State’s temporary farmworkers win right to unionize

Farmworkers at Palmer and Paumanok vineyards on Long Island’s North Fork, represented by Local 338 RWDSU/UFCW, ratified a collective bargaining agreement in April 2023. They appear to be the first farmworkers to ratify a contract following the enactment of legislation in 2020 that for the first time permitted farm laborers in the state to unionize. This story mistakenly implied that no farmworkers had yet approved a collective bargaining agreement.

The right of temporary agricultural workers in New York State to organize has been upheld by the Public Employment Relations Board. 

In a series of five decisions issued Aug. 15, PERB also upheld the United Farm Workers of America’s certification as bargaining representatives for workers at five farms. The farms and their industry advocates had petitioned the board to review decisions by PERB hearing officers who determined that temporary, nonimmigrant workers working in agriculture, known a H-2A workers, could be included in the farms’ bargaining units. 

"We are heartened by this decision, which reaffirms farmworkers’ right to a union in the State of New York," the United Farm Workers secretary-treasurer, Armando Elenes, said in a statement. "It is unfortunate that these growers have repeatedly attempted to avoid their legal responsibility to negotiate a union contract with their workers, first by attempting to overturn New York’s agricultural labor law, and now by contesting the certifications themselves. We hope this latest ruling will clear the way to the swift negotiation of fair union contracts."

The workers number about 500, according to Antonio De Loera-Brust, the UFW’s communications director. 

The three-member PERB panel ordered the five farms to negotiate a contract with the UFW. The five farms, Cherry Lawn Fruit Farms in Wayne County, Porpiglia Farms in Ulster County, A & J Kirby Farms in Orleans County, Lynn-Ette & Sons Farms, also in Orleans County, and Wafler Farms in Wayne County. 

In all five instances, the board found that, contrary to arguments by the farms, their advocates and representatives, the H-2A workers are in fact employees and as such are entitled to union representation. 

The farms and their advocates had argued that immigration regulations preclude H-2A workers from union representation and collective bargaining. 

The board disagreed, noting that the Farm Laborers Fair Labor Practices Act, enacted in January 2020, expanded the definition of “employee” as established by the state statute to include farm laborers. The Farm Workers Act further defined “farm laborers” as “any individual engaged or permitted by an employer to work on a farm.”

“The legislature’s use of the term ‘any’ is a clear expression that it did not intend to restrict

the definition of farm laborers except in the manner specifically set forth in the statute,” the board’s decision continued. “To read this definition as limiting or excluding certain classes of farm workers would be contrary to its plain language.”

The farms’ argument, the board said, “would exclude thousands of farm laborers in New York State from coverage of FLFLPA, clearly not something the legislature explicitly or implicitly intended.” 

The UFW filed petitions with PERB to represent workers at Porpiglia Farms, A & J Kirby Farms, Lynn-Ette & Sons Farms and Wafler Farms in Wayne County in October 2022 and at Cherry Lawn Fruit Farms in November 2023. 

The law firm representing three of those farms on the PERB matter, Porpiglia Farms, A & J Kirby Farms and Cherry Lawn Fruit Farms, did not respond to an emailed request for comment. 

‘Slowly but surely’

Ag workers at those farms were among the first to organize following the enactment of the Farm Laborers Fair Labor Practices Act in January 2020 that among other things enshrined the right to collectively bargain to farmworkers, which they had previously been unable to do by law. The FFLPA also granted the farmworkers time-and-a-half overtime pay after 60 hours in a calendar week, disability pay, paid family leave and unemployment coverage.

De Loera-Brust, the UFW’s spokesperson, said the farmers’ PERB claims and associated actions were delay tactics designed to stall negotiations on a first contract with farmworkers. “And we have been trying for well over a year now to negotiate any contracts,” he said. “So we're coming to a point here where we're coming to the end of this process one way or another. And if the companies won't sit down with us, it's going to have to be done through arbitration…. But we're moving painfully, slowly but surely towards getting ... [a] contract in the state of New York, which would be a huge moment, a huge victory and really, really exciting.”

He noted that progress on a contract was being made at one farm, Cahoon Farms in northeastern Wayne County, which was not party to the PERB complaints. “It's just one of these things growers need to understand — that the laws have changed, that their workers have rights, and that their workers are going to use those rights, sometimes including the right to unionize,” De Loera-Brust said. 

The H-2A program is designed to provide labor for agricultural employers anticipating a shortage of domestic workers. The U.S. Department of Labor certified 370,000 participants in the program in Fiscal Year 2022, the latest figures available, a sevenfold increase since 2005 and double the number of program participants in FY 2016. Nearly 10,000 participated in New York State in FY 2022, according to the DOL.  Most come from Mexico and Jamaica. 

De Loera-Brust expects the number of unionizing agricultural workers who work in the state to increase. 

“One thing that we know happens, and we've seen this in California historically, is that once workers in an area get a union contract with benefits, with wage improvements, with grievance processes, workers at other farms want to get in on that,” he said. 

For now, farmworkers are watching from the sidelines, De Loera-Brust said, “because again, no one's done this before in New York, and workers are afraid of retaliation.” 

The UFW, though, has had some success in reinstating workers who were fired for union activity, he said. “And that's been a big kind of confidence booster for a lot of these workers where they actually see, OK, the union can protect me and my labor rights are real … and it's not just words, but that if I get fired in retaliation for organizing, we can actually do something about that."

The UFW, headquartered in California, has increased its organizing activities in New York in recent years and now has a full-time staff in the state. 

“There is a lot of opportunity for growth for farm labor unions in New York and even in some of the surrounding states potentially, if we get the New York model up and running. This is now an example for other states for what they can do,” De Loera-Brust said. “What New York really proves is that when you change the laws, workers can win.”

richardk@thechiefleader.com

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