at 63–64. R 230 See, e.g., Clark, supra note 121 at 3–4; Kendra Strauss, Coerced, Forced and Unfree R

Labour: Geographies of Exploitation in Contemporary Labour Markets, 6 GEOGRAPHY COM- PASS 137 (2012); HAHAMOVITCH, NO MAN’S LAND, supra note 85, at 2; ROBERT MILES, CAPI- R TALISM AND UNFREE LABOUR (1987) (noting that the concept of unfreedom, located in Marxist political economy, seeks to explain the migrant farm workers’ vulnerability through their cir- cumscribed ability to circulate in the labour market—e.g. changing employers is extremely difficult, and workers cannot work in another industry).

231 See e.g., Clark, supra note 121, at 10. R 232 Strauss, supra note 230, at 141 (proposing a continuum approach to the issue of labor R

unfreedom because powerful and persistent forms of unfreedom can result among workers who are free to sell their labor due to economic compulsion and disparities in gender, citizen- ship status, race, and ethnicity).

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because employer retaliation can have disastrous consequences. As a result, the claims that the AWA and JIM make possible, as important as they are in achieving justice for individual workers, are simply not enough to change the cost-calculus for farm employers.233

The AWA and JIM also fight vigorously for more legal rights for farm workers. The AWA has prioritized launching constitutional litigation to achieve freedom of association rights for farm workers, while JIM mainly lobbies governments in sending and receiving countries for new laws that would lessen the vulnerability of workers, such as laws to punish the charg- ing of recruitment fees.

The political process is generally receptive to those with power and wealth, and since the migrant farm worker community is lacking in both, it may appear that legal channels might prove to be more receptive. However, the experience of the AWA suggests that the legal path is also fraught with danger. The AWA/UFCW’s decade-long struggle to win collective bargain- ing rights for farm workers only resulted in an irredeemably compromised labor relations statute. Because the AWA/UFCW did not prioritize move- ment building, when the court action failed, it had little to show for its ef- forts. The AWA’s and JIM’s experiences reinforce the fact that a legal strategy must be married with a political one to obtain the greatest benefit. That is, when using litigation to win new rights for migrant farm workers, the law should also be harnessed to build and coalesce movements.

Comparing the work of the CIW and JIM yields another set of insights about the relative merits of different legal engagements because both operate in a similar legal and political context, but take diametrically different ap- proaches to the law. The difficulty that the CIW had gaining the attention of government authorities to address farm workers’ conditions led to its leader- ship losing faith in public regulatory systems. As a result, the CIW devised its own system of private rights backed up by a sophisticated monitoring and enforcement regime—the Fair Food Program. In contrast, JIM tries to up- hold the few statutory rights that migrant farm workers have.

The Fair Food Program puts into practice several of the lessons that public regulators have learned about enforcing employment standards in low-wage industries, as well as lessons activists have learned coming out of several decades of experience with designing private regulatory systems to regulate global supply chains.234 The Fair Food Program contains robust stan- dards, empowered workers, thorough auditing by an independent third party, and all of this is backed up with credible sanctions. But the CIW’s system of private regulation is not merely a surrogate for a public system; in many

233 See, e.g., Kevin Purse & Jillian Dorrian, Deterrence and Enforcement of Occupational Health and Safety Law, 27 INT.’L J COMP. LAB. L. & INDUS. REL. 21, 35–36 (2011); Dorothy Thornton et al., General Deterrence and Corporate Environmental Behavior, 27 L. & POL’Y 262, 279–81 (2005); Frank Pearce & Steve Tombs, Ideology, Hegemony, and Empiricism: Compliance Theories of Regulation, 30 BRIT. J CRIMINOLOGY 423, 435–37 (1990).

234 See generally, LOCKE, supra note 77. R

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respects, it is better. Given that most workers in the Florida tomato industry are undocumented, it is less likely that they would complain to a public authority even assuming the existence of a committed and invigorated labor inspectorate. By virtue of the Fair Food Program being a worker-driven pri- vate system, the workers’ migration status does not become a salient issue when lodging a complaint. The fact that the number of worker complaints has been steadily rising during the Fair Food Program’s lifetime demon- strates that private regulatory systems can be engineered to empower work- ers to counterbalance their unfreedom.

Another real strength of the CIW’s Fair Food Program is that it ad- dresses several of the major features in the political economy of contempo- rary food production. Enforcing current existing law on the books against farm employers does not adequately engage with powerful transformations in the food industry that have created a competitive global market in which farmers struggle to survive and thrive. As a result of these changes, farmers look to offset their dwindling profit margins by demanding more flexibility and value from their workers, thereby contributing to worsening working conditions. Further, concentration in the food industry means that a greater share of power and value is being retained by large corporations that provide farm inputs and purchase the fruits and vegetables that farmers produce; in practical effect, these entities control working conditions in the agricultural sector. Cognizant of this political economy, the Fair Food Program attempts to address working conditions in agriculture by making those entities at the top of the food supply chain responsible for workers’ rights on farms.

The CIW’s strategy of targeting businesses at the apex of the food chain would not have been possible if it were a traditional union. Labor organiza- tions have an advantage in the agricultural sector when compared with more traditional unions representing workers in other industries because they are not subject to the same legal restrictions that apply to unions. For example, unions are prohibited from carrying out secondary boycotts,235 but by virtue of the CIW’s non-union status, no such prohibition applies to it.236 This al- lows the CIW to focus its energy on those who wield the actual power to affect working conditions in the agricultural sector without falling afoul of

235 See Michael C. Duff, ALT-Labor, Secondary Boycotts, and Toward a Labor Organiza- tion Bargain, 63 CATH. U. L. REV. 837, 843–45 (2014) (defining a secondary boycott or action as when a labor union seeks help from other workers at companies doing business with their employer).

236 See id. at 848–49 (arguing that if a statutorily-recognized traditional labor union were to call for a boycott of entities conducting business with a farm employer in the same manner as the CIW, this would arguably constitute a secondary boycott prohibited under § 8(b)(4)(B) of the NLRA); see also Eli Naduris-Weissman, The Worker Center Movement and Traditional Labor Law: A Contextual Analysis, 30 BERKELEY J. EMP. & LAB. L. 232, 333–35 (2009) (discussing the applicability of labor laws to a worker organization that is not a statutorily- recognized union); Alan Hyde, New Institutions for Worker Representation in the United States: Theoretical Issues, 50 N.Y.L. SCH. L. REV. 385, 403–410 (2006) (discussing how non- union labor entities might be regulated by the union-centered framework of national employ- ment law).

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2018] Justice on Our Fields 209

these rules. However, as the power of alt-labor organizations grow, so do calls by their conservative opponents to regulate them to minimize their radi- cal potential. There is currently a strong push to have worker centers de- clared unions, and regulated by the same restrictions facing trade unions.237

While the CIW’s unique model for addressing farm workers’ working conditions has been successful, it is unclear whether it can be replicated more widely. The fact that a significant component of the tomatoes grown in Florida are consumed by a few fast food companies with widespread brand recognition means that they are ripe targets for boycotts. In addition, Florida is one of the biggest suppliers of tomatoes for the American market, particu- larly during the winter months. Although it may be more difficult to design a Fair Food Program for farm produce with more diffuse consumption pat- terns, this obstacle is not insurmountable. First, a significant proportion of farm produce is purchased and sold by supermarkets. There has been major consolidation among food retailers—six supermarket brands dominate the Canadian market238 and the United States market is similarly concentrated (for example, Walmart accounts for between one quarter to one third of retail grocery sales in the United States).239 These supermarket brands may be just as susceptible to consumer boycotts, as evidenced by the fact that the CIW has already pressured a number of supermarkets to sign on to the Fair Food Program, most notably Walmart.240 Further, the Fair Food Program demon- strates that a participating buyer need only consume a proportion of the total before it starts to make financial sense for a grower to agree to the buyer’s more stringent standards. However, the balance of forces between farm em- ployers, purchasers and consumers in particular markets will have to be carefully analyzed before other labor organizations decide to follow the path of the CIW. What is clear is that the CIW’s model of targeting entities at the top of the food supply chain offers a more durable solution to the general problem of dismal working conditions than current models imposing liabil- ity solely on farm employers.

The foregoing discussion makes clear the ongoing need for a meso- level analysis of labor organizations, focusing on their legal engagements. Comparing the legal strategies of various labor organizations allows us to understand the conditions under which they can succeed.241 As the compari-

237 One organization at the forefront of this conservative backlash against the perceived threats of alt-labor was Worker Center Watch, a “shadowy” website with ties to the CEO of Walmart. See Lee Fang, Former Wal-Mart Exec Leads Shadowy Smear Campaign Against Black Friday, THE NATION (Nov. 26, 2013), https://www.thenation.com/article/former- walmart-exec-leads-shadowy-smear-campaign-against-black-friday-activists [https://perma.cc/ LRG5-DQ73].

238 In Canada, the top six retailers control 80% of retail food. Preibisch, supra note 81, at R 427.

239 James et al., supra note 224. R 240 For example, Walmart, Fresh Market, Trader Joe’s, and Whole Food Markets are all

members of the Fair Food Program. See Greenhouse, supra note 178. R 241 S. KARTHICK RAMAKRISHNAN AND IRENE BLOEMRAAD, CIVIL HOPES AND POLITICAL

REALITIES, 31–33 (2008).

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son between the AWA and JIM indicates, analyzing similar legal engage- ments of different labor organizations reveal important insights even when these organizations operate in different legal and political contexts. A com- parative case study method centered on their strategies also tells us about the respective utility of specific legal engagements given similar political eco- nomic considerations.

CONCLUSION

The response of labor organizations to working conditions in the agri- cultural sector presents a useful way to approach the broader question of labor movement revitalization. Migrant farm workers, and the organizations that look after their interests, represent some of the most creative and ener- getic elements of the broader labor movement. But what can the rest of the labor movement learn from these actors?

First, labor organizations must understand and respond to the political economy in determining a course of action. This includes engaging seriously with the question of production arrangements. The CIW, for example, has devised a private regulatory system that is based on a sound analysis of how tomatoes are grown and consumed in Florida. It has compelled those entities with the most power to affect working conditions to take responsibility. En- gaging with the political economy also means identifying and addressing the conditions that give rise to the situation in which workers find themselves. In the case of migrant farm workers, claiming individual employment rights can be difficult because employment and immigration regimes interact to create forms of unfreedom. The AWA and JIM take a two-pronged approach to this problem. While facilitating more individual claims, the AWA and JIM are also involved in political advocacy to change the deeper structures that impede claim-making, such as immigration rules.

Second, labor organizations must use a range of strategies, drawing on law, but also transcending it. Labor organizations that represent farm work- ers often operate at the interstices of the law because these workers lack effective labor regulation. As a result, while labor organizations maneuver to make existing laws more effective, they also treat law as a cultural and polit- ical resource. In certain circumstances, they have even developed their own regulatory systems that mimic state law regimes. As conventional labor laws lose their ability to influence working conditions for a growing segment of the workforce, the legal engagements of labor organizations may point the way for a labor movement struggling to find its way in a hostile legal environment.

Third, to achieve sustainable change, labor organizations must ulti- mately build popular movements consisting of workers and allies. Popular mobilizations are necessary to pressure governments to properly enforce their existing rules or to create new laws. Popular movements are also a necessary feature of private regulatory systems because they are required to

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implement sanctions that encourage business compliance. Building powerful movements of workers will necessitate patient and thoughtful work and re- quire asking questions such as: where does power reside? Who should be targeted? Who should be sought out as allies? What tactics (e.g. strikes, boy- cotts, marches, rallies etc.) should be employed? Labor organizations, such as the CIW, show the potential of organizations embedded in bigger social movements to achieve transformative and durable change.

As many commentators on the alt-labor movement have recognized, the Achilles heel of labor organizations remains their funding situation.242 Labor organizations are funded for the most part through private foundation funds, leaving them susceptible to the influence of private donors as well as vulner- able to shifting priorities. In the case of the AWA, it is entirely funded by the UFCW. Unlike trade unions, which are funded through membership dues, labor organizations lack sustainable funding models. As one prominent union organizer, Karen Nussbaum, astutely points out, “worker organiza- tions that aren’t self-sustaining can’t be democratic.”243 Obtaining ongoing and sustainable sources of funding will be critical to their ultimate success.

Terrible working conditions have been a persistent feature of non-sub- sistence agriculture in North America, but recent economic restructuring has only made these conditions more pronounced. The agricultural sector may be a harbinger of working conditions under advanced capitalism caused by shifts in production and business organization, regulatory degradation, and a large migrant workforce. We should come to see labor organizations actively trying to achieve justice on our fields as pointing the way for a rejuvenated labor movement.

242 See, e.g., Jonathan Timms, A Labor Movement That’s More About Women, THE ATLAN- TIC (Aug. 25, 2016), http://www.theatlantic.com/business/archive/2016/08/the-womens-labor- movement/497294 [http://perma.cc/L4LV-9HEQ]; Josh Eidelson, Who Should Fund Alt-La- bor?, THE NATION (Jul. 17, 2013), https://www.thenation.com/article/who-should-fund-alt-la bor [http://perma.cc/3CPR-AKE6].

243 See Eidelson, supra note 242. R

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Q3/Fair-Food-Program-2017-Annual-Report.pdf

2017 ANNUAL REPORT

2 3

"Implementation is simply getting things done, making an idea real.

Implementation is where the advocates and journalists can sometimes turn aside, moving on to the next story or cause.

The details needed for the endgame is where most ideas, policies and programs fail. Getting things done is central to this story because to achieve the systemic change necessary to eliminate the causes of worker abuse, the program had to work; its success measured by metrics of

real and enduring change in the fields."

- Susan Marquis Dean of the Pardee RAND Graduate School, on the Fair Food Program1

Photo: Shane Donglasan

Board of Directors R e v. N o e l l e D a m i c o - National Economic and Social Rights Initiative D r. Pa t r i c k M a s o n - Department of Economics, Florida State University C h e r y l Q u e e n - Vice President of Corporate Communications, Compass Group S a n t i a g o Pe r e z - Coalition of Immokalee Workers N e l y R o d r í g u e z - Coalition of Immokalee Workers S t e v e n H i t o v - Coalition of Immokalee Workers

Executive Director J u d g e L a u r a S a f e r E s p i n o z a is a recently retired New York State Supreme Court Justice who served in New York and Bronx Counties for twenty years. She was Deputy Supervising Judge for five years. Justice Safer Espinoza helped to design, and became the first presiding judge of, the Bronx Treatment Court, an innovative alternative to incarceration for non-violent offenders.

Justice Safer Espinoza has an extensive history of work with government, human rights and legal organizations in the US and Latin America. She has taught and lectured extensively on judicial transparency in Latin America, working with numerous organizations – including the US Department of State, the Conference of Western Attorney Generals, law schools, universities, governments and non-governmental organizations – to support law reform efforts by training ad- vocates in more transparent legal systems. From 2009 through 2011, she designed and directed trainings for thousands of judges and attorneys in Mexico. Judge Safer Espinoza has also helped to launch and advise treatment courts in Chile and Brazil. She authored the keystone chapter of Chile’s first book on alternative courts in 2006.

Justice Safer Espinoza received her BA from Barnard College and her JD cum laude from New York Law School. She is a recipient of the City University of New York’s Women in the Law Award and a 2015 Purpose Prize from Encore.org.

Participating Growers

Ag-Mart/Santa Sweets Classie Growers/Falkner Farms Del Monte Fresh Production DiMare Homestead DiMare Ruskin

HarDee/Diamond D Triple D

Farmhouse Tomatoes Gargiulo Harllee Packing

Palmetto Vegetable Company South Florida Tomato Growers

Kern Carpenter Farms Lipman Family Farms Pacific Tomato Growers/Sunripe Taylor and Fulton Packing

Utopia Farms Tomatoes of Ruskin

Artesian Farms Diehl and Lee Farms Frank Diehl Farms TOR Farms

West Coast Tomato/McClure Farms

About FFSC Program Partners Mission The mission of the Fair Food Standards Council (FFSC) is to monitor the development of a sustainable agricultural industry that advances the human rights of farmworkers, the long-term interests of growers, and the ethical supply chain concerns of retail food companies through implementation of the Fair Food Program. For more information, visit f a i r f o o d s t a n d a r d s . o r g .

Tomatoes - Other States Ag-Mart Produce/Santa Sweets (NC, NJ) Gargiulo (GA) Lipman Family Farms (SC, VA, MD) Pacific Tomato Growers/Sunripe (GA, VA)

Tomatoes - Florida

Strawberries Pacific Tomato Growers/Sunripe

Green Bell Peppers Lipman Family Farms

Photo: Forest Woodward

Participating Buyers

Introduction History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A New Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

How Does the Program Work? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 What is the Code of Conduct? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 How are the Standards Guaranteed? . . . . . . . . . . . . . . . . . . . . . . . . . . 16 What has the Program Accomplished? . . . . . . . . . . . . . . . . . . . . . . . . . 18

In Focus: Women in the Fields . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 In Contrast: Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 In Contrast: The U.S. Outside the Fair Food Program . . . . . . . . . . . . . . . . . . 24 Worker-Driven Social Responsibility: The Road Forward . . . . . . . . . . . . . . . . 26

Results Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Code Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Charting Progress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Foundations Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Complaint Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Auditing & Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Market-Based Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Provisions Zero Tolerance Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Sexual Harassment and Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . 50 Direct Hiring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Progressive Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Guestworkers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Fair Food Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Wages & Hours . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Bucket-Filling Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Health and Safety Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Shade in the Fields . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Appendix A: Selected Media Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Appendix B: By The Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Appendix C: Fair Food Code of Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84

T able of Contents

Photo: Forest Woodward

8 9

Histor y Whether carried out by slaves, sharecroppers, or an immigrant la- bor force, farm labor has always been one of the lowest paid and least protected jobs in the United States.

Today, in both the US and many other countries, much of the food we eat is still grown and harvested by women and men who do backbreaking work for poverty wages.

When you walk down the produce aisle, what are you buying?

Was the human being who picked the produce treated fairly?

How can you be sure?

“Poverty among farmworkers is more than double that of all wage and salary employees.”

-US Department of Agriculture2

“...low wages, sub-poverty annual earnings, [and] significant periods of un- and underemployment.”

-US Department of Labor3

$15,000 - $17,500 Average Annual Farmworker Earnings4

Bean harvesting in Florida

1937

2017 Strawberry harvesting in Florida

Today

Photo: Arthur Rothstein, Farm Security Administration Archives

30% Farmworker families living below the federal poverty line5

Photo: Adobe Stock

10 11

It isn't just that farmworkers are poor.

On most farms, they must also go into the fields each day knowing that they will be subject to abuse and dangerous conditions.

Farmworkers frequently experience harassment and discrimination, sex- ual assault, physical violence, verbal abuse, serious injuries, and expo- sure to dangerous heat and storms.

Due to wage theft and minimum wage violations, many aren't even paid what they are legally owed for their labor.

It may be hard to believe, but farmworkers also face situations of mod- ern-day slavery – according to the definition of forced labor and high standard of proof required under federal law. In these cases, workers are held against their will - through the use or threat of violence, or oth- er forms of intimidation - and forced to work for little or no money.6

When you buy fruits and vegetables, what are you bringing into your home?

Sexual Harassment

Sexual Assault

Discrimination

Physical Violence

Verbal Abuse

Wage Theft

Slavery

Lightning

Pesticide Exposure

Heat Stroke

Death

100 Number of US farmworkers who suffer a serious lost-work-time injury every day7

The fatality rate for farmworkers is

7 times higher than the rate for all workers

in private industry8

80% Of farmworker women

are sexually harrassed or assaulted9

Pioneering a worker-centered approach to slavery investigations and prosecutions, CIW helped to free over 1500 workers from slavery operations in the Southeastern US.

12 13

A New Day

Among the “most important social-impact success stories of the past century.” -Harvard Business Review (2017)10

“One of the great human rights success stories of our day.” –Washington Post Op/Ed (2012)11

A “visionary strategy … with potential to transform workplace environments across the global supply chain.”

-MacArthur Fellowship (2017)12

“A sustainable blueprint for... freedom from forced labor, sexual harassment, and violence in the workplace…”

- Roosevelt Institute (2013)13

“Unique in the country” for preventing sexual violence. -PBS Frontline Producer (2014)14

“One of the most successful and innovative programs” in the world today to uncover and prevent modern-day slavery.

- President's Advisory Council on Faith-Based and Neighborhood Partnerships (2013)15

“A radically different accountability mechanism.” -EEOC Select Task for on the Study of Harassment in the Workplace (2016)16

“This is the best workplace-monitoring program” in the US. -New York Times (2014)17

“When I first visited Immokalee, I heard appalling stories of abuse and modern slavery.

But now the tomato fields in Immokalee are probably the best working environment in American agriculture."

-Susan L. Marquis, Dean of the Pardee RAND Graduate School18

Since 2011, this reality has been dramatically changed for many farmworkers as a result of the groundbreaking Fair Food Program (FFP), which brings together farmworkers, consumers, food retailers, and growers to achieve humane labor standards and better wages in agriculture.

The FFP was created by the Coalition of Immokalee Workers (CIW), a human rights organization found- ed by farmworkers in southwest Florida. In the ear- ly 1990s, the CIW began organizing to address the abusive conditions and stagnant wages suffered by farmworkers for generations. During those efforts, CIW members uncovered multiple, horrific cases of modern-day slavery: entire crews of workers held against their will and forced to work for little or no pay through the threat, or use, of violence. Pioneering a worker-centered approach to the investigation and prosecution of these cases, CIW helped to free over 1500 workers from slavery operations in the Southeastern US, and put more than a dozen farm bosses in prison for sentences of up to 30 years. In 2010, the CIW became the first domestic organization to receive the US State Department’s anti-slavery “Hero” Award, and was awarded a Presidential Medal for Extraordinary Efforts to Combat Human Trafficking at a White House ceremony in 2015.

Today, the CIW’s expertise in this area is regularly sought by law enforcement, government agencies, and NGO’s - including the FBI, the U.S. military, state and local police forces, the United Nations, and the European Union.

After more than a decade of successful prosecu- tions, however, the CIW came to a pivotal realiza- tion: stopping individual slavery operations does not constitute victory in the fight against slavery. No matter how many slavery rings were uncov- ered and shut down, the vast imbalance of power between farmworkers and their employers that allowed forced labor to take root in the first place remained, and new slavery operations inevitably took the place of those that had been uprooted.

Realizing that the key to bringing about a truly “new day” in agriculture was redressing that under- lying imbalance of power, the CIW sought a new source of leverage to level the playing field and enforce farmworkers’ fundamental human rights. They located that leverage not in the fields, but rather at the top of the supply chain, in the volume purchasing power of the retail food giants. In fact, the high degree of consolidation in the food indus- try already meant that multi-billion dollar brands could leverage their market power to demand lower prices from growers, thereby creating down- ward pressure on farmworkers’ wages and working conditions.

Seeking to reverse this trend and harness the re- tailers’ purchasing power to improve, rather than impoverish, farmworkers’ lives, the CIW launched its Campaign for Fair Food in 2001. Farmworkers and a national network of consumers asked com- panies at the top of the agricultural supply chain to use their market power as a force for good by paying a premium – a penny more a pound - for

their produce, to be used as a wage supplement for farmworkers, and by agreeing to purchase only from growers who implemented a human rights- based Code of Conduct on their farms. Seventeen years later, 14 major buyers - including McDonald’s, Subway, Whole Foods, and Walmart - have joined the Fair Food Program. As a result, growers repre- senting over 90 percent of Florida tomato produc- tion and major tomato operations in six other states on the East Coast, as well as strawberry and pepper operations in Florida, have agreed to implement the Fair Food Code of Conduct on their farms.

The Program's swift and dramatic achievements have been widely recognized. An estimated 35,000 workers now enjoy unprecedented human rights protections and their working conditions have been transformed. The very fields that federal prosecu- tors once called "ground zero for modern-day slav- ery" are now known as the best work environment in US agriculture.

14 15

How does the Program Work? Buyers agree to purchase covered produce only from farms that meet the standards required by the Fair Food Code of Conduct, as verified by the Fair Food Standards Council (FFSC). They also pay their suppliers a small “Fair Food Premium,” known popularly as a “penny-per- pound,” but that in fact varies in amount according to the type of produce purchased. This money is then passed on to farmworkers in their regular paychecks to augment low wages.

Growers agree to implement the Fair Food Code of Conduct on their farms, to cooperate with monitoring by the FFSC, and to pass along the Fair Food Premium. Farms that fail to come into compliance with Code standards are suspended from the Program until they do, and cannot sell their product to Participating Buyers during that time.

To establish policies and procedures that ensure successful implementation of the Code’s provisions, the FFP created a Working Group, consisting of CIW and representative Partici- pating Growers. The Working Group meets regularly to review Program implementation, dis- cuss practical difficulties and, if necessary, recommend appropriate policy changes to ensure that the Code’s intent is realized on FFP farms.

What is the Code of Conduct? The Fair Food Code of Conduct was drafted by farmworkers who understood the harsh conditions in the fields, and who asked that they:

Not be the victims of forced labor, child labor, or violence.

Earn at least minimum wage.

Always be paid for the work they do.

Go to work without being sexually harassed or verbally abused.

Be able to report mistreatment or unsafe working conditions.

Report those abuses without the fear of losing their job - or worse.

Have shade, clean drinking water, and bathrooms in the fields.

Be allowed to use the bathroom and drink water while working.

Be able to rest to prevent exhaustion and heat stroke.

Be permitted to leave the fields when there is lightning, pesticide spraying, or other dangerous conditions.

Be transported to work in safe vehicles.

Photo: Forest Woodward

It's not so much to ask.

Photo: Shane Donglasan

16 17

How are these standards guaranteed? Farmworkers are excluded from many legal protections afforded to workers in other sectors. And under-resourced agencies could only attempt sporadic enforcement of those limited rights. Traditional, corporate-controlled, audit-based systems for monitoring workplace con- ditions have also been exposed as inadequate, intended to protect brand image rather than low-wage workers' rights.19

In fact, just weeks before the last slavery case was surfaced in Immokalee in 2008 (prior to the FFP), a grower-sponsored auditing organization certified labor conditions on the farms where the victims of forced labor had been working. In that case, workers were chained, beaten, and kept in a box truck at night, while being forced to work for no pay during the day. In a similarly tragic circumstance, the garment factories that collapsed at Rana Plaza in Bangladesh in 2013 - killing over 1100 workers - were also previously certified by a corpo- rate-sponsored auditing organization. The workers who died needlessly simply had no safe channels to make their voices heard or to denounce life-threatening conditions and abuse.

In contrast, the Fair Food Program provides unprecedented transparency into the agricultur- al workplace, and rests upon a foundation of elements necessary for guaranteeing low-wage worker protections.

All workers employed at Fair Food Program farms learn about their unique protections through multiple educational mechanisms, with interactive sessions led by CIW’s Worker Education Committee, whose members are farmworkers themselves, principal among them. These discussions happen on company property, with the support of company management. Workers are compensated for their participation at an hourly rate. Beyond this, at the point of hire, before setting foot in the fields, all workers receive CIW’s Know Your Rights and Re- sponsibilities (KYRR) handbook and watch a video produced by the Coalition, consisting of scenarios that demonstrate workers’ rights and responsibilities under the Program.

For the 35,000 workers employed at Fair Food Program farms each year, this training pro- vides the knowledge needed to help identify abuses and dangers in the workplace, and to make protected, confidential complaints. As a result, thousands of workers have become the frontline monitors of their own rights and working conditions.

1. Worker-to-Worker Education

When workers do encounter problems or abuse in the workplace, they have access to a safe and effective complaint process.

Through the Program's toll-free complaint line, workers have 24/7 access to bilingual FFSC investigators who assist them in investigating and resolving any Code violations identified at FFP farms. Through the FFP’s collaborative, problem-solving approach to complaint resolu- tion, a significant number of issues that do not rise to the level of Code violations are none- theless also addressed by growers who now have a different view of their workforce and understand the benefits of these kinds of solutions.

Due to effective enforcement of the Code's prohibition of retaliation against workers who voice complaints, workers confidently express their concerns.

2. Complaint Resolution

3. Audits & Transparency

4. Market-Based Enforcement

Workers may not always be aware of every possible problem, or willing to trust the com- plaint hotline. For this reason, in-depth audits are a necessary complement to the complaint process.

With full access to farm operations and payroll records, as well as extensive presence in the fields and housing camps through announced and unannounced audits, FFSC investigators have an unprecedented degree of insight into growers’ operations. Audits include in-depth interviews with management representatives, farm supervisors, and at least 50% of work- ers present at all farm locations. The thoroughness and rigor of these audits give FFSC the knowledge needed to ensure that growers’ practices are in full compliance with the Code of Conduct.

For labor standards to be respected, they must be effectively enforced.

In the Fair Food Program, protection of farmworkers' fundamental rights is backed by market consequences for farms that fail to come into compliance with the Code of Conduct. When suspended from the FFP, growers can no longer sell their product to the FFP's Participating Buyers until their mandated suspension period has expired and their operations are compli- ant with the Code.

In turn, Participating Buyers only source covered produce from Participating Growers in good standing, providing a market incentive for growers who are holding up their end of the bargain.

18 19

What has the Program accomplished? ui

20,000 Worker Interviews

660 Worker-to-Worker

Education Sessions with

51,958 Workers in Attendance

$26,000,000 Fair Food Premium

paid by Participating Buyers

10% Wage increase from

FFP Bucket-Filling Standard

$251,178 Recovered Wages

6839 Audit Findings Addressed

2000 FFP Hotline Complaints*

220,000 KYRR Booklets

Distributed

A New Day. On FFP farms, workers are:

Working free of forced labor, child labor, sexual assault, and violence.

Making complaints without the fear of losing their job - or worse.

Harvesting according to the new visual bucket-filling standard

Receiving Fair Food Program Premium in their paychecks

Working in an environment where sexual harassment, discrimination, and

verbal abuse are not tolerated

Participating in Worker Health and Safety Committees

Not working in dangerous conditions, including pesticides and lightning

Accessing shade, clean drinking water, and bathrooms as needed.

Living in safe and secure housing where charges do not reduce wages

below minimum wage

*As of April 2018. All other figures are as of October 2017.Photo: Shane Donglasan

20 21

If you've read the news lately, you already under- stand: sexual abuse at work is ubiquitous in the United States, but obstacles to reporting abuse make it difficult to quantify sexual harassment and sexual violence. Research suggests that at least 1 in 3 women experience sexual harassment in the work- place20; however, an estimated 75% of workplace sexual harassment is never reported to employers or the government.21

Sadly, women who do step forward are unlikely to achieve a successful outcome. In 2015, the EEOC in- vestigated 6,822 allegations of sexual harassment in the workplace. Claimants were successful only 25% of the time, and these cases normally take years to resolve.22 Victims may want closure quickly. Witness- es may be reluctant to come forward. Beyond this, the legal system presents real challenges related to burden of proof and proof of injury.

For the hundreds of thousands of farmworker wom- en in the US, the situation is much worse.

Human Rights Watch cites a 2010 survey of farm- worker women in California’s Central Valley which found that 80 percent had experienced sexual harassment or assault. Indeed, sexual harassment and violence are so common that some farmworker women “see these abuses as an unavoidable condi- tion of agricultural work.”23 As one female worker succinctly put it, “You allow it or they fire you.”24

As an EEOC regional attorney told investigators, “Sexual violence doesn’t happen unless there’s an imbalance of power. And in the agricultural industry, the imbalance of power between perpetrator, com- pany and the worker is probably at its greatest.”25

Women employed at Fair Food Program farms now live a different reality.

With education on their rights effectively conveying the message that women no longer have to tolerate abuse, coupled with access to a protected com- plaint mechanism, farmworker women now speak up without fear of retaliation or inaction. Supervi- sors found by the FFSC to have engaged in sexual harassment with physical contact are immediately terminated and banned from employment at other FFP farms for up to two years. Participating Growers must carry out these terminations, or face suspen- sion from the FFP with the accompanying loss of ability to sell to Participating Buyers. Supervisors terminated for less severe forms of harassment or discrimination also face a program-wide ban. Alle- gations of sexual harassment are investigated and resolved with unprecedented speed, averaging less than three weeks.

These measures have brought an end to impunity for sexual violence and other forms of sexual harass- ment at Fair Food Program farms, where there have been zero cases of rape or attempted rape since the implementation of FFP standards in Season One. Cases of sexual harassment by supervisors with any type of physical contact have been virtually eliminat- ed, with only one such case found since 2013.

After a year-long investigation of sexual assault in the fields from California to Florida, entitled "Rape in the FIelds," PBS Frontline declared the FFP to be the single most effective prevention program in the US agricultural industry.26 In an interview on NPR, the producer cited the FFP's “proactive policies, the par- ticipation of workers, and the economic incentives placed on anti-harassment policies."

“Before, we would hear about a contractor or supervisor who would take women to a private place, to the edge of the field, and we understood that sexual assault was what was happening.”

Now, we aren’t hearing these stories in the same way we used to.”

-Isabel, a 30 year-old Florida farmworker (2014) 27

In Focus: Women in the Fields

“The work that (the FFP) does makes you feel that you are not so alone in this country. I think many women now have more courage to speak and not remain silent." -Amalia Mejia Diaz, former farmworker who FFSC helped with asexual assault case (2015) 28

Photo: Shane Donglasan

22 23

In Contrast: Mexico The emergence of the Fair Food Program rapidly and significantly widened the human rights gap between the U.S. tomato industry and its compe- tition in Mexico. At the same time that workers, growers, and retailers are making unprecedented investments to address poverty and human rights concerns in the U.S. tomato industry, the Mexican industry remains mired in gross and largely un- checked human rights abuses.29

Due to the rapid growth of exports by lower-cost producers in Mexico, Florida growers have faced increasing price pressure. In Mexico, cost advan- tage is driven in large part by lower wages and inferior, often grossly abusive working conditions. These conditions have been exposed in multiple investigative reports in recent years, including the LA Times’ multi-year investigative report Product of Mexico: Hardship on Mexico’s farms, a bounty for U.S. tables. This investigation into tomato, pepper, and cucumber mega-farms across nine Mexican states found:

• “Many farm laborers are essentially trapped for months at a time in rat-infested camps, often without beds and sometimes without function- ing toilets or a reliable water supply.”

• “Some camp bosses illegally withhold wages to prevent workers from leaving during peak harvest periods.”

• “Laborers often go deep into debt paying in- flated prices for necessities at company stores. Some are reduced to scavenging for food when their credit is cut off. It is common for laborers to head home penniless at the end of a har- vest.”

• “Those who seek to escape their debts and mis- erable living conditions have to contend with guards, barbed-wire fences, and sometimes threats of violence from camp supervisors.”

• When three escapees from a growing operation called Bioparques notified the authorities, state and federal officials raided the labor camp and found “Two hundred seventy-five people had been trapped in the camp, including two dozen malnourished children. At least one man had been tied to a tree and beaten by camp boss- es….”

• “Major U.S. companies have done little to en- force social responsibility guidelines that call for basic worker protections such as clean housing and fair pay practices.”

What is more, the LA Times report pointed out that “A year and a half later, however, the case of Bioparques speaks more to the impunity of Mex- ican agribusiness than to accountability.” Indeed, despite the exposure these conditions are receiv- ing, the reports of abuse have continued. Late in May 2017, news broke of the disappearance of 80 indigenous Mexican farmworkers who vanished from a farm near Ciudad Juarez, Mexico, after they reported illegal wage deductions for food and housing that cut in half their already desperately low wages.30

An investigative report released by Univision in November 2017 identified the same abuses in Mex- ican agriculture — forced labor, child labor, extreme poverty, and unsafe working conditions – that the LA Times report had documented:

• “In Mexico’s fields, farmworkers live as if they were slaves every day….”

• “More than 1 million Mexicans are farmworkers that travel year after year to one of the states that produce products in order to work, and of that number, over 300,000 are children….”

• The report cited activists who have “document- ed the deaths of farmworkers that start with just a headache, because they have no kind of med- ical services. Moreover, they are forced to stay in the agricultural fields, working under threats that start at the beginning of their travel."

• Finally, they emphasized the role of organized crime in Mexican fields: “In the last decade, more than 200 farmworkers have disappeared from this country without a trace.”31

In stark contrast to the situation in Mexican agricul- ture, Fair Food Program growers’ partnership with farmworkers and Participating Buyers has helped forge the most modern, humane workplace in global agriculture.

“The real truth is that we're work animals for the fields." -Pasqual Garcia, farmworker in Mexico

to LA Times investigative reporters32

Photo: Alejandrina Castillo, 12, picks chile peppers near Teacapan, Sinaloa. (Credit: Don Bartletti, LA Times)

300,000 Estimated number of children

working in Mexican agriculture33

80 Number of farmworkers who vanished from a farm in Ciudad Juarez in 2017

after reporting illegal wage deductions for food and housing34

275 Farmworkers freed from slavery

at Bioparques, a large Mexican tomato grower supplying many US retailers35

$8 - $12 Normal daily pay

for farmworkers in Mexico36

24 25

In Contrast: The U.S. Outside the FFP The Fair Food Program has made tremendous prog- ress since it was first implemented across the Flor- ida tomato industry in 2011. However, much work remains to be done.

While key food industry leaders have joined the FFP, many more corporate buyers remain on the sidelines of what has become the most important farm labor reform movement in over a century for the East Coast’s agricultural industry. By refusing to join the Program, these non-participating buyers not only fail to shoulder their rightful share of the costs of safeguarding human rights in their supply chain but in fact undermine the progress that has already been made by exerting a destructive downward pressure on farmworker wages through their tradi- tional volume purchasing practices. As importantly, non-participating buyers also continue to provide a “low bar” market for growers who are unwilling to meet the high standards and rigorous enforcement of the Fair Food Program.

In other words, growers who are suspended from the FFP, or those who refuse to join in the first place, can be secure in the knowledge that a significant segment of corporate buyers will purchase their pro- duce, no questions asked. This poses a meaningful competitive disadvantage to Participating Growers who are making the necessary and significant in- vestments to comply with the Code. Those ethical growers deserve to be rewarded with real and sustained commitment from a growing base of Par- ticipating Buyers. With every additional buyer that joins the Program, farmworkers will receive greater and more consistent amounts of Fair Food Premium, and Participating Growers will enjoy the benefits and security of real market commitment to fundamental human rights from the retail food industry.

The Program's groundbreaking standards have already begun to travel. In the summer of 2015, the FFP expanded its coverage in tomatoes, including operations in Georgia, North Carolina, South Caroli- na, Virginia, Maryland, and New Jersey. Workers on these farms now receive worker-to-worker education from CIW and are covered by FFSC’s complaint res- olution mechanism. Each summer, the FFSC con- ducts its comprehensive audits of these growing op-

erations. During the 2015-2016 season, the FFP also expanded into crops other than tomatoes, including Florida bell pepper and strawberry operations.

Outside the protections of the Fair Food Program, U.S. farmworkers remain subject to a well-docu- mented array of unfair labor practices and abus- es that contribute to hostile and dangerous work environments. Even a small sample of news head- lines from recent years (see right) underscores the breadth and severity of these problems. In 2015, the EEOC won a jury verdict of more than $17 million in damages to female farmworkers who had been subjected to coerced sex, groping, and verbal abuse by farm managers while employed by More- no Farms in Florida.37 Unfortunately, that judgment is unlikely to ever be collected from the company which ceased operations after the case was decided, leaving the owners free to reorganize and create similarly abusive environments for other workers. In 2016, Red Diamond Farms, one of the largest Florida tomato suppliers that has refused to join the Fair Food Program, was assessed $1.4 million in penalties by the Department of Labor for unlawful hiring and pay practices.38 In 2017, Bland Farms - the largest grower of sweet onions in the United States - was ordered by a U.S. district court in Georgia to pay more than $1.4 million in back wages and damag- es to farmworkers.39 And a lawsuit filed in January 2018 alleges that operators of Saraband Farms, a Washington blueberry farm, repeatedly threatened immigrant workers with deportation, provided them with insufficient meals and told them to work “unless they were on their death bed.” Last summer, workers at Saraband Farm went on strike after one of their coworkers was hospitalized. Workers said that man- agers at the farm had ignored his requests to see a doctor before his death.40

Unfortunately, until market-incentives are aligned so that it is more profitable to adhere to humane labor standards than to ignore them - until there is a credible, enforceable threat of losing market share as a result of unfair treatment of farmworkers - these headlines about remedies sought after abuses have taken place represent the best case scenario for many farmworkers.

U.S. DEPARTMENT OF LABOR FILES LAWSUIT AFTER INVESTIGATION FINDS WASHINGTON STATE FARM DISCRIMINATED AGAINST AMERICAN WORKERS

SEATTLE, WA (2/27/18) – The U.S. Department of Labor has filed suit against a northern Washington berry farm for violating the labor provisions of the H-2A visa program. Sakuma Brothers Farms Inc. and the Washington State Farm Labor Association have been assessed $124,575 in civil money penalties and an additional $9,599 for failing to pay back wages to an eligible U.S. worker who was not hired and to workers who drove the buses that trans- ported workers to the farm.

Investigators with the Department’s Wage and Hour Division found that Sakuma Brothers Farms committed violations of the H-2A visa program. The Department’s Office of the So- licitor (SOL) subsequently filed the lawsuit with the Office of Administrative Law Judges, an administrative trial court for the Department.

The Department alleges Sakuma Brothers Farms gave unlawful preferential treatment to temporary foreign agricultural workers who were brought to the U.S. as part of the H-2A visa program. Sakuma Brothers Farms charged U.S. workers for housing deposits for which it did not charge the H-2A workers, did not provide U.S. workers with household goods that were free for foreign workers, and did not provide U.S. workers with the same transportation to the fields that it provided to the foreign workers. The investigation also found the farm illegally rejected qualified U.S. applicants for the jobs they gave to the H-2A workers. Further, the housing provided to the workers was not maintained to meet the standards required by the Occupational Safety and Health Act.

“This lawsuit reflects the Department’s commitment to strictly enforce our nation’s immi- gration rules that protect both U.S. and workers part of the visa programs,” said Regional Solicitor of Labor Janet Herold. “While this farm has taken steps to correct its practices, we seek to hold accountable those who unlawfully discriminate against American workers.”

Since the Department’s investigation and following parallel actions brought by a legal services organization, the farm has changed its employment practices and no longer participates in the H-2A program.

Employees and employers with questions about the H-2A Visa Program or any of the

U.S. DEPARTMENT OF LABOR INVESTIGATION RESULTS IN FARM LABOR CONTRACTOR PAYING $168,082 IN PENALTIES TO RESOLVE HOUSING CONDITION VIOLATIONS

SOLEDAD, CA (2/22/18) – Following an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD), Future Ag Management Inc. – a Soledad, California-based farm labor contractor – will pay $168,082 in penalties to resolve Migrant and Seasonal Agricul- tural Worker Protection Act (MSPA) violations that posed a direct and imminent threat to its employees.

WHD investigators found Future Ag Management Inc. provided housing with illegal and substandard conditions to agricultural workers during lettuce and cauliflower harvests in Monterey County during the summer of 2017. The contractor housed 22 employees illegally in facilities that failed to offer the minimum square footage required per person. The em- ployer also provided only one shower and sink to the 22 employees, fewer than required by law. Restroom facilities were found to be unsanitary and infested with insects. In addition to the dangerous overcrowding and unsanitary conditions, local health authorities also de- termined that the water provided to the workers by the employer for washing and drinking was unsafe for human consumption.

Upon discovery, the workers were immediately placed in hotels until adequate housing could be secured for the remainder of the harvest season.

“The living conditions we found in this investigation can only be described as inhumane,” said Susana Blanco, Wage and Hour Division District Director in San Francisco. “The Depart- ment of Labor remains committed to ensuring the wages and welfare of agricultural workers through our enforcement efforts, and through our ongoing educational efforts for employ- ers in this industry.”

NORTH CAROLINA POULTRY COMPANY, US LABOR DEPARTMENT AGREE ON BACK WAGES

BALTIMORE (5/30/17) – A North Carolina company that rounds up live chickens for poultry processors has paid nearly $600,000 in back wages and an equal amount in liquidated dam- ages to 838 workers as part of a settlement agreement with the U.S. Department of Labor.

The Marshville company, Unicon Inc., paid the back wages to employees who worked as chicken catchers and van drivers. Investigators with the department’s Wage and Hour Di- vision found violations of the Fair Labor Standard Act’s overtime and recordkeeping provi- sions at the company’s worksites throughout the northeast and southeast.

The violations resulted from the company’s failure to pay for all the hours employees had worked. Specifically, Unicon made automatic deductions from payroll for lunch and other breaks that crew leaders and catch crew members did not actually take. The firm also failed to pay workers for time they spent on work activities prior to the start of the actual catching process, and failed to pay crew leaders for time spent picking up catch crew members and cleaning company vans. The division also cited the employer for not maintaining time and payroll records.

“This agreement goes a long way to ensure that Unicon’s workers are made whole by pro- viding the wages they earned. It also levels the playing field for other employers in this in- dustry,” said Mark Watson, administrator of the division’s Northeast Region.

The division is committed to providing companies with the tools they need to understand

OSHA FINES PENNSYLVANIA CHICKEN PROCESSING COMPANY $317K FOR EXPOSING WORKERS TO HEALTH AND SAFETY HAZARDS FOLLOWING EMPLOYEE AMPUTATION

(9/14/16) OSHA initiated an inspection on April 2, 2016, after receiving a report that a worker suffered a thumb amputation while operating a mixing machine at Birdsboro Kosher Farms. At that time, the agency also initiated follow-ups to previous OSHA inspections conducted in 2013, 2014 and 2015 to ensure the workplace was free of the previously cited workplace hazards. In its inspection, OSHA found a deficient system for protecting workers from the hazards associated with the unexpected start-up of machinery and issued the willful cita- tions.

The serious violations included uncovered floor holes, a deficient hearing conservation pro- gram, inadequate egress signage, the company's failure to secure compressed gas cylinders, a failure to provide sanitary personal protective equipment or specialty foot protection at no cost to employees, and failure to post permit-required confined space signs.

Quote: "Birdsboro Kosher Farms is leaving its employees vulnerable to a variety of safety and health hazards that can cause serious injuries," said Timothy Braun, acting OSHA area di- rector in Harrisburg. "It is critical that the company take appropriate steps to ensure worker protection at its facility. Anything less is unacceptable."

COURT ORDERS GEORGIA ONION PRODUCER TO PAY WORKERS MORE THAN $1.4 MILLION IN BACK WAGES AND DAMAGES

ATLANTA, GA (10/19/17) – A U.S. District Court for the Southern District of Georgia has ordered Bland Farms Production and Packing LLC – an onion producer in Vidalia – to pay $1,480,268 in back wages and liquidated damages after the U.S. Department of Labor’s Wage and Hour Division found the employer violated the Fair Labor Standards Act (FLSA).

Bland failed to pay overtime to approximately 460 employees over the span of six years, the Division determined. Under the FLSA, employers must pay workers time-and-a-half when they exceed 40 hours in a work week. The overtime rule exempts company workers involved in primary agriculture, the act of growing product; or secondary agriculture, the act of pro- cessing, and packaging the product grown by that company.

Bland violated that rule when it failed to pay overtime wages to packing-shed employees involved in the processing and packaging of onions grown by other farmers who were con- tracted with the company to grow onions for sale to Bland. The contract farmers planted and

VEGETABLE SUPPLIER TO MAJOR GROCERY CHAINS ASSESSED OVER $1.4M IN CIVIL MONEY PENALTIES AFTER TWO-YEAR FEDERAL INVESTIGATION

(5/12/16) Red Diamond Farms also pays $149,572 in back wages to 380 workers

Investigation findings: Investigators from the department’s Wage and Hour Division Tampa District Office found that Red Diamond Farms and Torres violated provisions of the Fair La- bor Standards Act, Migrant and Seasonal Agricultural Worker Protection Act and H-2A tem- porary agricultural program. Specifically, investigators found the employer:

Provided preferential treatment to H-2A guest workers over corresponding domestic work- ers when it paid the guest workers higher rates and offered them more hours than the do-

EEOC WINS JURY VERDICT OF OVER $17 MILLION FOR VICTIMS OF SEXUAL HARASSMENT AND RETALIATION AT MORENO FARMS

(9/10/15) Florida Farm Managers Subjected Women Workers to Coerced Sex, Groping and Verbal Abuse, Then Fired Them for Objecting, Federal Agency Charged

In February 2016, a worker spoke to an investigator about his experience with racism and abusive working conditions at blueberry farms in Michigan, and how much better his experience on FFP farms had been. “Here, you can work with dignity regardless of your education or color.”

In December 2015, two workers spoke to investigators about experiencing abusive work condi- tions at a Florida strawberry farm that has not joined the FFP, where they were not allowed to take breaks and where field supervisors would fire workers if they stopped to drink water. In contrast, the workers said that, at the FFP strawberry farm where they were working now, they felt treated with respect and enjoyed working for a company that respected their rights.

26 27

Worker-Driven Social Responsibility: The Road Forward The Fair Food Program, which is currently negoti- ating opportunities for expansion in two additional geographic regions and new crops, influences work- places and supply chain initiatives far beyond itself. The FFP was the first comprehensive, fully functional model of the new Worker-driven Social Responsi- bility (WSR) paradigm, a human rights approach designed by workers themselves and anchored by legally binding agreements between the workers’ organization and the signatory retail brands who are the major customers of the suppliers who employ the workers. WSR holds tremendous promise for addressing human and labor rights abuses in global supply chains.

Internationally, WSR has been implemented through the 2013 Accord on Fire and Building Safety in Bangladesh in that country’s garment sector. This followed a series of horrific factory fires and building collapses in the supply chains of major US and Eu- ropean clothing brands. Union and witness signato- ries to the Accord included two global labor unions, eight Bangladeshi labor federations, and four NGOs. With more than 200 brand signatories, the Accord covers some two million workers. Many of the fac- tories that employ these workers have undergone a tremendous transformation to ensure their structural integrity and fire safety. In 2018, the Accord was extended five years to continue its progress.

To accelerate the growth of WSR, in 2015, seven or- ganizations from diverse sectors and fields of exper- tise, both domestic and international, came together to form the Worker-driven Social Responsibility Network. This multi-disciplinary collaboration drew from some of its members’ unique success with the FFP and the Accord. CIW was a founding member of the network, and the Fair Food Standards Council serves as technical advisor. The network’s purpose is to build understanding of the WSR model among a wide range of relevant actors; provide support for efforts to adapt the model to new sectors and places; and amplify and strengthen existing efforts through coordination, information sharing, and col- lective action.

One of the Network’s promising accomplishments on the ground is a nascent WSR adaptation on Ver- mont dairy farms known as Milk with Dignity. This program was created by Migrant Justice, a work- er-based human rights organization, with multi-year

technical assistance from CIW, FFSC, and other network members during four overlapping stages: exploration, standards development and program design; campaign and negotiations; and implemen- tation. On October 3, 2017, Migrant Justice signed a legally binding agreement with Ben & Jerry’s to launch the program in that iconic brand’s supply chain. As of 2018, Milk with Dignity is now oper- ational on Vermont dairy farms and monitored by the newly established Milk with Dignity Standards Council.

The Network is also building field-wide support for WSR among important actors in the labor and human rights movements. More than 50 leading organizations and individuals have endorsed the WSR Statement of Principles. These principles were developed by the network’s coordinating commit- tee over the past two years and outline cornerstone elements for the establishment and enforcement of the rights of workers in global supply chains. The organizational endorsers range from the AFL-CIO and Jobs with Justice to Human Rights Watch and Freedom Network USA. Individual endorsers range in background and include many important academ- ics, researchers, and authors on these issues. The network will continue to spread awareness of WSR and secure endorsements from additional US and international organizations.

Beyond the WSR Network, the CIW has also par- ticipated in several high-level forums and other engagements related to the possible application of the FFP model and WSR paradigm. These include presentations to the Annual Forums of the United Nations Working Group on Business and Human Rights, the United Nations Special Rapporteur on Trafficking in Persons, the European Union, and the Organization for Security and Cooperation in Eu- rope. The CIW has also participated in delegations organized by the AFL-CIO Solidarity Center to con- sult with Moroccan farmworkers and has engaged other US and international groups exploring supply chain labor rights initiatives.

Additionally, in recent months, CIW has hosted del- egations of worker organizations from other agricul- tural sectors, as well as the janitorial, construction and poultry industries, who are seeking to adapt the Fair Food Program’s model of worker-driven social responsibility to their workplaces. Inside a milking parlor on a Vermont dairy farm.

(Credit: Caleb Kenna/The Golden Cage Project/Vermont Folklife Center)43

Enrique Balcazar of MIgrant Justice, left, and Jostein Solheim, chief executive of Ben & Jerry's, announcing the Milk With Dignity Agreement.

(Credit: Caleb Kenna for the New York TImes)44

28 29

Results Throughout the Fair Food Program's first six sea- sons, FFSC has maintained detailed records of its monitoring efforts, tracking data from all audits and complaint investigations. For each standard includ- ed in the Fair Food Code of Conduct (see Appendix A), FFSC grades both individual grower perfor- mance and industry averages, based upon metrics developed to gauge compliance. This mapping provides an accurate reflection of Program trends and effectiveness.

Qualitative feedback from workers and growers has provided powerful insight into the Program's im- pact on working conditions, workplace culture, and the well-being of farmworkers and their families, as well.

The following pages provide a more in-depth review of the implementation of FFP standards, with particular focus on the four Program founda- tions – standards generated by workers themselves, effective education for workers on their rights and responsibilities in the FFP, comprehensive monitor- ing consisting of audits and complaints, and mean- ingful market consequences - as well as key Code provisions.

Overall trends in the data are clear. In a few short years, the Fair Food Program has reshaped the practices of the Florida tomato industry, which is now recognized as the best work environment - with the most impactful and verifiable workplace stan- dards - in US agriculture. The types of abuses that still pervade many global brands' low-wage supply chains - impacting workers in the garment, electron-

ics, home goods, seafood, and other agricultural sectors – have been eliminated through enforce- ment and ultimately prevented by the FFP.

For workers employed at Fair Food Program farms - the mother who no longer must leave her dignity in the fields in order to feed her family, or the father who no longer fears violence or losing his job for asking about unsafe conditions or missing pay - the progress brought forth by the FFP is profound and personal.

FFSC's evaluation of the Fair Food Program began in the Program's infancy, when the industry was defined more by its deficiencies in Code compli- ance than its accomplishments. For this reason, previous annual reports evaluated compliance on a year-to-year basis, focusing on granular examples and advances between individual seasons, each of which represented unprecedented gains. Indeed, between Seasons 1 and 4 (November 2011 through October 2015), most Participating Growers' opera- tions were dramatically transformed, achieving high levels of compliance across all areas of evaluation.

By the beginning of Season 5 (2015-16), the Pro- gram had entered a new moment, defined less by the need for fundamental change than the task of sustaining remarkable gains already achieved. In a period of economic challenges for the industry, slight declines in compliance were noted. Due to the Program’s ability to thoroughly address these issues through a rigorous corrective action process, however, Season 6 (2016-17) represented the high- est Program-wide compliance levels to date.

Photo: Shane Donglasan

30 31

Code Standards

Direct Hiring Growers must have a standardized system that guar- antees all workers are hired as direct employees, and placed on company payroll before they begin work.

Record Keeping Growers must maintain personnel files with detailed records of worker injuries, Workers Compensation claims, training records, and disciplinary history.

Supervisor Licensing All individuals involved in recruiting, transporting, and housing workers must have all required state and federal licenses. Vehicles must be properly inspected, registered, and insured. Housing provided must be safe and secure with required permits and inspec- tions.

Hiring & Registration

Education & Training Worker-to-Worker Education Workers must participate in CIW education sessions each harvest cycle, paid at an hourly rate.

Supervisor Training At the start of each season, farm labor contractors and all other supervisory personnel must be trained on FFP and company policies, including their respon- sibility to ensure a respectful work environment and immediately report all complaints.

Training and the Point-of-Hire Growers must have a standardized system that guar- antees all workers are provided with comprehensive training on FFP and company policies - paid at an hourly rate - before they begin working.

Progressive Discipline Farm supervisors and human resources staff must adhere to a policy of escalating discipline, in which workers are given a series of verbal and written warn- ings prior to termination

Health and Safety Committee Growers must hold monthly Worker Health and Safety Committee meetings that include a minimum of five qualifying workers and at least one worker from each crew.

Meetings must provide Committee members – who are compensated at an hourly rate - with the ability to share concerns with management representatives. Any resolutions or corrective actions resulting from meetings must be shared must be effectively commu- nicated to all crews.

Shade, Bathrooms, Water, & PPE Workers must verify that shade, bathrooms, and drink- ing water are consistently made available and accessi- ble throughout each workday. Growers must provide all required personal protective equipment (PPE) to workers at no cost.

Injuries & Endangerment Growers must effectively implement health and safety policies that include: • Injury and illness response, insuring adequate

and timely treatment, an injury log and company assistance with handling workers’ compensation claims;

• Lunch and breaks; • Reasonable days off to rest or attend to personal

matters; and • Work stoppages due to dangerous conditions.

Auditors must find no evidence of unsafe or unautho- rized transportation, improper pesticide exposure, or other forms of negligent endangerment.

Health & Safety

FFSC monitoring is designed to verify compliance with the Code of Conduct, a set of standards generated not by outside “experts” but rather by workers who had experienced and understood the sources of entrenched abuses in their workplaces.

Through its 24-hour complaint hotline and rigorous audit program tailored to the agricultural industry, FFSC investigators continually examine all aspects of Participating Growers’ operations. The descriptions below summarize the key areas of the Code, and audit measures that FFSC uses to gauge grower compliance.

Growers and farm supervisors must cooperate with FFP education and audits, including scheduling, document provision, and interviews.

Workers must speak freely and show no signs of supervisor coaching or intimidation designed to interfere with the audit process.

Transparency & Cooperation

Auditors must find no evidence of sexual harassment, discrimination, verbal abuse, or other conditions con- tributing to a hostile work environment.

Supervisors must demonstrate a clear understanding their responsibility to prevent, identify, and report issues of sexual harassment, discrimination, and verbal abuse.

Work Environment

Company-provided worker housing must be compli- ant with all state and federal regulations.

Any deductions for housing costs cannot reduce workers’ earnings below the minimum wage.

Housing must be clean and safe, and the company must facilitate timely repairs of any issues reported by workers.

Housing

Grower records must demonstrate accurate and timely distribution of FFPP to qualifying workers.

Ineligible supervisory employees must be excluded from FFPP distributions, and FFPP distributions can- not be included in minimum wage calculations.

Fair Food Premium

Wages, Hours, & Pay Practices Pay Practices Workers must be provided with payslips that include hours worked, production, itemized deductions, and gross and net wages.

Growers must ensure that workers receive their own paychecks, including having a standardized system in which workers sign for their paychecks and can request that final checks be sent to a forwarding ad- dress. Third-party authorizations may designate fellow workers, but not supervisors, to pick up paychecks.

Unclaimed checks must be fully accounted for and safely stored by grower payroll staff.

Bucket-Filling Standard Workers must not report, and auditors must find no evidence of, demands for overfilled buckets.

Wages & Hours Growers must have a timekeeping system that accu- rately tracks workers’ compensable hours for payroll calculations, and must demonstrate minimum wage compliance and accurate payment of wages.

Workers must not report unrecorded (compensable) wait time before or after work, and all work-related tasks must be performed on the clock. They must be informed of daily start times and control their own timecards when clocking in and out.

Grower and FFSC complaint hotline numbers must be provided on workers’ payslips, in training materials, and at central posting locations at each farm.

Growers must maintain a complaint log and report all complaints they receive to the FFSC within two days.

Growers’ complaint intake, investigation, and reso- lution procedures must be effective and cooperative with the FFSC.

FFSC must find no evidence of retaliation.

Complaint Procedure

Auditors must find no evidence of forced labor, child labor, sexual harassment with physical contact, or other forms of violence.

Zero Tolerance Provisions

32 330

100

S1 - 2011-12 (Avg) S2 - 2012-13 S3 - 2013-14 S4 - 2014-15 S5 - 2015-16 S6 - 2016-17

Season Three (2013-14) As a whole, Participating Growers had made significant and concrete progress towards

full compliance, particularly in the areas of worker registration, timekeeping and minimum wage, prevention of a hostile work environment, safe transportation, and shade in the fields.

Most growers achieved very high compliance marks, while a minority of growers continued to lag behind acceptable standards. Where persistent areas of non-

compliance were found, FFSC re-visited Participating Growers’ operations multiple times to verify implementation of corrective actions. In addition to helping

growers draft and implement compliant company policies, FFSC conducted numerous training sessions for field-level supervisors and farm staff.

A number of Participating Growers that had not properly dealt with ongoing areas of non-compliance were eventually suspended for failure to pass remedial audits.

Season Four (2014-15) Grower compliance reached new

heights across the board. Nearly all growers had consistently and effectively

implemented worker registration and training systems, timekeeping systems,

complaint resolution procedures, and safe transportation practices.

The Program's policy on bucket- filling had been universally

adopted and accepted.

Crews that had previously worked as informal contractors dedicated to "vine ripe" harvesting – a high-

risk sector for forced labor and wage theft - were consistently

included on company payrolls.

Program expansion beyond the Florida tomato industry was formally

launched. During the summer of 2015, FFSC carried out comprehensive

audits of seven major tomato-growing operations in six states outside of Florida - including operations in

Georgia, South and North Carolina, Virginia, Maryland, and New Jersey.

Season Six (2016-17) Grower probations and corresponding

corrective action plans resulted in a rebound from Season 5 setbacks. In nearly every area of compliance, Participating Growers achieved the

highest average scores received since the start of the FFP.

No Participating Grower has been suspended for more than one 90-

day period. All Participating Growers that sought to return – 4 of the 7

suspended - were assisted by FFSC to reach and exceed required levels of

Code compliance for Program re-entry.

Season Five (2015-16) After four consecutive seasons of

continual improvement, in a period of increased economic challenges

for the industry, the FFP experienced lapses in compliance on the part of a number of growers, driving down average compliance scores for the industry. These setbacks resulted in probation status imposed on a

significant number of growers.

FFSC uncovered and successfully guided the prosecution of the first

and only forced labor case found on a Fair Food Program farm. That farm

was suspended, in accordance with the Program’s zero tolerance provisions.

Pilot programs began in Florida strawberries and bell peppers, and the Program entered its second season of expansion up the Eastern Seaboard.

Season Two (2012-13) Building on the knowledge base from its inaugural

season, FFSC conducted announced and unannounced audits to evaluate compliance with

Participating Growers' corrective action plans.

Compliance with corrective action plans varied widely, but - as a whole - the industry had begun

taking meaningful steps towards compliance with the Code's most fundamental standards - including direct hire, worker and supervisor education, timekeeping,

cooperation with the FFP complaint resolution mechanism, and health and safety standards.

FFSC began working closely with Participating Growers to retool their management systems and

internal practices. Remaining compliance gaps were addressed with comprehensive corrective action plans

tailored to each grower’s operations and staffing.

One Participating Grower was suspended for failure to comply with fundamental Code

timekeeping and payroll practices.

S e a s o n O n e ( 2 0 1 1 - 1 2 ) In November 2011, following a brief pilot

period, the FFP expanded to cover the Florida tomato industry – from south of Miami to the Georgia border – and the Fair Food Standards Council assumed

responsibility for monitoring the Program.

FFSC conducted baseline assessments – including company questionnaires and

announced audits – to measure growers’ initial level of Program implementation,

which - with the exception of a few growers that had begun implementing more advanced practices - was found

to be deficient across the board.

The FFSC also drafted corrective action plans to chart a course for farms needing to develop management systems capable

of Code compliance. Two Participating Growers were suspended for failure to

engage with the corrective action process.

The Program's 24/7 complaint hotline expanded statewide.

Charting Progress Participating Grower Average Compliance Scores

Seasons 1 - 6

34 35

Compliance In Practice

Worker-to-Worker Education With the implementation of the Fair Food Program, farmworkers - for the first time - began hearing their rights explained by men and women who have also spent their lives working in the fields.

Each season, CIW conducts education sessions on the property of all Participating Growers, who pay workers at an hourly rate for participating. In interactive peer-to-peer discussions, both newly hired and returning workers can ask questions about their rights and responsibilities under the Program and receive answers that are meaningful to them, based on shared experience. This empowers workers – each and every worker on any given farm – to be the frontline defender of his or her own rights through use of the complaint mechanism.

Furthermore, education sessions are typically carried out at farms shortly before FFSC audits are scheduled to

take place. This ensures that - when FFSC investigators step into the fields - workers are informed about their rights and feel confident in the central role they play in identifying problems and risks in the workplace, free of retaliation, as effective partners in the auditing process.

During Season 1 and Season 2 (2011-2013), a small number of growers failed to facilitate worker-to-worker education sessions at their operations. Since Season 3 (2013-14), 100% of all Participating Growers - including at all expansion sites outside of Florida - have been compliant with worker-to-worker education requirements.

• Participating Growers coordinate with CIW’s Worker Education Committee during each harvest cycle to ensure that all crews participate in education sessions.

• Management representatives are present to introduce CIW and convey the company’s support of the FFP.

• Companies utilize separate training payroll codes under which education sessions and other trainings are tracked to ensure proper hourly compensation.

• Attendance is typically kept to 100 workers or less so that constructive dialogue can take place.

660 Education Sessions

51,958 Workers in Attendance

100% Growers compliant

with worker-to-worker education requirements

"FFSC stands on the foundation of worker-to-worker education..."

-Susan Marquis

2016- 2017

220,000 KYRR Booklets Distributed

100% Growers have integrated FFP materials into worker training

E d u c a t i o n a t t h e Po i n t o f H i r e Prior to starting work in the fields, all workers must receive a copy of the Program's “Know Your Rights and Responsibilities” booklet in English, Spanish, or Haitian Creole. Audio versions of the book are available for low-literate workers. The KYRR booklet describes the basic protections established by the Code, as well as how workers can make complaints concerning Code violations.

Workers also view the CIW-produced FFP training video, in which they see their rights and responsibilities

demonstrated in realistic scenarios, scripted and portrayed by farmworkers.

In addition to FFP training, Participating Growers are required to provide workers with comprehensive training on written company policies, which must be in compliance with the Code of Conduct. A bilingual trainer must provide a verbal review of key company policies, as well as the opportunity to discuss any questions workers may have.

During Season 6, 100% of Participating Growers had fully implemented FFP materials into their trainings for new hires and returning workers.

Compliance In Practice Company-led trainings are carried out by bilingual trainers who provide a comprehensive verbal review of company and FFP policies, as well as the opportunity to discuss workers' questions.

36 37

Compliance In Practice

Complaint Resolution

Before the Fair Food Program, farmworkers had little to no recourse in the face of abuse. Workers who complained to supervisors about missing pay or unsafe working conditions were frequently subject to retaliation – including physical and verbal abuse followed by termination. Without effective enforcement mechanisms in place to ensure that retaliation did not take place, workers often concluded that raising complaints in the workplace was not possible.

With the implementation of the FFP, the right to complain without fear of retaliation transformed the work environment for farmworkers - as well as the labor contractors who once ruled the fields with impunity. Worker education has created thousands of worker- monitors who actively enforce their own rights in the workplace, as well as through their interactions with CIW Education Committee members and the FFSC.

Workers quickly learned of their ability to use the FFSC’s hotline through company training, worker-to- worker education sessions, interactions with FFSC field investigators, and from friends and relatives who had obtained successful complaint outcomes. CIW education sessions are another channel that workers use to raise complaints and concerns about the work environment. Strict enforcement of Code provisions against retaliation has both increased workers’ confidence in the safety of the complaint process and acted to deter all forms of retaliation by supervisors.

During Season 6, auditors found no evidence of retaliation or threats of retaliation against workers who brought forth complaints on nearly 85% of FFP farms. On those farms where instances of retaliation or threats of retaliation were identified, they were limited to the behavior of one or two supervisory employees, whose actions have been addressed through the corrective action process.

As the effectiveness of grower complaint investigation procedures were evaluated through the FFSC audit process, corrective action measures provide a road

map for strengthening Participating Growers’ ability to handle, investigate, and resolve complaints in collaboration with FFSC.

One of the keys to the effectiveness of the Program's complaint process is the speed with which resolutions are achieved. For migrant workers who move frequently to follow seasonal farm work - justice delayed is truly justice denied. During Season 6, 50% of all cases received were resolved in less than two weeks, and an additional 29% were resolved in less than one month. Over the life of the Program, 53% of all cases have been resolved in less than two weeks, and 79% of all cases have been resolved in less than a month.

Many Participating Growers have also developed a deeper commitment to a joint complaint resolution process, driven by the recognition that workers frequently have valuable insight into workplace practices.

Between November 2011 and October 2017, the FFP received nearly 1800 worker complaints, in addition to the concerns raised by workers during FFSC audits. 39% of these complaints were found to represent Code violations, while 19% were found not valid. In 30% of all cases, agreeable resolutions have been reached even when no Code violations were confirmed, demonstrating increasing cooperation in resolving the problems and concerns of workers. During Season 6, these resolutions represented nearly 40% of all cases resolved by FFSC.

This collaborative partnership in the complaint process relies heavily on the credibility and integrity of FFSC's investigations, which treat all complaints with the same dedication to a thorough and accurate fact-finding process. In the event that agreement cannot be reached on complaint resolution, Participating Growers may appeal FFSC’s proposed resolutions through arbitration. As a testament to the Program’s fair and objective approach, there has been only one such appeal to date.

• Workers have access to a toll-free hotline (Spanish, Haitian Creole, English) answered 24/7 by an FFSC investigator.

• Company and/or FFSC hotline numbers are provided in training materials and at central posting locations at each farm.

• Supervisors and workers are effectively trained on how to make and report complaints, including company complaint procedures and policies against retaliation.

• Complaints received by either growers or FFSC are shared with the other party within two working days.

• Growers work collaboratively with FFSC to ensure effective complaint investigation and resolution.

• Growers do not interfere with FFSC complaint investigations, and neither engage in nor permit retaliation against workers who make complaints.

• In the event that retaliation does take place, failure to address the issue with disciplinary action against the offending supervisor and redress for the worker results in probation or suspension from the Program.

24/7 FFSC Hotline Hours

1800 Total Hotline Complaints

53% Complaints Resolved

in Less than Two Weeks

79% Complaints Resolved

in Less than One Month

Photo: Shane Donglasan

37% 33% 49%

62% 60% 50% 53%

24% 35%

25%

23% 25% 29% 26%

38% 31% 26%

16% 15% 21% 21%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Season 1: '11-'12 Season 2: '12-'13 Season 3: '13-'14 Season 4: '14-'15 Season 5: '15-'16 Season 6: '16-'17 All Seasons

Complaint Resolution Timeframe (Days to Resolution)

0 - 13 14 - 27 28+

38 39

An FFSC investigator interviews a tomato harvester at a Fair Food Program farm. Photo Credit: Shane Donglasan

Valid Code Violation

Resolution Reached

39%

No Violation of Code of Conduct,

Resolution Reached

30%

No Code Violation or

Not Valid after Investigation

19%

Informational Only 7%

Could Not Investigate 5%

Complaint Outcomes (Seasons 1 - 6)

107

197

271

524

350

349

0 100 200 300 400 500 600

Season 1 (2011-12)

Season 2 (2012-13)

Season 3 (2013-14)

Season 4 (2014-15)

Season 5 (2015-16)

Season 6 (2016-17)

Hotline Complaints (By Season)

14.3% 16.0%

27.0% 29.6%

38.6% 39.9%

0.0%

5.0%

10.0%

15.0%

20.0%

25.0%

30.0%

35.0%

40.0%

45.0%

Season 1 (2011-12)

Season 2 (2012-13)

Season 3 (2013-14)

Season 4 (2014-15)

Season 5 (2015-16)

Season 6 (2016-17)

No Code Violation - Resolution Reached (By Season)

47.6%

52.1%

42.2%

46.5%

32.6%

27.3%

20.0%

25.0%

30.0%

35.0%

40.0%

45.0%

50.0%

55.0%

Season 1 (2011-12)

Season 2 (2012-13)

Season 3 (2013-14)

Season 4 (2014-15)

Season 5 (2015-16)

Season 6 (2016-17)

Code Violation - Valid - Resolution Reached (By Season)

Above: The growing cooperation between Participating Growers and the FFSC in complaint resolution is represented in the graph on the left, while the decrease in severity of complaints over time is represented in the graph on the right.

Below: The total number of complaints, by season, is represented in the bar graph on the left, while in the breakdown of FFP complaint outcomes is displayed in the pie chart on the right.

40 41

Season 1 A worker who mistakenly called a grower’s complaint line thinking that his confidentiality would be protected was physically grabbed by the grower, verbally abused, and fired. Following FFSC’s investigation, as part of FFP corrective actions required to avoid suspension, the grower publicly apologized to that worker and the entire workforce, in the presence of CIW and FFSC staff. The affected worker was invited back to work, with pay for the days he had missed, and all workers were assured that they were free to make complaints, with- out retaliation, going forward. Following this resolution, workers reported a greatly improved work environment and multiple complaints from this farm have since been resolved with no further issues.

Season 2 A woman who had been sexually assaulted by a crew- leader at company housing contacted CIW. CIW staff assisted her in reporting this case to the authorities and FFSC carried out a prompt investigation, includ- ing visiting the scene and interviewing all witnesses. The crewleader was terminated and banned from all Fair Food Program farms. The complainant in that case now speaks to other farmworker women, as well as the public, to let them know that they “do not have to be subjected to the same kind of abuse, that the Fair Food Program makes sure that you will not be alone and your voice will be heard.”

Season 6 Workers reported that a crewleader had been "borrow- ing" substantial amounts of money from workers on his crew without paying them back. The workers were initially afraid to report this issue because the crewlead- er had previously retaliated against workers who did not lend him money by refusing to give them work.

After FFSC informed the Participating Grower of this complaint, the company investigated and immediately terminated the crewleader. Company HR met with the affected crew to inform them why their crewleader had been terminated, and to offer full reimbursements to any workers who were still owed money.

Season 3 Several workers, including a Health and Safety Commit- tee member, complained about a field truck driver who made lewd gestures and used discriminatory language towards Haitian women. Auditors were present as this driver made a sexually charged joke in the presence of a company representative, who immediately sus- pended the driver. The company’s human resources staff conducted a prompt investigation, speaking with FFSC about reports received in the field, and confirm- ing those reports with multiple workers. The offending supervisor was terminated in less than 24 hours from the time the company became aware of his behavior.

Season 5 A couple was fired in violation of a Participating Grow- er’s disciplinary policy for leaving work early one afternoon to pick up their children, after notifying their crewleader of the need to do so. Although the compa- ny initially told FFSC that these workers were not called back due to a decline in the need for labor, examina- tion of payroll records requested by FFSC revealed that in fact, their crew continued to work for more than two weeks after they were terminated.

As part of the complaint resolution, these workers were invited to return to work and compensated for the work that they missed due to their improper termination. The crewleader was disciplined and retrained on the com- pany’s disciplinary policy.

Word spread.

"We understand that, for so long, workers never had a voice. And now that they have a voice, they are going to use it to tell us what is not going right out there."

-FFP Farm Compliance Director (2017)

Season 4 A worker noted the dramatic improvement in supervi- sor behavior after a complaint was resolved by FFSC:

“There is a huge difference now since we have started this season, the conditions here are really improving. For example, the supervisors used to get angry, and now they behave respectfully towards us. Now we can make a complaint without fear of retaliation, and [the supervisors] treat us well and as if we are all equals, without preference for one over the other. Now I feel happy to harvest here.”

“I tell workers all the time that, if they ever have any problems that they don’t feel comfortable sharing with me, they should call the number in the Know Your Rights and Responsibilities booklet….

I’m not worried about workers calling because I know I’m doing my best and have nothing to hide.” -FFP Crewleader (2014)

Photo: Shane Donglasan

42 43

Compliance In Practice

Auditing & Transparency In the same way that successful complaint resolution requires that workers trust they can make complaints without retaliation, audits require full cooperation and transparency from Participating Growers and field-level supervisors.

The Fair Food Program has provided FFSC - the Program's dedicated monitoring body - with access to all levels of Participating Growers' operations, from company owners to farm managers and crewleaders. Growers provide requested records, including company policies, training and injury reports, worker registration and payroll files, and documentation of Fair Food Premium receipts and distributions.

In the fields, on buses, and at migrant housing camps, FFSC investigators interview at least 50 percent of the workforce present at growers' operations each season. Interference with auditors’ interactions with workers and field-level supervisors, in the form of intimidation or coaching, is strictly prohibited.

This unprecedented degree of insight into growers' operations and management systems has helped provide the perspective needed to identify barriers to compliance with the Code of Conduct. Each season, the problems and risks described in FFSC's comprehensive audit reports shape detailed Corrective Action Plans that serve as a roadmap to full implementation of Code standards.

In the early years of Program implementation, some company representatives and supervisors did

not welcome additional scrutiny of their farming operations. FFSC faced numerous instances in which farm management or field supervisors interfered with auditing by coaching or intimidating workers. In each instance, FFSC required that farm management hold a meeting with the affected workers to issue an apology and reaffirm its commitment to the Program to avoid probation and/or suspension. Workers were assured of their ability to speak freely and confidentially with auditors, free from fear of retaliation. Corrective actions included disciplinary warnings and - in some instances - suspensions for the offending field-level supervisors. This was followed by retraining on transparency and cooperation, led by the FFSC.

Although FFSC still identifies occasional obstacles to full transparency and compliance, a strong working relationship has developed between FFSC investigators and Participating Grower staff. Those issues that are identified are resolved through growers' disciplinary procedures and the corrective action process.

During Season 6, cooperation with FFSC audits was the established norm for the vast majority of Participating Growers. Lack of cooperation from management resulted in significant obstacles to FFSC monitoring at only two farms, both of which were promptly placed on probation. At only one operation did non-cooperation result in significant problems interviewing workers. The responsible supervisor was disciplined and retrained immediately following the audit.

• Growers train workers and supervisors on the company's commitment to transparency and cooperation with the Fair Food Program.

• Growers are fully cooperative with audits - including scheduling, assistance with logistics, and unimpeded access to records, management personnel, workers, harvesting operations and housing.

• Field supervisors do not interfere with auditing procedures, including intimidation or coaching of workers.

• Failure to cooperate with audit procedures is subject to disciplinary action and - if unaddressed - is grounds for probation or suspension from the Program.

• Growers and FFSC work together to develop corrective action measures to address individual audit findings.

2016 “There were no bathrooms, breaks, or shade.

Now, everything is so much better.”

2014

“You used to feel alone... so alone."

20,000 Interviews with Workers

690 Interviews with Labor Contractors

228 Field Operations Audits 205 Financial Audits

184 Management Audits

6839 Audit Findings Addressed

169 Corrective Action Plans

2017 “It used to be that I counted down the

minutes until the end of the day. Since the CIW, everything has changed...

everything we need is provided.”

2013 “We see you everywhere...

Things are better since you are at the farms. You must keep coming back.”

2015 “People were suffering, and they could not

complain about abuses or they would be fired. But now there is the Fair Food Program,

and people’s rights are respected.”

In January 2015, a farm manager recalled how the Fair Food Program seemed like a burden at first, but that he has come to recognize the value of the changes it has brought. “I remem- ber flipping through the Code of Conduct and asking: Shade? Time clocks? A Health and Safety Committee? But all of those things have made us a better company and created a better work environment for our employees.”

He described how company crewleaders had told him about groups of workers who left the company to try working at a nearby tomato farm outside of the Program, only to quickly return and complain that the other company did not do a good job keeping track of workers’ hours or pay, that there were no bathrooms or shade, and that supervisors were verbally abusive.

He said, “It makes us feel good to see how our investment has paid off.”

He compared the experience of implementing the FFP to when food safety requirements were first introduced in the early 2000s, before which farms were not required to have hand-washing stations or portable bathrooms in the fields. “You think about that now and realize how disgusting it was.” He then talked about how the Florida tomato industry was one of the first industries to adopt food safety standards and is now considered a leading model. Contrasting the company’s farms with conditions in Mexico, he reflected on how the Florida tomato industry is helping set the bar for socially responsible labor practices in agriculture.

Voices From the Fields

“Our investment has paid off.”

44 45

Compliance In Practice

Market-Based Enforcement

Pilot (2009-11)

Season 1 (2011-12)

Season 2 (2012-13)

Season 3 (2013-14)

Season 4 (2014-15)

Season 5 (2015-16)

Season 6 (2016-17)

Probation and Suspension History

Probations Suspensions

The FFP is an enforcement-focused approach to social accountability, and enforcement needs teeth to work. Market consequences – built into the Program through CIW’s Fair Food Agreements with Participating Buyers – are the teeth of the Fair Food Program.

Participating Buyers agree to only purchase Florida tomatoes from Participating Growers in good standing. The farms of Participating Growers in six additional states must now also be in compliance with the Code. The same is true of the strawberry and pepper oper- ations that have joined the Fair Food Program. In the event that a grower is suspended, Participating Buyers are required to suspend purchases from the Participating Grower until that grower is returned to good standing.

For buyers, benefits of FFP participation include trans- parency and elimination of supply chain risks at a time when consumers - with access to instant information - are increasingly aware of the conditions under which their products are produced, and expecting corpora- tions to do their part in addressingthe pressing social problemsof the day, from climate change to sexual harassment.

Through the Program's collaborative complaint reso- lution and corrective action procedures, Participating Growers are given multiple opportunities to address Code violations. Initial failure to address violations through agreed-upon corrective actions may result in probationary status, while continued failure to address Code violations results in suspension from the Program.

If Participating Growers do not come into compliance with the Code through agreed upon corrective actions, they simply cannot sell to Participating Buyers.

For growers, benefits include (but are not limited to): becoming employers of choice; reducing turnover and increasing productivity; preventing risks, including law- suits and administrative fines and penalties; improving management systems; reducing workers’ compensation costs; and obtaining verification of ethical labor practic- es, thereby giving them a competitive edge with buyers.

Together, the promise of preferred purchasing and the legitimate threat of diminished market access have worked as powerful drivers of compliance. Over the life of the Program, most growers have reacted to market consequences by substantially and continually improv- ing their compliance with the Code of Conduct.

As seen in the "Probation and Suspension History" chart to the right, nearly all suspensions to date took place in the FFP’s first three seasons, the same timeframe in which compliance also saw its most drastic improve- ment. Throughout the history of the Program, no Partici- pating Grower has been suspended twice.

At the same time, the number of annual probations has remained steady since Season 2. These trends demonstrate that, although suspensions have become increasingly rare over time, market consequences have remained essential to maintaining high levels of compli- ance.

• Participating Buyers only purchase covered produce from Participating Growers in good standing.

• Participating Buyers halt purchases from growers who have been suspended from the Program.

• Zero-tolerance findings of forced labor or child labor at a Participating Grower's operation result in immediate suspension.

• A grower’s failure to terminate supervisors found to have committed acts of violence, or sexual harassment with physical contact, results in suspension from the FFP.

• Participating Growers are given repeated opportunities to remedy violations through a collaborative complaint resolution and corrective action process.

• A grower’s failure to remedy violations addressed in Corrective Action Plans may result in probationary status.

• Persistent failure to address Code violations results in suspension from the Program.

90 Days First Suspension

180 Days Second Suspension

365 Days Additional Suspensions

7 Suspensions

24 Probations

0 Number of growers that have been

suspended twice

“FFSC monitoring and enforcement are effective because there is a real hammer: loss of market share imposed by the brands...” – Jim Brudney, Crowley Chair in Labor and Employment Law, Fordham University45

Photo: Shane Donglasan

46 47

Compliance In Practice

Zero Tolerance Provisions All participants in the FFP have committed themselves to the eradication of forced labor, child labor, violence, and sexual assault, which represent the worst offenses suffered by thousands of farmworkers over many de- cades.

The Code requires termination of supervisors found to have violated the Code’s zero-tolerance provisions. Any such offenders are ineligible for employment at Fair Food Program farms for two seasons to five years, depending on the offense. Retraining acceptable to FFSC must be completed before employment eligibility at Participating Growers can be reinstated. A second offense results in a lifetime ban from Fair Food Program farms. Failure by a Participating Grower to impose these sanctions results in suspension from the Program.

As a result of worker complaints and audit findings, FFSC and Participating Growers have worked together to rid the industry of its worst actors and publicly affirm the Code's zero tolerance provisions.

Between Seasons 1 and 6, there have been a total of nine valid cases that involved sexual harassment with physical contact, as shown in the chart below. In each case, the offending supervisor or co-worker was

promptly terminated. Cases of sexual harassment by supervisors with any type of physical contact have been virtually eliminated, with only one such case found since 2013.

In addition, between Seasons 1 and 6, FFSC resolved a total of 11 cases that involved a total of 10 supervisors committing or threatening violence against workers. Complaint resolutions included nine terminations of offending supervisors and one demotion from a super- visory position. Additionally, four other supervisors were provided with final warnings for failing to take proper action to prevent, intervene in, or participate transpar- ently in investigations of these incidents.

During the Program's first four seasons, FFSC found no cases of forced labor on FFP farms. When workers and FFSC uncovered a forced labor case during Season 5 – a case that arose because the FFP’s prevention mecha- nisms were ignored by the grower - the Program's com- plaint notification and investigation procedures enabled the swift investigation, resolution, and prosecution of the perpetrator (see Mendez Slavery Case). Season 6 saw even further tightening of FFP-recommended pre- vention systems at the farm impacted by this case and no further cases of forced labor.

• Upon notification of complaints alleging violations of zero-tolerance provisions, growers facilitate FFSC investigations by providing access to witnesses and records.

• Interviews conducted by FFSC and the grower are prompt and carried out under circumstances that protect the confidentiality and safety of witnesses.

• Credible claims of forced labor and child labor are referred to law enforcement. Assistance is provided to any complainants who wish to file criminal or civil charges in cases of violence or sexual harassment.

• Investigations are cooperative, not adversarial. • In confirmed cases of forced labor or child

labor the Participating Grower is suspended. • In confirmed cases of sexual harassment with

physical contact or violence by supervisors, the perpetrator is terminated and banned from FFP employment. Failure to terminate such individuals results in suspension of the Participating Grower.

0 Child Labor Cases

1 Forced Labor Case,

Resulting in Prosecution and Suspension

9 Cases of sexual harassment

with physical contact. All offenders were terminated.

9 Supervisors banned from FFP farms

for physical violence or threats of physical violence

F o rc e d L a b o r • C h i l d L a b o r • Vi o l e n c e • S e x u a l A s s a u l t

1 1 2

2 2

Season 1: '11-'12 Season 2: '12-'13 Season 3: '13-'14 Season 4: '14-'15 Season 5: '15-'16 Season 6: '16-'17 N

um be

r o f C

om pl

ai nt

Severity of Valid Sexual Harassment Complaints

Sexual Harassment with physical contact Sexual Harassment

Season 1: '11-'12 Season 2: '12-'13 Season 3: '13-'14 Season 4: '14-'15 Season 5: '15-'16 Season 6: '16-'17

N um

be r o

f I nc

id en

Violence or Threats of Violence from Supervisors

48 49

Department of Justice U.S. Attorney’s Office Southern District of Florida FOR IMMEDIATE RELEASE Thursday, January 19, 2017

Two Mexican Nationals Sentenced to Prison for Participating in Forced Labor Scheme

Two Mexican nationals, who were working in the Homestead, Florida, area and elsewhere, were sentenced today to prison for their participation in a conspiracy to obtain and provide forced labor.

Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, and Mark Selby, Special Agent in Charge, U.S. Immigration and Customs Enforcement, Homeland Security Investigations (ICE-HSI), Miami Field Office, made the announcement.

Agustin Mendez-Vazquez, 44, and his son, Ever Mendez-Perez, 24, both originally of Mexico, pleaded guilty before U.S. District Judge Robert N. Scola Jr. in October 2016. Agustin Mendez-Vazquez pleaded guilty to one count of conspiracy to provide and obtain forced labor, in violation of Title 18, United States Code, Section 1594(b), and was sentenced to 72 months’ imprisonment. Ever Mendez-Perez pleaded guilty to one count conspiracy to encourage and induce illegal aliens to reside in the United States, in violation of Title 8, United States Code, Section 1324(a) (1)(A)(v)(I), and was sentenced to twelve months’ imprisonment. Agustin Mendez-Vazquez has also been ordered to pay restitution to the victims of his scheme.

“Forced labor equates to modern-day slavery and the United States Attorney’s Office, together with our federal, state, and local law enforcement partners stand ready to prosecute those individuals who facilitate these illegal practices,” said U.S. Attorney Ferrer. “Agustin Mendez-Vazquez and Ever Mendez-Perez’s convictions stand as a reminder to the public that the law enforcement community will not tolerate human trafficking - in any form. We urge anyone with information regarding human trafficking and forced labor practices to contact the police.”

"When individuals are forced and exploited for their labor, it erodes our society's belief in the freedoms afforded to us under the laws of our nation,” said Mark Selby, Special Agent in Charge of HSI Miami. “HSI will continue to investigate this type of illegal activity and ensure that those responsible are brought to justice." According to court records, Agustin Mendez-Vazquez, who worked as an unlicensed labor subcontractor on tomato farms in the Homestead area and elsewhere, utilized physical force, threats of physical force, threats of deportation, and debt bondage to maintain control over other migrant workers. Workers in Mendez-Vazquez’s control were beat- en if they did not work every day; were subjected to harassment and abuse; and were required to relinquish large portions of their paychecks – sometimes their entire paychecks – to Mendez-Vazquez. Ever Mendez-Perez, who worked with his father, assisted in maintaining and supervising the migrant workers.

The United States Attorney’s Office for the Southern District of Florida, in collaboration with ICE-HSI, leads the South Florida Human Trafficking Task Force, which works to increase public awareness, rescue victims, and prosecute traffickers. The task force is composed of not only federal, state, and local law enforcement agencies, but also includes non-law enforcement partners, such as service providers, victim advocates, faith-based organizations, academic representatives and community members.

The Fair Food Standards Council, a non-governmental organization that monitors and enforces the rights of migrant farmworkers in the Fair Food Program, referred this matter to law enforcement. Mr. Ferrer would like to thank the Fair Food Standards Council, as well the Coalition of Immokalee Workers, the International Rescue Committee, and VIDA Legal Assistance, Inc., for their assistance with this case.

Mr. Ferrer commended the investigative efforts of ICE-HSI. The case was prosecuted by Assistant U.S. Attorney Benjamin Widlanski.

Related court documents and information may be found on the website of the District Court for the Southern Dis- trict of Florida at www.flsd.uscourts.gov or on http://pacer.flsd.uscourts.gov.46

CIW's Anti-Slavery Program

Before the establishment of the Fair Food Program, the CIW's Anti-Slavery Campaign had spent years uncovering, investigating, and assisting in the pros- ecution of numerous farm slavery operations across the Southeastern U.S. Through their work, Coalition members helped to liberate over 1500 workers held against their will, and put over a dozen farm bosses in prison for sentences of up to 30 years.

The U.S. Department of State called the CIW a “pioneer” in the worker-centered and multi-sectoral approach to slavery prosecution, and hailed the CIW’s work on some of the earliest cases of slavery as the “spark” that ignited today’s national anti-slav- ery movement. Since those early cases, the CIW has continued to shape the national movement against slavery, playing a key role in the passage of the 2000 Trafficking Victims Protection Act, being ap- pointed by the Florida legislature to the Statewide Human Trafficking Task Force, and co-founding the national Freedom Network USA and the Freedom Network Training Institute (FNTI). Through the FNTI, the CIW trains state and federal law enforcement and non-governmental organizations throughout the U.S. on how to identify and assist people held against their will in slavery operations. CIW's exper- tise has been called upon by international organiza- tions ranging from representatives of law enforce- ment and the military of several countries, to the United Nations and the European Union.

The Fair Food Program represents the newest phase of the CIW’s anti-slavery efforts: Prevention.

Through the market consequences built into the FFP - including zero tolerance for forced labor - Participating Growers are encouraged to actively police their own operations. At the same time, the worker-to-worker education program at the heart of the FFP informs and empowers tens of thousands of workers to act as monitors who identify and expose slavery operations wherever they might be present. The Program's direct hire requirement also ensures that compensation goes directly to workers, thereby removing a major source of power held by contrac- tors who had traditionally been the perpetrators of forced labor.

Mendez Slavery Case (2016) During Season 5, the Program's risk prevention, detection, and corrective action procedures were put to the test by a case of forced labor that was uncovered by FFSC in February 2016. Each mechanism functioned exactly as intended.

First, many months before the actions that gave rise to this case, the perpetrator had been listed on FFSC’s website and publicized to all Partic- ipating Growers as ineligible for hire on FFP farms. Within three weeks of the perpetrator’s hire despite this ban, worker complainants and witnesses called the FFSC complaint hotline to report his violent conduct. A team of FFSC inves- tigators was immediately dispatched.

Within two weeks, FFSC had gathered sufficient evidence to call for a meeting with the U.S. Attorney’s office. Based on that evidence, and with FFSC and CIW’s ongoing assistance, within a month of the initial calls to FFSC’s complaint line, arrests were made and an indictment for charges related to forced labor was filed.

The perpetrator, who remained incarcerated, was sentenced to six years in January 2017, while victims have received legal assistance and coun- seling through VIDA Legal Assistance, as well as job referrals to safe situations at other FFP farms. The grower involved was suspended based on the FFP’s zero tolerance provisions for forced la- bor, and FFSC’s decision to suspend was affirmed by an arbitrator following appeal.

Photo: Shane Donglasan

50 51

Sexual Harassment & Discrimination In addition to zero-tolerance provisions against violence and sexual assault, Participating Growers must provide all employees with training on the prevention of sexual ha- rassment and discrimination, including sexually charged language and other conduct that contributes to a hostile environment. Supervisors and workers are informed of dis- ciplinary consequences for all forms of sexual harassment.

During Season 6, 100% of Participating Growers had im- plemented company-led trainings for workers and super- visors on the prevention of sexual harassment and discrim- ination based on gender, race, national origin, or sexual preference. Growers continue to work towards or main- tain best practices, including ensuring that all field-level supervisors understand their roles in responding to and preventing violations of these policies. During the 2016- 2017 season, FFSC received no worker reports of sexual harassment or discrimination at over 70% of FFP farms.

These measures have brought an end to impunity for dis- crimination and sexual harassment at Fair Food Program farms. Cases of sexual harassment by supervisors with any type of physical contact have been virtually eliminated, with only one such case found since 2013. Since the start of the FFP, 35 supervisors have been disciplined for sexu- al harassment as a result of complaint resolutions or cor- rective actions that addressed audit findings. 11 of those supervisors were terminated and banned at FFP farms. Season-by-season data on sexual harassment is displayed below. During Season 6, there was one valid case of sexu- al harassment with physical contact by a supervisor, which resulted in the supervisor’s immediate termination. Season 6 also saw five valid cases of sexual harassment without physical contact by a supervisor, each of which resulted in swift supervisor discipline, including three final warnings and two terminations.

Cases of discrimination have also been dealt with prompt- ly and effectively through the Program’s complaint mecha- nism. There has been an increase in the number of Haitian workers on FFP farms over the past two seasons, and FFSC has increased its native Creole-speaking staff accord-

ingly. This has allowed Program monitoring to respond promptly to issues facing these workers, including dis- crimination and lack of Creole-speaking grower staff who can adequately address their concerns. FFSC has resolved 40 cases of discrimination stemming from the conduct of 24 supervisors and 12 co-workers, as well as a number of company policies and practices. As a result, in addition to changes in company policies and practices – including gender-based work assignments - all supervisors were subject to disciplinary action, including five terminations, 10 final warnings and 11 verbal warnings. In cases involv- ing co-workers, resolutions included three terminations, three final warnings and nine verbal warnings.

As part of case resolutions and audit corrective actions, extensive crew-wide meetings and re-trainings on com- pany and FFP policies have also been held, to reinforce standards and ensure the prevention of sexual harassment and discriminatory conduct. Participating Growers’ super- visory staff have also largely accepted their responsibility to prevent hostile environments and to respond effective- ly to complaints of sexual harassment and discrimination. This has resulted in reports by the overwhelming majority of workers during FFSC audits of vastly improved work en- vironments.

Starting in 2014, the Fair Food Program became the host site for the development of an innovative curriculum on sexual harassment prevention, specifically designed to ad- dress abuses suffered by workers in agriculture. Collabo- rating with several stakeholders - including Pacific Tomato Growers, Futures Without Violence, and VIDA Legal As- sistance – FFSC developed the first culturally appropriate training curriculum for workers and supervisors in agricul- ture to address the impacts of sexual violence and sexual harassment in the workplace, as well as domestic violence that may be suffered by workers. This project created a powerful new tool for combatting gender-based violence and sexual harassment, and has helped set the national standard for addressing these abuses in the agricultural sector.

Compliance In Practice

November 2013 A male worker who observed that, at so many farms, women risk losing their jobs if they speak out against harassment or reject the advances of a supervisor. He remarked how different the envi- ronment is at FFP farms.

He added that, as a man, he believes that a more respectful work environment benefits him as well, and he is very relieved to work in a place where women are not treated poorly.

August 2017 A Haitian worker complained about a field super- visor who he believed was discriminating against Haitians. After FFSC worked with the Participat- ing Grower’s HR staff to resolve the complaint, the worker expressed his relief.

"Thank you for helping get this enormous weight off my chest. I feel like a tractor-trailer has been lifted off me. The work is difficult, but it is fine when we all get along. I was tired of going to work thinking 'what is going to happen today’?"

April 2016 A transgender worker spoke at length about the respect that she and others on her crew receive:

“Here, we respect others so that we also will receive respect. Although we are very diverse, we all treat each other with respect, without humiliation or yelling, and because of this our crew is a great place to work."November 2015

A female worker who had worked in the Florida to- mato industry for 10 years noted the drastic improve- ments brought to the fields, which had once been an abusive and uncomfortable work environment for women. The worker shared that she now only works at FFP farms, because the work environment is much better in general, but in particular with regard to the way in which women are treated.

“I was woken up when the FFP started because I’ve been working in this industry for many years, and now there are no more abuses for women -- especial- ly single women. Before the FFP, when single female workers would go the fields, men would bother them and ask if they had husbands and if they wanted to go out with them, but the women just wanted to work. We came to work, not to look for husbands."

Harvest Without Shame

• Workers are trained on how to make confidential complaints to supervisors, company staff, and FFSC.

• Field-level supervisors are regularly trained on their obligation to report sensitive complaints, as well as their responsibility to actively discourage sexual harassment and discrimination in the workplace.

• Participating Growers demonstrate the ability to effectively handle sexual harassment and discrimination complaints, including how to maintain confidentiality and perform an effective investigation.

• Supervisors found to have engaged in sexual harassment with physical contact are immediately terminated and banned from FFP farms.

• Supervisors terminated for less severe forms of harassment or discrimination are also banned from employment at FFP farms for shorter suspension periods.

Photo: Smriti Keshari

100% Growers have implemented trainings on

the prevention of sexual harassment and discrimination

35 Supervisors disciplined for

sexual harassment since Season 1

10 Supervisors terminated for

sexual harassment since Season 1

52 53

Compliance In Practice

Direct Hiring In much of US agriculture, growers typically pay farm labor contractors (crewleaders) who are the direct employers of farmworkers. This type of employment arrangement helps to insulate growers from legal liability for what takes place on farm property, while making it more difficult to detect and address abuses experienced by farmworkers - including forced labor, wage theft, unsafe working conditions, sexual violence, and unauthorized transportation in dangerous vehicles.

For this reason, one of the Code's fundamental provisions requires Qualifying Workers* to be hired and paid directly by Participating Growers. Ensuring that workers are employees of Participating Growers means that growers accept the important responsibility of guaranteeing proper compensation for all work, Workers Compensation coverage for work-related injuries and illnesses, and dignified working conditions for farmworkers who labor on their property.

The FFP additionally requires that all registration and training take place - and that all workers be issued a photo ID badge required for tracking attendance and hours - prior to starting work, helping reduce the risk

that workers could work under the control of labor contractors for several days and leave without company knowledge.

During Seasons 1 and 2, 100% of Participating Growers had implemented procedures to place their production and harvesting crews on company payroll. By the end of Season 3, 100% of Participating Growers adopted the unprecedented practice of including vine-ripe workers on company payroll. By the end of Season 4, nearly all growers had fully implemented standardized procedures to ensure that all Qualifying Workers, including vine-ripe workers, were registered and provided with ID and/or time cards before starting to work in the fields. In Season 6, 88% of FFP farms were fully compliant with all worker registration requirements. At only one farm did FFSC identify a systemic failure to register vine-ripe workers, and at only two farms did FFSC identify instances in which some workers were permitted to work prior to registering with the company. Each of these three growers was placed on probation at the end of Season 6.

* According to the Fair Food Code of Conduct: “Qualifying Workers are non-super visor y workers per forming the following tasks related to growing tomatoes for a Par ticipating Grower: har vesting, irrigation, planting, laying plastic, stak ing, tying and miscellaneous work of a simi- lar nature that does not involve the operation of vehicles or machiner y. Field walkers and dumpers are not Qualifying Workers.”

• Participating Growers directly hire all qualifying workers as employees, and ensure proper compensation and proper working conditions.

• Workers complete registration paperwork and receive company photo ID cards - necessary for attendance and timekeeping - before beginning work in the fields.

• Crewleaders and supervisors found to bring unregistered workers onto farm property are subject to immediate discipline. Termination is mandatory for a second offense.

• Findings of unregistered workers are grounds for probation, and, if unaddressed, for suspension from the Program.

0 Number of days a worker can be on farm property

before registration and training

88% Participating Growers fully compliant

with all worker registration requirements, including for high-risk vine-ripe crews

In the Florida tomato industry, a subset of tomato harvesting operations included “pinhooker” crews that harvest 5-10% of the tomatoes that ripen before or after the rest of the crop, and which are marketed as vine-ripe tomatoes. This highly informal, undercapitalized segment of the tomato industry had often operated on a foundation of unlicensed contractors, dangerous and illegal transportation practices, and cash payment arrangements. As a result, it was a sector of farm labor disproportionately responsible for abuses - including forced labor and wage theft.

Before the start of the 2013-2014 season, all Participating Growers were informed that they would be required to hire these workers

as company employees, and to treat them as Qualifying Workers.

Growers must also now ensure that vine- ripe crewleaders involved in recruitment and transportation have state and federal Farm Labor Contractor licenses, and utilize vehicles that are properly insured and inspected.

Within the span of a single season, 100% of Participating Growers adopted the practice of placing vine-ripe workers on company payroll. This signified a dramatic change for those who had borne the risks of working in this previously unmonitored sector. On FFP farms, they are now covered by Workers Compensation, and receive the same training and rights as all other Qualifying Workers.

Enforcement In Action

Photo: Smriti Keshari

54 55

Before the Fair Food Program, any worker whose production or conduct displeased a supervisor could be fired on the spot or simply not allowed to board the labor bus the next day, often amounting to arbitrary and summary dismissal. Under these circumstances, complaining about working conditions was virtually impossible.

In a dramatic change, Participating Growers have been required to adopt the concept of progressive or escalating discipline. Growers’ disciplinary policies must now include verbal and written warnings for most violations of company policy, with opportunities for re- training prior to termination. Terminations require the involvement of upper management, rather than being left to the discretion of crewleaders.

Supervisor training must now clarify that disciplinary measures are not to be imposed on workers for

exercising their rights to complain about working conditions, and that grower management must be involved in decisions to terminate workers. Supervisory employees at Participating Growers are also informed that supervisors are subject to escalating discipline for failure to implement FFP standards.

All Participating Growers (100%) have established progressive discipline policies, and actively train their employees on escalating discipline. During Season 6, all workers and supervisors at 88% of FFP farms demonstrated full awareness of these policies, and FFSC documented only one instance in which a worker was arbitrarily terminated by a crewleader. In that instance, as with any case in which a supervisor fails to properly implement the progressive disciplinary policy, the offending supervisor was subject to a disciplinary warning and the terminated worker was invited by the grower to return to work.

Progressive Discipline

Compliance In Practice • Workers are not normally terminated before

first being issued at least one verbal and one written warning.

• Crewleaders no longer have sole discretion to terminate workers’ employment.

• Supervisors are also subject to discipline, up to and including termination, for failure to comply with FFP and company policies.

100% Growers that have implemented

progressive disciplinary procedures

88% Participating Growers fully compliant with

progressive discipline standards

Compliance In Practice

During Season 4, H-2A guestworkers were contracted for work on a small number of FFP farms for the first time. During its audits, FFSC identified illegal fees and extortion on the part of some Mexico-based recruiters, impacting significant numbers of H-2A workers. Seeking to utilize the FFP’s systemic approach to eliminating and preventing abuses, the program’s Working Group authorized FFSC to vet possible solutions to the H-2A recruitment issue. To that end, based on suggestions from workers in the FFP whose relatives had been recruited to work on farms in Canada through the Mexican Secretary of Labor and Welfare’s National Employment Service (SNE) without having to pay illegal recruitment fees, FFSC engaged in a series of discussions, including during a fact- finding trip to Mexico, with the U.S. Embassy, SNE, the Project on Organizing, Development, Education and Research (PODER), the Economic, Social, and Cultural Rights Project (PRODESC), and the United Food and Commercial Workers International (UFCW).

Based upon the lack of reports concerning recruitment fees charged to H-2A workers who availed themselves of SNE's services, the FFP brokered now-mandatory agreements between SNE and Participating Growers that designate SNE as the sole recruitment channel for H-2A workers from Mexico into the Fair Food Program. This “clean channel” recruiting mechanism, incorporated in the FFP Code of Conduct and implemented as of January 2017, is intended to eliminate otherwise endemic illegal recruiting fees, as well as to protect workers against discrimination, retaliation and/or any other abuses in the H-2A recruitment or retention process. Like many other systemic solutions in the FFP, this pilot with SNE was worker-driven, from its inception to the creation of materials for Mexico-based worker education, and it will continue to be informed and improved by worker feedback.

To date, FFSC has noted increased worker confidence in the recruitment channel through SNE, matched by a drastic decline in reports of illegal recruitment fees, with none of the few reports received involving SNE personnel. As detailed below, any concerns raised by workers concerning their rights in the recruitment process, as well as their wages and working conditions

while on Fair Food Program farms, are addressed in a collaborative manner between the Participating Grower, FFSC, and SNE. Additionally, FFSC is working with SNE to ensure that, in areas with significant numbers of indigenous language speakers, such as Chiapas, where many H-2A workers are recruited, pre- departure education on their rights (including the issue of recruitment fees) is provided in the languages that workers understand best, in addition to Spanish.

During Season 6, three reports were received by a Participating Grower’s human resources staff of fees that were charged to workers by individuals representing themselves as official recruiters, as well as similar practices by returning H-2A workers or their family members. As a result, SNE carried out an investigation on the ground in the locations named in these reports. The principal perpetrator named in workers’ reports, who had no present or past connection to SNE, was identified and reported to the authorities, including the U.S. Embassy’s Anti-Fraud office. The returning workers identified as attempting to charge fees for information concerning available recruitment channels have been banned from eligibility for rehire by the Participating Grower and SNE. In addition to halting recruitment in the locations which generated these reports, SNE has engaged in an extensive public education campaign for present and potential H-2A workers on the free nature of its services and the fact that no worker should be charged for access to information or during any part of the recruitment process. The requirement that all recruitment must be carried out only by SNE staff - and that the use of any sub-contractors or “recommendations” from others is strictly prohibited - is emphasized. Information is also provided on how to make confidential complaints during the recruitment process with SNE, free of the fear of retaliation.

During Season 6, only one Grower used H-2A guestworkers. However, at least one additional grower will use guestworkers in Season 7 and national trends have demonstrated a swift increase in demand for and use of H-2A guestworkers over recent years. FFSC anticipates that a small number of additional FFP growers will begin using FFP’s required recruitment channel.

Guestworkers

• Growers are the direct employers of any H-2A guestworkers on FFP farms.

• SNE is the sole recruitment channel for H-2A workers on FFP farms. Growers do not use informal recruitment channels and networks – notorious for fraud and extortion – in their attempts to recruit Mexican guestworkers.

• Growers work in coordination with the Mexican National Employment Service (SNE) to recruit and interview farmworkers.

• In addition to ensuring that all FFP standards are adhered to for guestworkers, FFSC verifies

full compliance with federal law on guestworker working conditions and pay. This includes requirements for growers to pay for travel and meals, provide adequate housing, and pay guestworkers at the Adverse Effect Wage Rate (AEWR). The FFP has adopted strict provisions on retaliation to ensure that no guestworkers are arbitrarily sent back to their home country without a proper review of the circumstances leading to their termination. Findings of retaliation can result in a Participating Grower being barred from using H-2A workers.

Photo: Shane Donglasan

56 57

Compliance In Practice

Fair Food Premium

$26,000,000 Fair Food Premium

paid by Participating Buyers

Since 2011, historic change in farmworkers’ traditionally sub-standard pay has been achieved through Participating Buyers' payment of over $26 million in Fair Food Premium to improve workers’ wages.

The Fair Food Program Premium, known as the “penny per pound,” is paid by Participating Buyers on their Florida tomato purchases. It is designed to help reverse the downward pressure on farmworker wages exerted as a result of consolidated, high-volume purchasing. Workers receive the premium in their regular paychecks, as a clearly marked line item.

The specific rate of Fair Food Premium varies by tomato variety, and Participating Buyers’ payment mechanisms are built on existing financial channels and payment schedules within the fresh produce supply chain. Buyers do not issue payment directly to farmworkers, nor do funds pass through any entities - including CIW or FFSC - outside the buyers’ normal supply chains.

The Fair Food Standards Council carefully monitors the tomato purchases of Participating Buyers to ensure that Fair Food Premium is paid on all eligible purchases.

Specifically, this includes reconciling and testing monthly financial records (which include check and invoice numbers) submitted by Participating Buyers and Participating Growers, as well as conducting audits of growers’ payrolls to ensure that 87% of the Premium is promptly and accurately distributed to workers as a line-item bonus on their paycheck. Growers are permitted to retain the remaining 13% of the funds to offset increased payroll taxes and administrative costs.

100% of PGs now have systems in place to ensure that distributions are consistently made to QWs in a timely manner. Furthermore, FFSC receives reporting on distributions on or before the required deadlines. In Season 6 - due to FFSC's increasingly sophisticated analysis of PGs' payroll systems and codes - an issue was uncovered which resulted in negligible amounts of distributions to ineligible low-level field supervisors at 46% of FFP farms. Based upon corrective actions taken by FFSC, it is estimated that approximately $50,000 will be replenished to FFPP funds for distribution to QWs. After uncovering these issues, FFSC has worked together with the affected PGs to create and implement systems that fully adhere to the requirements of the Fair Food Program.

• Participating Buyers submit monthly reporting to FFSC, which ensures that Florida tomatoes are only purchased from Participating Growers, and that Fair Food Premium is paid on all FFP tomato purchases.

• Participating Growers submit monthly reporting to FFSC, which ensures that Fair Food Premium is properly distributed to Qualifying Workers as a separate line item on their paychecks.

• Supervisory employees are properly excluded from Fair Food Premium distributions.

“The Bonus is really helping us and our families.”

February 2014 In an article published in the Ft. Myers News-Press, CIW member Wilson Perez described the Premium’s impact in his life. “Now, when there’s work in the fields, Perez says his extra $60- $80 a week goes for food for his wife and 8-month-old son, his $1,000 monthly rent and, most importantly, to send to his little brothers and sisters in Guatemala for their schooling.”47

November 2013 One worker, when informed about the source of the Fair Food Premium and Participating Buyers’ role in enforcement of the Code, told auditors that he was excited to learn that some of the very same restaurants he eats at from time to time are also supporting the workers that harvest their produce.

Photo: Shane Donglasan

58 59

Compliance In Practice

Wages & Hours Although federal law requires that farmworkers' compensable hours – starting at the time they are required to arrive to farm property - be recorded to ensure minimum wage compliance, the fraudulent manipulation of handwritten timekeeping records used to track workers’ hours has long been a source of minimum wage violations in U.S. agriculture.

The Fair Food Program transformed these practices by mandating timekeeping systems that confirm whether farmworkers - who often work piece rate for their production - are paid at least minimum wage during the time they are required to be at work. Under the Code, and as enforced by FFSC monitoring, workers must be clocked in from the time they are required to arrive to farm property to the time that they depart. Participating Growers must use timekeeping systems that generate precise, verifiable records of how long workers are on farm property and workers must be in control of their own timecards when clocking in and out to ensure that all hours are recorded properly.

Failure to comply with these fundamental timekeeping requirements has been grounds for probation and suspension from the Program. 100% of all Participating Growers now use timekeeping systems as required by the Code. 100% of growers also consistently generate payroll from required timekeeping records, as opposed to crewleaders’ handwritten records. During Season 6, on 33% of FFP farms, FFSC found isolated instances in which small numbers of workers were not clocked in for work on one or two workdays. In each case, FFSC confirmed that these workers were properly registered and compensated.

During Season 6, workers at 75% percent of FFP farms reported zero issues, and 90% reported no systemic issues, of wait time off the clock or other failure to properly record compensable hours. At the remaining

farms, the majority of problems identified by FFSC were isolated instances resulting from the failure of one or two supervisors to follow timekeeping rules. Only two FFP farms were found to have systemic issues of unrecorded compensable hours. As a result, both growers were placed on probation.

Enforcement of these Code provisions protecting against uncompensated wait time has had a dramatic impact on workers’ quality of life. Participating Growers soon changed their practice of transporting workers to the field hours before work normally begins. Due to FFP enforcement of legal requirements, farmworkers' time is no longer expendable. Therefore, many growers re- calibrated their practices so that arrival times more closely approximate the time at which work will actually start. This allows mothers and fathers to let their children get a full night’s sleep and even take them to school, instead of rousing them before dawn to be left with a neighbor, often for a daily fee, because parents had to board a pre-dawn bus to the fields.

The Program has also required that Participating Growers develop systems to guard against other wage-related abuses that farmworkers commonly experience, including paychecks stolen by supervisors, incomplete paychecks lacking the information needed for workers to verify that they were paid in full, excessive or illegal deductions, and difficulties retrieving final paychecks after workers migrate at the end of a harvest season.

Together, the practices set in place by Program requirements have helped workers ensure that they are consistently and properly paid for their labor. Through FFSC audit findings and complaint resolutions, the Program has helped workers recover over $250,000 in lost wages.

$251,178 Recovered Wages

100% Participating Growers use Code-required

timekeeping systems to generate worker payroll

30 Number of minutes it takes to walk a

child to school in Immokalee

0 Number of minutes a farmworker should

be working off-the-clock

“For 24-year-old Immokalee single mom Mely Perez [...] the extra cash to feed her two young sons is helpful, but what really feels historic to her is being able to make them breakfast in the morning before walking them to school from her tiny house...

In the days before the agreement, she’d slip out in the pre-dawn dark while the boys were sleeping to catch a bus for the fields, leaving them with a friend until she returned that night, aching and exhausted.

The FFP prohibits the longtime practice of hauling workers to the fields early, then making them wait to work until the dew dries. Now that unpaid time is a thing of the past, the Mexican-born Perez can spend her extra hours with her little boys.”21

Ft. Myers News Press on February 16, 2014

• Qualifying Workers are consistently clocked in upon arrival to a grower's property and clocked out only when ready to depart the grower's property.

• Workers control their own timecards. • Electronic timekeeping systems - as opposed to

supervisors’ handwritten logs - are used to track workers' hours and generate payroll.

• Workers’ paychecks are never given to crewleaders or other supervisors.

• Workers sign for and receive their own paychecks, or authorize a co-worker to do so in their absence.

• Payroll departments track and retain unclaimed paychecks.

• Growers have procedures to allow workers to forward their final paychecks by mail.

• Paystubs include workers' hours and earnings, and reflect no improper deductions.

Time for Dignity

Photos: Forest Woodward

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Compliance In Practice

Bucket-Filling Standard

• Supervisors and workers are effectively trained on the visual bucket-filling standard.

• Workers understand that they should not overfill or underfill buckets.

• Farm supervisors take an active role in enforcing the Code’s visual bucket-filling standard.

• Dumpers and crewleaders are subject to disciplinary procedures if they demand overfilled buckets.

10% Wage Increase from

FFP Bucket-Filling Standard

92% Participating Growers fully compliant

with the Bucket-Filling Standard

In addition to the Fair Food Premium, the Program has achieved further wage increases through the elimination of “cupping,” or the "topping off" of picking buckets. Cupping refers to the traditional practice of requiring workers to overfill their 32-pound buckets by heaping additional pounds of tomatoes on top.

Before the FFP was implemented in 2011, workers were not compensated for those extra pounds of tomatoes in each bucket. Therefore, for every eight to ten buckets picked and cupped, workers were actually harvesting - but not being paid for - an eleventh bucket. Before the FFP this practice was enforced by supervisor violence, withholding pay for un-cupped buckets and/or firing workers who refused to comply.

For many workers, the new visual bucket-filling standard has meant an additional wage increase of up to 10%.

During the first two seasons, the Program saw significant resistance on the part of crewleaders to enforcing the new standard, and failure to consistently enforce this requirement was a source of many worker complaints. However, between Seasons 3 and 6, the Program achieved the near elimination of this once common practice, as well as its accompanying violence and wage theft. Cupping is now an infrequent request by supervisors who know that giving such instructions will subject them to disciplinary action.

100% of all Participating Growers have effectively trained supervisors and workers on the Code’s bucket- filling standard. During Season 6, 92% of Participating Growers had fully implemented the visual bucket-filling standard. At the remaining farms, FFSC identified only isolated cases of cupping demands on one or two harvest crews.

“Not only on my crew, but on all crews, I hear that workers refuse to overfill their buckets...

The people know it is long gone - that it is history.” -FFP Crewleader (April 2015)

Overfilled Bucket New Standard

Photo: Shane Donglasan

Photo of the FFP visual bucket-filling standard training materials, produced by a Participating Grower and placed on the side of a tomato harvesting bin at a Fair Food Program farm.

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Compliance In Practice

The Fair Food Program is also improving worker health and safety on the job. Under the Code, growers must assist workers in the formation of Health and Safety Committees at their farms.

Under the Code, Health and Safety Committees consisting of at least five members, with a representative from each crew, are required to meet monthly. These committees provide a channel of communication between the field- level workforce and management, enabling workers to convey a broad range of health and safety concerns, from heat exhaustion and other dangerous conditions - including lack of proper sanitation - to sexual harassment. Committee members should be identified to all workers on their crews, and adequate notice of meetings provided so that other workers can provide input or attend. Feedback must provided to all crews, concerning topics

discussed and resolutions reached.

During Season 6, 42% of growers had Health and Safety Committees that were in full compliance with the Code, including convening monthly meetings with workers representing each crew and agendas that encourage workers to share their concerns with management, as well as mechanisms to inform other workers of resolutions implemented. Another 46% of Participating Growers have established Health and Safety Committees, and are working toward full compliance with Code requirements. Only 8% of Participating Growers did not have Health and Safety Committees on their farms during Season 6.

At the most compliant farms, during harvest, committee attendance is incentivized by compensating committee members at an hourly rate that exceeds minimum wage.

Health & Safety Committees

• Health and Safety Committees meet monthly and include a minimum of five qualifying workers total, and at least one worker from each crew.

• Growers keep meeting minutes and address any concerns raised during meetings.

• Meeting resolutions are effectively communicated to all workers.

• Committee members are compensated for time invested in meetings.

Heat injury and illness is a leading cause of work-related death for farmworkers in the U.S., a rate nearly 20 times greater than for non-farmworkers.48

The heat index in Florida regularly reaches the upper 90’s during the growing season and easily exceeds 100 along the East Coast during summer months, as workers repeatedly bend over, fill a bucket with at least 32 pounds of tomatoes, haul and throw it up to a dumper on a flatbed truck, and then race back to start the cycle anew.

The provision of a safe and accessible shaded area, access to drinking water, and the ability to take breaks are thus critical to workers’ health and wellbeing.

The Code requires provision of shade for workers in the fields at all times and locations that field work is performed. Workers must also consistently be provided

with access to clean drinking water and clean bathrooms, and be allowed to take breaks as needed throughout the workday.

100% of Participating Growers have purchased and distributed shade structures to their crews, and FFSC has observed steady increases in the quality of shade units at many growers’ operations, including custom designs built to withstand field conditions.

During Season 6, 75% of Participating Growers were in full compliance with shade and bathroom requirements, with FFSC receiving zero reports of issues with accessibility or cleanliness. At the remaining operations, FFSC auditors identified limited issues with shade and bathroom accessibility for one or two crews, such as shade structures not being moved promptly as workers progress through the fields.

Shade in the Fields

Compliance In Practice • Durable, mobile shade structures, able to

accommodate multiple workers at a time, are provided and made easily accessible to workers. Structures often include a bench for workers to rest and eat.

• Supervisors ensure that shade, bathrooms, and water are consistently accessible to workers throughout the workday.

• Workers take rest breaks as needed, in order to prevent heat stroke and dehydration.

117 °F Heat Index recorded by FFSC in Virginia

75% Participating Growers fully compliant with shade

and bathroom requirements

Photo: Shane Donglasan

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Appendix A: Selected Coverage

Lessons for Hollywood's women from tomato pickers in Florida49 November 30, 2017 By Deepa Fernandes

Her workplace was not a safe place, and despite being a teenager, Isabela knew this for certain. It didn’t feel OK that her bosses touched her, said sexual things and propositioned her constantly. But she saw it happen to other women, too. Even changing jobs didn’t help. New bosses in new work sites did the same awful things, she said.

Isabela, who didn't want her full name used due to privacy concerns, has been a tomato picker in Florida's produce fields since the mid-'90s, when she was 15 years old and left Mexico with some friends in search of a better life. She didn’t know then that what she was experiencing has a name — sexual harassment — and that when it happens in the workplace, it is illegal. But Isabela got to a point where she had had enough. And what she and other women farmworkers did might serve as a lesson for women in workplaces nationwide.

Long before the #MeToo campaign, women working the nation’s agriculture farms have been re- porting that the fields were not a safe or dignified place for them — rife with sexual harassment and abuse incidents. But now, Florida’s tomato pickers say they’ve ended the problem in their workplace. It’s a big claim, and it may still happen on odd occasions, but the tomato pickers there report that the culture of rampant abuse is no longer.

So, what did they do to stamp it out?

Isabela's own experience of trying to stop her bosses is an important part of the story.

Isabela realized that many women were targeted, and she began to feel it was just how the fields were. The women's work out there was supervised by men, who probably some years before had been pickers just like them. But the men had risen in the ranks. These men also were in charge of transporting the pickers from a central location in town to the fields. Called troqueros, these employ- ees were the ones with the power to decide who worked the fields on any given day. Isabela said after about 10 years as a picker, this one particular troquero fixated on her and her friend.

“It wasn’t easy. He would get in the truck and touch us, and we would say 'no.' And then one day he called me and told me to come to him because he had something to show me. He was the boss, the one who gave us the work, so I went and he was showing [me] some accounts and I didn’t under- stand why he was showing it to me, right? Then he says that he likes me a lot and wants to have a relationship with me. I told him "no," that I wasn’t looking for a relationship right now, that all I want- ed to do was work and not have any problems, especially because he is a married man. He told me I wouldn’t have any problems, that he would take care of everything; he’d pay my rent. I told him all I want to do is work. Then, he grabbed my hand and pulled me to him to touch him. I yanked back my hand. I felt bad. Sad. I wondered, 'Why is this happening? All I need to do is work.'”

After she refused his advances, he told her she no longer worked there. Now she was unemployed.

A friend told her about an organization, the Coalition of Immokalee Workers, suggesting they might help her get her job back. It was a long struggle but CIW finally got justice for Isabela.

Yet, no one seemed pleased, not even Isabela. It didn’t stop the abuse that was so widespread.

Lupe Gonzalo, also a tomato picker for years in the Immokalee fields and now an organizer with CIW, says they had a big battle on their hands. “Many times, it was the crew leaders who did the harass- ment,” she said. Crew leaders are kind of like floor managers. They supervise and have the power to hire and fire. Their bosses, the executives of the large farms, at best, might have been ignorant to the abuses going on in their fields and at worst, just closed their eyes to it.

The problem was endemic across all the fields, Gonzalo said. So, Gonzalo and others at CIW began to identify ways to try and end the abuse. “It’s that women don’t know they have rights enshrined by law, that here sexual harassment is something punishable by law,” she said. “Women didn’t know this.”

So, women pickers at CIW decided to make stamping out sexual abuse a major part of the campaign they were fighting for with other things such as better wages and work conditions. And this is when things really began to change.

Stamping out sexual harassment

On a recent Sunday evening in early November, the town of Immokalee was mostly shut down. Except for the laughter and marimba tinkering that came out of the Coalition of Immokalee Workers building: It was the weekly meeting of CIW’s women’s group. The Harvey Weinstein scandal had the women talking. The essence of the conversation was this: How is it these women with so much more money and status than them are still experiencing this harass- ment when these tomato pickers who earn minimum wage in backbreaking work have stamped it out?

“See, it’s a problem we have eliminated, now women speak out,” Gonzalo said. “When a woman feels safe to speak about the problems, the abuse can be stamped out because now the crew leaders and the abusers know there are consequences." Multiple female farmworkers in Immokalee said without question that in the past, sexual abuse was a constant problem, but now they no longer experience it.

According to Susan Marquis, dean of the Pardee RAND Graduate School, women realized there had to be consequences for abusive behavior. “Real-world sanctions,” Marquis said, was one key part. The consequences for behavior that crosses the line, Marquis said, also had to be swift and visible to all. So, the Coalition of Immokalee Workers fought to have a safe complaint system written into their la- bor agreement — the Fair Food Program. In addition to better pay and improved working conditions, workers insisted on a way to address sexual harassment. And they added a small but hugely signifi- cant detail: an independent body to be the arbiter, Marquis said. “Most violations take two or three days to investigate,” she said. “But it’s responding quickly, investi- gating thoroughly and then having real-world consequences. In the case of the farmworkers, it’s the growers losing market share.” Marquis has studied the CIW model extensively; she has a book on the subject coming out in December called, "I Am Not a Tractor! How Florida Farmworkers Took on the Fast Food Giants and Won."

Marquis said the labor agreement signed by the Coalition of Immokalee Workers in 2011 — the Fair Food Program — brought large tomato farms on board with the new workplace standards. One way they did this was to simultaneously convince the biggest purchasers in the country — think McDon- ald's, Walmart, Whole Foods — to only buy produce from fields that were part of the Fair Food Pro- gram, which basically meant the tomatoes they would sell or cook came from fields where workers

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are treated justly. If a farm owner doesn’t take action against sexually abusive supervisors, there is an instant consequence — they won’t be in the Fair Food Program, and they cannot sell to the large tomato buyers. Their market disappears.

Jon Esformes is the co-CEO of one of Florida’s largest growers, Sunripe Certified Brands. He says this bottom-line incentive helps CEOs make sure their managers don’t abuse their power, but he insists, it’s also just the right thing to do.

“I’m not doing anything extra for our folks,” Esformes said. “I’m doing what I’m supposed to be doing in accordance with the law and our own company ethics and morality.”

Esformes employs thousands of immigrants to work in his fields, and with the Fair Food Program, this means his company pays a living wage, provides better working conditions like good bathrooms and shaded areas for break time. And they use hours when the workers are on the clock to do the manda- tory sexual harassment trainings.

“We don’t use the words, ‘It’s no longer acceptable behavior,’” Esformes said. “We don’t talk about it in those terms, we talk about in terms of criminal behavior that will not be tolerated. And we will go after you.”

The Fair Food Program covers about 35,000 workers in the tomato fields in Florida. It's not nationwide — yet — nor does it extend to other crops. Lupe Gonzalo says the Coalition of Immokalee Workers is trying to change that. And while they work on that, she thinks that some of Hollywood’s women, or even women in the public radio world, should take a page from the book of Florida’s tomato pickers.

“Just look at what we, women who have basically no opportunities, right, look at how we built this program. I think working together is the only way to change all these things that are happening,” Gonzalo said.

Excerpted from "Audacious Philanthropy" by Susan Wolf Ditkoff and Abe Grindle in the September-October 2017 issue of the Harvard Business Review.50

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In the past two decades, America has begun to change its relationship to food, a massive cultural shift mostly focused on ingredients, health and nutrition, and—to some degree— farming practices. For now, labor considerations still seem not to be as front-of-mind for most people as things like local sourcing and avoiding trans fats. Do you think that’s about to change?

I do think that aspect of what we could call a truly sustainable agricultural system is lagging a bit behind, that it’s been lapped by food safety, or the use of pesticides, or organic versus convention- al, or other sustainability concerns. Those things led the parade because people tend to act based on self-interest. But I also think [labor] is catching up.

The fact is that no one really wants to be part of gross exploitation of other human beings. And they will think differently about their purchasing decisions if they are informed about the condi- tions that the workers who picked their food are facing in the field.

I’ll give you an example. A lot of times when I talk to people, I ask audiences to do a thought exper- iment. I’ll say: Imagine you’re driving down a country road on a beautiful summer day, and there’s a farm field on either side. You come across this perfect, idyllic farm stand selling fruits and veg- etables by the side of the road. You love that kind of stuff—I love that kind of stuff. So you pull in, you get out in that gravel parking lot, and you see this array of the most colorful, freshest fruits and vegetables you can imagine. You fill your bag, and you go to the cash register. And when you get there—you know, that cashier’s friendly, smiling, ringing up your stuff. But suddenly, before you get a chance to pay for it, you hear a scream from the field that’s behind the stand.

When you look over the cashier’s shoulder, you see a woman being sexually assaulted in the field. And then you realize, as you start to look around, that there’s another worker on his knees getting beaten by his supervisor. Now, how would that make you react as the cashier rings you up and says, “That’s $18.75?” Are you just going to go ahead and pay that money? Or would you stop, de- mand to know what’s going on, and try to help the people getting beaten and assaulted?

When I ask audiences this question, invariably 100 percent of the people in the room raise their hand to say: ‘Yes, I would not buy that food, I don’t want to buy that food, and I’d do what I could to fix it.’ But the fact is, those things happen on American farms—especially on the larger convention- al farms—every day in this country, and that’s been the reality for generations. Sexual harassment and sexual assault are daily occurrences in the fields. Violence against workers is by no means unheard of. Wage theft and a whole range of abuses happen. And because it happens outside of our vision—because we’re not standing their looking over the cashier’s shoulder—and therefore it happens outside of our mind. But that’s changing.

Because this is the 21st century, because there is this democratization of information, we’re able to communicate the fact that those conditions all occur all too often—that 80 percent of women in the fields report experiencing sexual harassment and sexual assault on the job. But the ability to communicate is not going away. And as the years progress, consumers will be more and more informed. If that thought experiment is any indication, it’s going to be a major factor in how people decide to buy their food in the future.

A food activist just won a MacArthur “genius” award. Why that’s a big deal.51

By Joe Fassler. October 12, 2017

In 2008, the John D. and Catherine T. MacArthur Foundation awarded one of its prestigious fellow- ships—the so-called “genius” grant—to urban farmer Will Allen. The award, more commonly given to artists, public intellectuals, and scientific researchers, was big news, and a rare honor in the food world. It also turned out to be prophetic. In the years that followed, issues surrounding regional food systems, food access, and food insecurity—the challenges Allen addressed at his Milwaukee farm and educational center, Growing Power—went mainstream.

This week, when the MacArthur Foundation awarded its 24 fellows for 2017, the list included the first non-academic working on food system issues since Allen. It may be a sign of which food-relat- ed topic will go mainstream over the next ten years: labor standards in the supply chain.

In 1993, Greg Asbed co-founded the Coalition for Immokalee Workers (CIW), a workers’ rights or- ganization that helped end systemic abuses—including human slavery—in Florida’s tomato fields. Over the years, he helped develop CIW’s standards into a broader framework called the Fair Food Program (FFP), signed on to by some of the biggest retailers and fast food chains in the world.

More recently, Asbed worked to codify those standards into the Worker-Driven Responsibility Network (WSR), a model that helps weed out human rights violations across the supply chain. It works on what he calls the “two pillars” of worker participation and market-based enforcement. The program collaborates with workers to draft industry-specific standards, mandates a 24-hour complaint mechanism for employees, requires rigorous audits, and has corporate buyers sign binding legal agreements that require them to purchase only from suppliers who are in compli- ance with human rights.

As the MacArthur Foundation put it in its citation: “WSR is a bottom-up approach that ensures hu- man rights are respected in the workplace; workers play a central role in establishing work condi- tion standards and codes of conduct and have transparent channels for monitoring and enforcing those standards.”

Asbed and I spoke about the program’s approach, its success, and why he thinks food labor issues are finally ready to go mainstream.

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What’s stopped labor from being a more mainstream food issue than it is?

It’s really just a question of awareness. But the awareness around labor conditions is growing. When we started the Campaign for Fair Food, we analyzed that the poverty of farmworkers in Immokalee, Florida, wasn’t driven so much by local actors—the growers and crew leaders. It was driven, more than anything else, by the multibillion dollar retail food companies that could lever- age their volume purchasing power to demand ever lower prices at the farm gate. It was this that drove down wages for farm workers, and conditions for farm workers.

Once we made that analysis, we had to go out and explain that to people. We went to campus after campus and church after church to build that awareness. And as a result, we were able to build a campaign that had 14 of the biggest retail food corporations—the biggest buyers of tomatoes in the world—[committing] to only purchase tomatoes through growers who work in compliance with a human-rights based code of conduct.

With those corporate agreements, we’ve been able to dramatically change people’s lives. We’ve put a stop to sexual harassment and sexual assault, for example, in the fields where the fair food program works. And there’s a formula. It requires, first, educating consumers. Then, mobilizing those consumers to pressure corporations, in order to win the binding legal agreement from com- panies—ones that demand that their suppliers meet human rights standards. Finally, it requires monitoring those standards with worker participation to actually eliminate long-standing human rights abuses in the field. It works, and we can replicate it. But it takes a lot of effort because it’s not the first story at the top of news, and you you have to fight to make it so.

It sounds like you’re saying conscientious consumerism—vote with your fork—is not enough to drive meaningful change on this front. It requires buy-in from major food retail- ers themselves. What are the challenges of getting companies on board?

We now have a proven program that protects human rights in corporate supply chains better than anything else that’s come before. That’s just not me saying it. Anyone who works in the field will say that: from the White House, which gave us the Presidential Medal for unique success in fighting forced labor, to the United Nations, which has recognized us for unique success in fighting human rights violations. So now that it’s not just an idea but a reality that’s been proven, you’d think com- panies like Wendy’s would simply say: ‘Let’s do this. Let’s be part of this.’ But they don’t.

If you took any one of those humans in that corporation and put them out in that position in the theoretical farmstand I mentioned, they would not buy the food. I guarantee you that. But even though corporations are just humans working together, something happens when they come to- gether in that form: The collective tolerance for abuse shoots through the roof.

What we have to do, unfortunately, is overcome that collective willingness to turn a blind eye. We have to do that not only by the power of just not buying their food, but by actively getting out there and saying: ‘Your brand doesn’t get behind human rights, and we’re going to make sure that the world knows it.’ That is what has worked.

We would prefer—infinitely prefer—to be involved in building our program, expanding its protec- tions, and doing the work of monitoring and enforcing rights rather than being in the streets and protesting. All that time for us feels like lost time. Sunk time. But unfortunately it’s still necessary,

and we’re going to still do it because we’ve seen the results—which are tremendous. Are there examples you can think of where the industry made the kind of broad-scale changes you’re hoping for?

Here’s a category where there are very, very few issues and compliance is almost wall-to-wall: food safety. Food safety in agriculture has been a problem for a long time, but it got to a point where there were just too many food safety issues—E. coli outbreaks, for instance, where families were losing children. The costs became too high for the retailer to be involved with those sorts of problems in the supply chain. So what happened? Standards were established, and they were retailer-driven. Retailers were able to tell their suppliers: ‘If you don’t get food-safety certified, if you don’t comply with these standards, we’re not going to buy from you, because it’s just too much of a risk for our brand.’ And food safety standards were implemented across the board.

In the industry, they call it “the power of the purchasing order”—the power of the P.O., is the shorthand that buyers use. The major buyers know that their purchasing orders carry a lot of weight, and when they really want things to change—whether it’s what type of tomatoes or implementing food safety or, now, implementing human rights standards—they use the power of the P.O. to demand and direct that change.

You’ve received this major honor, but the work is far from finished. What are the challenges ahead?

The challenge is awareness. It’s building awareness about the conditions that exist. It’s completely unac- ceptable that, for instance, 80 percent of women report being subjected to sexual harassment or sexual assault in the fields. And yet, I guarantee you,that 99.9 percent of consumers still don’t know that. Our job is to make sure that people learn that fact, and that they’re then able to learn that fact in a way that helps translate their awareness into concrete change on the ground.

Corporate Social Responsibility—CSR, the model that has existed for 30 years—has failed. If it were a sci- ence experiment, they would have shut it down a long time ago. It has not had any kind of real result for humans; the main result it’s had has been to be a firewall for public relations crises when problems erupt in corporate supply chains. But the power of the CSR model to keep corporations from feeling the heat is eroding as well. They feel it when a factory collapses in Bangladesh, or there’s a slavery operation discov- ered in seafood, or more recently, the discovery that North Korean workers in China are being treated in horrific conditions producing goods that show up under major brands here in the United States.

The old model has failed to protect workers rights. It’s failed even to protect the public relations interests of corporations. But this model works, and the results have been beyond our wildest expectations. That means it’s time to do away with the snake-oil charlatan approach that CSR has proven to be, and replace it with something that actually works.

In the 20th century, it was sort of like that old saying about Vegas: what happened in the supply chain stayed in the supply chain. Nobody connected it to the brands where the food ended up being sold. But that’s not the case anymore. Now, there’s a direct connection between major consumer brands and things like slavery and violence against women. The most important asset corporations have is their brand, and if protecting that asset requires them to use their buying power to demand compliance with human rights in their supply chain, then that’s what they’ll do.

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Brendan O’Neill, an organizer with Migrant Justice, praised the company.

“By signing this agreement, Ben & Jerry’s is prioritizing dairy workers as the most important ingredient in their ice cream,” Mr. O’Neill said.

Ben & Jerry’s has been owned by the consumer goods giant Unilever since 2000, but it has retained its found- ers’ interest in social and environmental activism. The company said it had long had labor standards in place for its suppliers and that the most egregious abuses of workers did not occur on its suppliers’ farms. But it acknowledged that enforcing the standards had been challenging.

“We don’t see a huge gap in hard-core standards,” Mr. Solheim said, “but we see an opportunity to make it work better.”

Migrant Justice began its campaign to improve conditions for immigrant farm workers in Vermont several years ago, not long after a worker died after getting tangled in a piece of machinery and being strangled by his own clothes.

The group’s efforts got a lift in June 2015, when Ben & Jerry’s formally agreed in principle to support the Milk With Dignity program. But negotiating the details of the agreement, which affects nearly 90 farms that typical- ly employ up to 10 workers apiece, proved to be complicated.

“These are real family businesses,” Mr. Solheim said, describing what he saw as a big distinction between the agricultural industries in Vermont and Florida. “It’s a different dynamic than what we have in a big produce area, where hundreds of people show up to harvest.”

Migrant Justice took several actions, including protests and marches, to put pressure on Ben & Jerry’s over the past two years, and the group had scheduled a national day of action for Thursday. (Ben & Jerry’s said it under- stood the group’s tactics but noted that it had never stopped negotiating.)

The program will be adopted in stages, with some standards, like prohibitions on sexual assault, forced labor and violence toward workers, taking effect immediately. Others, like raising pay to the minimum wage, will come more gradually. Farms must first go through an orientation, and workers must complete education ses- sions before Ben & Jerry’s begins making the larger payments that will finance some of the benefits.

Some experts, while crediting the Fair Food Program’s achievements, have said they were skeptical about whether the model could be extended to a substantial portion of the country’s farm workers, many of whom experience some of the worst conditions and lowest pay in the American work force. (Estimates for how many farm workers there are in the country run from under one million to a few million. Such workers are not covered by the federal minimum wage law, or by similar laws in most states.)

Greg Asbed, a founder of the Coalition of Immokalee Workers, which pushed for the Florida program, said the agreement involving Ben & Jerry’s — and similar accords in other industries, like those geared toward improv- ing safety conditions for garment workers in Bangladesh — showed that the model could be applied widely.

The only necessary conditions, he said, were the buying power of major brands, which exert enormous lever- age over suppliers, and worker participation, to define the needed rights and to help ensure compliance.

Margaret Gray, an associate professor of political science at Adelphi University who has studied farm labor conditions, praised both the Fair Food Program and the Ben & Jerry’s arrangement. But she warned that one force that made such programs effective, the power of corporate giants, could make it hard to extend their reach.

“It’s the corporations who tend to be making the most money, doing so at the expense of the workers, and at the expense of a lot of farmers,” she said. They excel at “fostering division between the two.”

Ben & Jerry’s Strikes Deal to Improve Migrant Dairy Workers’ Conditions52

By NOAM SCHEIBER OCT. 3, 2017

For years, Ben & Jerry’s took steps to make sure that its ice cream did not contain artificial growth hormone. The company also has a self-imposed fee on its greenhouse gas emissions.

What Ben & Jerry’s did not have was a reliable way of ensuring that the dairy farms supplying it with milk were providing humane conditions for their workers, a major issue in an industry where many people work seven days a week for less than minimum wage.

On Tuesday, the ice cream maker, which is based in Vermont, took a big step toward changing that, signing an agreement with a farmworkers’ group that establishes labor standards for the company’s suppliers in the state, and creates an enforcement strategy that encourages workers to speak up about violations.

“We love to be part of innovation,” said Jostein Solheim, the company’s chief executive. “We believe in work- er-led movements, and in bringing in dairy and doing it in Vermont.”

The agreement borrows heavily from an arrangement called the Fair Food Program that was put in place in 2011 to address troubling conditions in Florida’s tomato industry.

In that instance, Subway, Walmart, Whole Foods and other companies committed to paying an extra 1 to 4 cents per pound of tomatoes and to buying only from participating suppliers. The suppliers, in turn, agreed to pay the legal minimum wage and to ensure workers’ rights and safety. The program has been widely credited with improving working conditions in an industry where human trafficking flourished until recently. It has expanded to other crops and other states on the East Coast.

The 1,200 to 1,500 workers in Vermont’s dairy industry have been laboring under their own grim circumstances.

A 2014 survey of about 170 dairy workers in the state by Migrant Justice, the farmworkers’ advocacy group that signed the agreement with Ben & Jerry’s, found that in addition to a scarcity of days off, workers had schedules that frequently kept them from sleeping more than a few hours at a time. Many of the migrants, who typically work year round for low wages and live on the farms that employ them, also had substandard housing.

“One of the biggest issues was housing conditions, the need for workers to be provided with basic amenities, like electricity, water, and housing that is free from pest infestations,” said Enrique Balcazar, a former dairy worker who has helped lead the organizing effort, speaking through a translator. The workers tend to be undocumented, making it difficult for them to speak out.

Under the program, called Milk With Dignity, workers at dairy farms that supply Ben & Jerry’s will have the right to one day off a week and will earn at least the state minimum wage, currently $10 an hour. Workers will also be guaranteed at least eight consecutive hours of rest between shifts and housing accommodations that include a bed and access to electricity and clean running water.

The agreement requires Ben & Jerry’s to acquire its milk from farms that adhere to the standards. It will be enforced in part by the affected workers, who will be informed of their rights and encouraged to report viola- tions to a 24-hour hotline.

Compliance will be monitored by a group led by a former staff lawyer at the Southern Poverty Law Center’s Im- migrant Justice Project, which will conduct audits. Ben & Jerry’s will effectively finance the benefits by paying an undisclosed premium on the milk it buys, based on volume.

74 75

Appendix B: By The Numbers Table 1. Grower Audits

Pilot 2009- 2011

Season One

2011- 2012

Season Two

2012- 2013†

Season Three 2013- 2014

Season Four 2014-2015

Season Five 2015-2016

Season Six 2016-2017

FFP TOTAL

Location Florida FL Exp. Total FL Exp. Total FL Exp. Total

Management Audits 5 31 25 26 35 8 43 25 5 30 21 3 24 184

Payroll and Fair Food Premium Audits§

10 29 31 38 32 8 40 29 4 33 21 3 24 205

Operations Audits ¨ 8 26 25 46 36 8 44 36 7 43 31 5 33 228

Worker Interviews 577 1158 2810 3026 3617 863 4480 3282 921 4203 2974 771 3745 19,999

Crewleader Interviews 28 63 95 114 102 19 121 125 33 158 99 11 110 689

Farm Locations Visited

13 37 45 43 48 8 56 56 7 63 50 6 56 NA

Company Housing Locations Visited

7 18 27 18 27 14 41 23 16 39 34 12 46 NA

Corrective Action Plans 5 30 29 23 24 8 33 32 4 26 21 3 24 169

Table 2. Grower Probations & Suspensions

Season One

2011- 2012

Season Two

2012- 2013†

Season Three 2013- 2014

Season Four

2014- 2015

Season Five 2015-2016

Season Six 2016-2017

FFP TOTAL

Grower Probations 0 5 4 4 6 5 24

Grower Suspensions 2 1 3 0 1 0 7

Table 3. Worker Complaints by Outcome

Season One

2011- 2012

Season Two

2012- 2013†

Season Three 2013- 2014

Season Four 2014-2015

Season Five 2015-2016

Season Six 2016-2017

TOTAL

Type FL Exp. Total FL Exp. Total FL Exp. Total

Valid, Code Violation Resolution Reached

40 85 101 187 19 206 72 25 97 66 14 80 608

No Violation of Code, Resolution Reached 12 26 64 102 29 131 81 34 115 100 17 117 465

No Violation of Code, or Non-Qualfying Worker, or Not Valid After Investigation

18 29 47 65 11 76 38 14 52 58 7 65 287

Information Only 1 11 13 13 6 19 27 6 33 19 4 23 100

Could Not Investigate 10 10 17 17 4 21 6 4 10 10 5 15 83

Under Investigation 0 0 0 0 0 0 0 0 0 0 0 0 0

Non-Participating Employer 26 36 30 57 14 71 25 18 43 - - 48 254

Total 107 197 271 441 83 524 249 101 350 254 47 349 1798

Table 4. Worker Complaints from Participating Growers (By Source)

Season One

2011- 2012

Season Two

2012- 2013†

Season Three 2013- 2014

Season Four 2014-2015

Season Five 2015-2016

Season Six 2016-2017

TOTAL

Location FL Exp. Total FL Exp. Total FL Exp. Total

FFSC 57 96 147 261 40 301 140 51 191 179 26 205 997

CIW 25 63 82 91 14 105 57 22 79 47 8 32 410

Growers 2 4 8 30 7 37 17 11 28 24 8 32 111

Total 84 163 237 382 61 443 214 84 298 250 43 293 1518

76 77

Table 5. Code Violations Found in Complaint Investigations

Season One

2011- 2012

Season Two

2012- 2013†

Season Three 2013- 2014

Season Four 2014-2015

Season Five 2015-2016

Season Six 2016-2017

TOTAL

Type FL Exp. Total FL Exp. Total FL Exp. Total

1.1 Forced Labor 0 0 0 0 0 0 1 0 1 0 0 0 1

1.2 Child Labor 0 0 0 0 0 0 0 0 0 0 0 0 0

2.1 Violence or Threat of Violence 1 6 1 2 0 2 2 0 2 2 0 2 14

2.2 Weapons 0 1 0 0 0 0 1 0 1 0 0 0 2

2.3 Sexual Harassment 0 1 2 3 1 4 0 0 0 1 0 1 8

2.4 Retaliation 3 13 12 14 0 14 3 0 3 5 0 3 50

2.5 Wages & Hours 19 18 31 54 2 56 4 2 6 3 0 3 133

2.6 H-2A Recruitment Fees 0 0 0 1 1 2 1 0 1 0 0 0 3

2.6 Unregistered Workers 4 2 2 1 0 1 2 0 2 0 0 0 11

2.7 Sexual Harassment 2 2 5 12 0 12 5 1 6 7 0 7 34

2.8 Discrimination 2 4 2 15 2 17 11 3 14 7 2 9 48

2.9 Transparency & Cooperation 0 4 2 0 0 0 5 1 6 7 1 8 20

2.10 Lightning Exposure 0 2 0 2 0 2 1 0 1 0 1 1 6

2.10 Unsafe Driving Practices 0 0 5 1 2 3 0 2 2 1 1 2 12

2.10 Pesticide Exposure 0 2 0 2 0 2 2 0 2 2 0 2 8

2.10 Negligent Endangerment 1 5 1 1 1 2 2 1 3 1 0 1 13

3.0 Complaint Procedure 3 7 5 39 5 44 18 6 24 26 2 28 111

3.0 Disciplinary Procedure 3 9 8 15 2 17 10 4 14 5 1 6 57

3.0 Health & Safety 0 2 3 1 1 2 5 0 5 1 0 1 13

3.0 Housing 2 5 4 14 4 18 7 2 9 4 1 5 43

3.0 Injury & Illness Response 1 7 8 5 1 6 6 3 9 1 2 3 34

3.0 Pay Practices 4 11 30 51 1 52 14 3 17 8 1 9 123

3.1 Verbal Abuse 7 15 18 35 4 39 16 6 22 13 6 19 120

3.2 Child Labor 0 0 0 0 0 0 0 0 0 0 0 0 0

3.3 Wages & Hours 4 12 8 18 2 20 6 3 9 15 1 16 69

Table 5. (Continued)

Season One

2011- 2012

Season Two

2012- 2013†

Season Three 2013- 2014

Season Four 2014-2015

Season Five 2015-2016

Season Six 2016-2017

TOTAL

Type FL Exp. Total FL Exp. Total FL Exp. Total

3.4 Retaliation 3 5 5 4 0 4 1 0 1 3 0 3 21

3.4 Fair Food Premium 0 3 1 0 0 0 1 0 1 1 0 1 6

3.5 Failure to Implement Health and Safety Committee

0 0 0 0 0 0 1 0 1 0 0 0 1

3.6 Breaks, Days Off 3 4 9 8 2 10 3 0 3 2 1 3 32

3.6 Sanitation 1 4 14 8 0 8 4 2 6 5 2 7 40

3.6 Shade 1 0 2 0 0 0 1 0 1 0 0 0 4

Article 1 (Total) 0 0 0 0 0 0 1 0 1 0 0 0 1

Article 2 (Total) 32 60 63 108 9 117 39 10 49 36 5 41 362

Article 3 (Total) 32 84 115 198 22 220 93 29 122 84 17 101 674

Total 64 144 178 306 31 337 133 39 172 120 22 142 1037

Table 6. Worker-to-Worker Education

Pilot 2009- 2011

Season One

2011- 2012

Season Two

2012- 2013†

Season Three 2013- 2014

Season Four 2014-2015

Season Five 2015-2016

Season Six 2016-2017

FFP TOTAL

Location Florida FL Exp. Total FL Exp. Total FL Exp. Total

Education Sessions 30 73 88 89 99 18 117 93 30 123 113 27 140 660

Number of Growers 6 27 25 28 27 4 NA 24 4 NA 21 4 NA NA

Number of Farm Locations 12 40 42 48 45 7 52 45 11 56 42 15 57 NA

Workers Attended

No Data

6595 7702 7803 9851 1940 11,791 8465 1815 10,280 6335 1452 7787 51,958

Average Session Size - 90 87 88 100 108 NA 91 60 NA 56 54 - NA

78 79

Table 7. KYRR Booklets Distributed

Pilot 2009- 2011

Season One

2011- 2012

Season Two

2012- 2013†

Season Three 2013- 2014

Season Four

2014- 2015

Season Five

2015- 2016

Season Six

2016- 2017

FFP TOTAL

10,500 31,500 33,600 33,000 37,200 36,500 37,750 220,050

Introduction The Policies, Examples and Audit Requirements provided in this Code and Guidance Manual are designed to illustrate, clarify and make operative the Provisions of the Code and Guidance Manual. Additional guidance that has been developed periodically is found in Appendix G.

Like the Code Provisions and the Appendices, the Policies, Examples and Audit Requirements will be reviewed periodically and may be amended as circumstances suggest or require.

Participating Buyers (i.e., potential customers of Participating Growers in the Fair Food Program) will give purchase preference within the Participating Buyer’s supply chain to tomatoes that meet its specifications supplied by Participating Growers who can demonstrate socially responsible practices that meet or exceed the standards of the Fair Food Program as set forth here, although a Participating Buyer is not obligated to purchase tomatoes from every Participating Grower that meets or exceeds these standards. Part I: Employment Practices and Minimum Requirements

1 . Growers are required to abide by all applicable laws, codes and regulations, including but not limited to this Code, and any local, state or federal laws regarding wages and benefits, working hours, equal opportunity, and employee and product safety. Further, growers will follow these employment and workplace practices:

2 . Growers will participate in, and comply with, the “penny per pound” premium pass through Program (hereafter Fair Food Program) and pass through to their Qualifying Workers the appropriate premium payments received under that Program.

The term “appropriate premium payments” means the Qualifying Workers’ portion of the “penny per pound” paid by Buyer as part of the Program.

3 . If paying by the piece, Participating Growers will pay Qualifying Workers for all tomatoes picked, using a 32 pound bucket for calculation for round “gas green” tomatoes, or the appropriate standard weight and container for other types of tomatoes, if different.

4 . All compensable hours shall be recorded, and Participating Growers will keep accurate hours through a system (time clock punch, card swipe or other method) in which Qualifying Workers control their time cards or other time registration device used by the Participating Grower.

5 . Participating Growers will hire Qualifying Workers as employees.

6 . Participating Growers will pay wages and benefits directly to Qualifying Workers.

7 . Participating Growers, without cost to the Qualifying Workers, will provide Qualifying Workers with protective equipment adequate for its intended purpose, including shade to avoid danger from excessive heat, and provide training on company time on the use of such equipment.

8 . Participating Growers will take all necessary steps to avoid endangering the safety of Qualifying Workers including, but not limited to:

• Permitting individual Qualifying Workers who feel threatened or in danger for their health or safety to cease working (without pay) without

Overview The Fair Food Code has been shaped over time through detailed negotiation and ongoing dialogue among workers, growers and buyers. As the Fair Food Program matures and evolves, so too will the Code, as it contin- ues to serve as the primary platform upon which to build a truly sustainable agriculture industry.

Because the Fair Food Code establishes mostly broad principles, the Provisions of the Code that follow have been augmented by more detailed Policies, Examples and Audit Measures that together constitute a Guidance Manual to assist Participating Growers in implementing the Code. The Guidance Manual and its appendices is not at this time a public document.

Appendix C: Fair Food Code of Conduct

80 81

consequences or retaliation.Participating Growers will clearly and unequivocally educate Qualifying Workers that in the event a Qualifying Worker feels threatened or in danger for his or her health or safety, he or she has the right to cease working without consequences or retaliation; and

• Implementing a system for work safety stoppages due to lightning, heat, chemicals, pesticides or other factors for all Qualifying Workers present where the potential danger exists. Calling a work stoppage shall be at the discretion of the Participating Grower, but the reasonableness with which the Participating Grower exercises this discretion shall be subject to the Audit and Complaint Processes.

9 . Participating Growers will provide a safe and healthy working environment for their Qualifying Workers and, working with the Coalition of Immokalee Workers (CIW), develop and implement a Worker Health and Safety process through which Qualifying Workers are able to offer the Participating Grower their input and perspective on health and safety issues in a regular and structured manner.

1 0 . Participating Growers will develop and implement plans and procedures to insure the adequate and timely treatment of workers in the event of injury or sickness that might occur anywhere on a Participating Grower’s property.

1 1 . Participating Growers will develop and implement plans and procedures to insure that Qualifying Workers have sufficient breaks during the day, including adequate time for lunch, without unreasonably compromising the ability to earn wages.

1 2 . Participating Growers will provide opportunity for advancement, including the ability for Qualifying Workers to move from fields to other types of employment with the Participating Grower, including management positions, and will regularly communicate these opportunities to Qualifying Workers.

1 3 . If housing is provided by a Participating Grower, it must be voluntary and comply with the law, and the cost for such housing to the Qualifying Worker cannot reduce the Qualifying Worker’s net wages below the

minimum wage or be increased other than to reflect increases in the cost or quality of the housing.

1 4 . Participating Growers will verify and provide transparency to their practices, including the pass through of the appropriate FFP Premium payments, by permitting and fully cooperating with third party monitoring by the FFSC.

1 5 . Each Participating Grower will inform Qualifying Workers of their right to use the complaint resolution process operated by the FFSC, and may also establish a complaint resolution process of its own that is acceptable to the FFSC. Participating Growers will not attempt to impede in any way the investigation of a complaint by the FFSC on behalf of a Qualifying Worker, and will not engage in or permit retribution or retaliation of any kind against a Qualifying Worker for seeking to file or having filed a complaint.

1 6 . Participating Growers will implement a system acceptable to the CIW for informing and educating their Qualifying Workers, on the Participating Grower’s premises and on company time, of the Qualifying Workers’ rights under all applicable laws, codes and regulations, including this Code.

Part II: Violations

A: Types of Violations

Violations shall be divided into three categories – “Article I Violations,” “Article II Violations” and “Article III Violations.” Article I Violations result in automatic suspension of a Participating Grower from the FFP for the designated time period. Article II Violations require specified remedial action by the Participating Grower to avoid suspension from the FFP for the designated time period and/or may result in probation for the Participating Grower. Article III violations do not trigger specified remedial action, but the Corrective Action Plan approved to address Article III violations may include one or more of the remedies associated with Article II violations. Pursuant to the procedures in Appendices B and E, failure to comply with an approved Corrective Action Plan or Complaint Resolution for any category of violation will result in suspension of a Participating Grower from the FFP for the designated time period. A finding of a violation, whether contained in a Corrective Action Plan or a Complaint Resolution, may be appealed pursuant to the procedures set forth in Appendix F.

Article I Violations

1 . Use of forced labor of any kind.

2 . Systemic use of illegal child labor as defined by any applicable law.

Article II Violations

1 . Use or threat of physical violence against Qualifying Worker(s) by or at the direction of supervisor(s) of a Participating Grower, whether or not employed directly by the Participating Grower.

2 . Use or display of weapons of any kind (including firearms, knives, bats, etc.) at any point for the explicit or implicit purpose of intimidation.

3 . Sexual harassment that involves physical contact, unless the offending person(s) are fired and any other necessary corrective action is taken immediately upon confirmation of the incident.

4 . Firing or threatening to fire or otherwise prevent Qualifying Worker(s) from continuing to work for the Participating Grower for defending or asserting any protections under this Code, or encouraging, assisting or directing others to do so.

5 . Systemic failure to pay all wages earned, or to record all compensable hours of Qualifying Workers through a timekeeping system in which workers control their registration device, and/or to use the hours recorded by that system to calculate payroll for Qualifying Workers.

6 . Using Qualifying Workers in the field who are not treated as employees and placed on the company payroll of the Participating Grower on whose property they are working within the first pay period of work.

7 . Sexual discrimination or harassment not involving physical contact, as established by a finding of the FFSC.

8 . Racial, national origin, gender, religious or sexual preference discrimination or harassment, as established by a finding of the FFSC.

9 . Failing to cooperate fully and transparently with any monitoring, auditing or complaint resolution procedure established under this Code.

1 0 . Negligent endangerment, which shall include but not be limited to pesticide violations, the failure or negligent

use of equipment that harms or threatens Qualifying Worker(s), or lightning exposure in violation of the Code.

Article III Violations

Any violation of the Code that is not an Article I or Article II Violation is an Article III Violation. Without limitation, Article III Violations include:

1 . Non-systemic use of illegal child labor as defined by any applicable law.

2 . Non-systemic wage violations.

3 . Retaliation for defending or asserting any protections under this Code, or encouraging, assisting or directing others to do so, through act(s) other than those prohibited under Article II, Provision 4.

4 . Failure to comply with Appendix A.

5 . Failure to implement a Health and Safety Committee process in compliance with Appendix C.

6 . Failure to afford Qualifying Workers rest breaks, reasonable days off, access to shade structures, adequate drinking water, field toilets or other hygiene facilities required by the Code or any applicable laws or standards.

B: Remedying Violations

Corrective Action Plans

A Participating Grower shall address to the satisfaction of the FFSC every Code violation identified in the course of an audit through an approved Corrective Action Plan and/or Complaint Resolution. See Appendix E for the procedures governing the Corrective Action Plans.

Complaint Resolution

A Participating Grower shall address to the satisfaction of the FFSC every complaint brought to its attention by the FFSC or a Qualifying Worker through an approved Complaint Resolution. See Appendix B for the procedures governing Complaint Resolution.

See Appendix F for the rules governing a Participating Grower’s right to appeal a Corrective Action Plan or a Complaint Resolution.

82 83

Part III: Consequences of Violations

A: Participating Growers – Suspension from the Fair Food Program

All suspensions of a Participating Grower from the FFP pursuant to the rules and procedures set forth in this Code and Guidance Manual shall be implemented pursuant to the following schedule.

1 . The first suspension of a Participating Grower shall be for a period of 90 days from the effective date of the suspension or until the Participating Grower can demonstrate to the satisfaction of the FFSC that it has remedied all outstanding violations, whichever occurs later.

2 . The second suspension of a Participating Grower shall be for a period of 180 days from the effective date of the suspension or until the Participating Grower can demonstrate to the satisfaction of the FFSC that it has remedied all outstanding violations, whichever occurs later.

3 . The third and any subsequent suspension of a Participating Grower shall be for a period of one calendar year from the effective date of the suspension or until the Participating Grower can demonstrate to the satisfaction of the FFSC that it has remedied all outstanding violations, whichever occurs later.

4 . Any suspension of a Participating Grower shall fall between October 15 and the following June 15 unless the Participating Grower grows and sells FFP tomatoes during the other months and the FFSC determines that the best interests of the FFP will be served by permitting some or all of the suspension to be served during those other months. If a 90 day suspension would otherwise run past June 15 of a given year, the FFSC may delay implementation of the suspension until October 15 of that year if it determines that the best interests of the FFP will be served by the delay.

A: Crewleaders or other supervisory personnel of Participating Growers

1 . If a crewleader or other supervisory person is found to have committed an Article I Violation, he or she must be fired and shall not be eligible to work for any Participating Grower for a period of five years. In addition, such person shall be required to complete

such training as may be deemed appropriate by the FFSC before beginning to work again for any Participating Grower.

2 . A second Article I Violation by a crewleader or other supervisory person shall result in a lifetime ban from working for any Participating Grower.

3 . If a crewleader or other supervisory person is fired for having committed an Article II or Article III Violation, except as provided in 4, immediately below, he or she shall be suspended and not eligible to work for any Participating Grower for a period of 90 days, with any days falling between June 15th and October 15th of any given year not counting toward the required 90 days of suspension unless the person fired would otherwise have worked for the Participating Grower on a Fair Food Program farm outside of Florida during that time. In addition, the person shall be required to complete such training as may be deemed appropriate by the FFSC before beginning to work again for any Participating Grower.

4 . If a crewleader or other supervisory person has been fired for a violation of Article II, provisions 1, 2 or 3, or for a second violation of any other Article II or Article III provision that occurred within five years of the first violation, the person shall be suspended and not eligible to work for any Participating Grower for the remainder of the season in which he or she is fired and for the entirety of the next season. In addition, he or she shall be required to complete such training as may be deemed appropriate by the FFSC before beginning to work again for any Participating Grower. A second violation of Article II, provisions 1, 2, or 3 by a crewleader or other supervisory person shall be treated in the same manner as a second violation of an Article I provision.

5 . If a crewleader or other supervisory person is fired for a third time for having violated an Article II and/or Article III provision, he or she shall be subject to a lifetime ban from working for any Participating Grower.

6 . The FFSC shall maintain and make available to Participating Growers a list of crewleaders or other supervisory personnel who are suspended from employment on Fair Food Program farms. Once a person on that list has regained eligibility for employment on Fair Food Program farms, the FFSC shall promptly remove his or her name from the list of suspended personnel.

7 . The FFSC will maintain a list of approved vendors qualified to provide the appropriate training that must be completed by any person fired or suspended from the Program for having violated any provision of the Code. Upon proof that the person has completed the required training provided by an approved vendor, the FFSC will inform the Participating Growers that the person is again eligible to work in the Fair Food Program.

Part IV: Joining the Fair Food Program

A: Initial Entry

Growers seeking to enter the Fair Food Program must pass an entry audit, which will be conducted by the FFSC when it is able to do so without negatively impacting its responsibilities with regard to Participating Growers. Passing the entry audit requires the following findings of compliance with the Code and Guidance Manual by the FFSC:

1 . The grower has started to implement a system in which all Qualifying Workers are placed on the grower’s payroll and receive all benefits to which they are entitled under the law and the Code directly from the grower;

2 . The grower has started to implement a timekeeping system in which Qualifying Workers control their registration device and which is used to calculate payroll for workers;

3 . The grower’s supervisors have been trained on FFP policies, by the company and the FFSC;

4 . Qualifying Workers have been provided with an education session by the CIW Education Committee;

5 . The grower has purchased or ordered adequate shade structures; and

6 . The grower has resolved to the satisfaction of the FFSC all outstanding complaints known to the

7 . FFSC or the CIW at the time of the entry audit.

Once having gained entry into the Fair Food Program, a new Participating Grower will be expected to be in full compliance with the Code and Guidance Manual by the beginning of the growing season immediately following the season in which the entry audit is conducted or by the time of the next audit of the Participating Grower conducted by the FFSC following the Participating Grower’s entry audit, whichever is later.

B: Reentry

A grower seeking reentry to the Fair Food Program, whether following a suspension or voluntary withdrawal, must prior to resuming its status as a Participating Grower, pass a reentry audit, which will be conducted by the FFSC when it is able to do so without negatively impacting its responsibilities with regard to Participating Growers. Passing a reentry audit requires that:

1 . The company is in full compliance with all requirements of the Code and Guidance Manual;

2 . There is an approved Corrective Action Plan in place relating to any unresolved issues pending at the time the company left the FFP;

3 . The company has paid any costs associated with any unsuccessful appeal filed by the company before it left the FFP;

4 . The company has resolved to the satisfaction of the FFSC all outstanding complaints known to the FFSC or the CIW at the time of the reentry audit; and

5 . Depending on the length of time since the company was last in the FFP, and at the sole discretion of the FFSC, Qualifying Workers have been provided with an education session by the CIW Education Committee or such a session has been scheduled with the CIW.

84 85

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References

"“If your actions inspire others to dream more, learn more, do more and become more, you are a leader.” ...

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Q2/NLRB basicguide.pdf

Q2/Should Labor Defend Worker Rights as Human Rights_ A Debate.pdf

Q2/VMantouvalou_Are_labour_rights_human_rights copy.pdf

Q2/Worker&HumanRightsGross002 copy.pdf

Q3/Dias-Abey.pdf

Q3/Fair-Food-Program-2017-Annual-Report.pdf

Q3/Ness Immigrant Workers Chapter2.pdf

Q3/Ness Immigrant Workers Chapter3.pdf