National Labor Relations Act. The National Labor Relations Act (NLRA) governs collective bargaining of private sector workers, allowing employees the right to collectively bargain and join unions. NLRA excludes certain groups of workers from its coverage, including agricultural laborers.
State Collective Bargaining Law. State law grants workers the right to organize and form labor unions, as well as engage in concerted activities for the purposes of collective bargaining free from interference, restraint, or coercion from employers. The Public Employment Relations Commission (PERC) administers and enforces most public sector collective bargaining laws in Washington. PERC determines and certifies appropriate bargaining units, mediates labor disputes, and issues decisions in representation, unfair labor practice, and unit clarification cases. PERC does not have jurisdictional authority over private sector workers generally, but the Legislature has placed two types of private sector workers under PERC's jurisdiction—symphony musicians and agricultural cannabis workers.
Covered Employers and Employees. Collective bargaining for agricultural employees is placed under the jurisdiction of PERC. Agricultural employees are persons engaged in agriculture, any individual engaged or permitted by an agricultural employer to work on a farm, and persons engaged in the canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distributing of:
Agricultural employees include any person whose work has ceased because of, or in connection with, any prohibited practice. Agricultural employees do not include:
members of an agricultural employer's family who are related to the third degree of consanguinity.
Agricultural employers are any person who employs agricultural employees and includes any person acting directly or indirectly as an agent of an agricultural employer, but does not include an employer of agricultural cannabis employees who collectively bargain under state law.
Agriculture includes farming in all its branches and, among other things, includes:
Certification of Bargaining Representatives. PERC must determine the exclusive bargaining representative through either conducting a cross-check or an election. If a farmworker labor organization seeking to represent agricultural employees has filed labor-management (LM) forms for the preceding two years with the federal Department of Labor, and is the only farmworker labor organization seeking certification as exclusive bargaining representative of a bargaining unit for which there is no incumbent exclusive bargaining representative, PERC may determine representation by conducting a cross-check comparing the bargaining authorization cards against the employment records of the agricultural employer. A determination through a cross-check process may be made upon a showing of interest of more than 50 percent of the agricultural employees.
If a farmworker labor organization seeking to represent agricultural employees has not filed LM forms for the preceding two years, or is not the only farmworker labor organization seeking certification as the exclusive bargaining representative, PERC must conduct an election to ascertain the exclusive bargaining representative upon the request of a farmworker labor organization showing written proof of at least 30 percent representation of the agricultural employees within the unit. PERC must, within ten calendar days from the showing, hold an election by secret ballot to determine the issue.
The bargaining representative that is determined through election or cross-check to represent a majority of the voting agricultural employees must be certified as the exclusive bargaining representative of, and is required to represent, all the employees within the unit without regard to membership in the bargaining representative.
No question concerning representation may be raised within one year of a certification or attempted certification. If there is a valid collective bargaining agreement in effect, no question of representation may be raised except 60 to 90 days prior to the expiration date of the agreement. Any agreement that contains a provision for automatic renewal or extension of the agreement is not effective as a bar to a question of representation if it extends the agreement for more than three years.
Dispute Resolution and Interest Arbitration. PERC must provide, at the mutual request of an agricultural employer and an exclusive bargaining representative, mediation of any labor dispute between them. Any party to mediation may request and shall receive fact-finding by the mediator at the conclusion of a failed mediation.
Upon the certification of an exclusive bargaining representative, the employer has the duty to engage in collective bargaining with the exclusive bargaining representative before changing any wages, hours, or working conditions of the represented employees. Any allegation by the exclusive bargaining representative that the employer has made a unilateral change in wages, hours, and working conditions may be presented for resolution to an arbitrator mutually selected and compensated by the parties, or by application of the exclusive bargaining representative to PERC for provision of the arbitrator.
If a collective bargaining agreement expires, its provisions, except any prohibition on strikes or lockouts, continue in force until renegotiated. During the agreement's hiatus, any allegation by the exclusive bargaining representative that the employer has made a unilateral change in wages or economic benefits may be presented for resolution to an arbitrator mutually selected and compensated, or by application of the exclusive bargaining representative to the commission for provision of the arbitrator.
If the employer and the exclusive bargaining representative fail to come to agreement within three months of certification or within three months of the expiration of the last collective bargaining agreement, all matters remaining in dispute must be submitted by the parties to PERC for resolution through its interest arbitration procedures. The parties may agree in writing to continue to bargain on a month-to-month basis. If the parties do not agree to an extension, or the extension expires, the parties must submit their dispute for interest arbitration. Each party must submit that party's last and final proposals upon which there exists an impasse. All impasse items must be submitted to arbitration.
The arbitrator or arbitration panel is empowered to review the parties' final proposals and to consider mediator findings, if any, and to issue a decision on the submitted items along with the previously agreed items, such that a complete agreement is imposed through the arbitration. The arbitrator or arbitration panel is also empowered to consider evidence submitted by the parties concerning factors such as the employer's ability to meet the costs of a contract, employee compensation at comparable employers, and cost of living in the relevant geographic area in their decision-making process.
If the parties cannot agree on the arbitrator or arbitration panel, the parties must apply to PERC or, if both parties agree, to the American Arbitration Association to provide a list of five qualified arbitrators from which the arbitrator must be chosen. Each party must pay one-half of the fees and expenses of the arbitration and of the recording of the proceedings. Determinations by the arbitrator or arbitration panel are final and binding upon the parties. Determinations may be appealed in superior court.
In addition to any contractually agreed method for selecting arbitrators, the parties may mutually request PERC to appoint an arbitrator to assist in the resolution of a labor dispute arising from the application of the matters contained in a collective bargaining agreement. PERC may not collect any fees or charges from the employer or the exclusive bargaining representative for services performed under the bill.
Public Employment Relations Commission Enforcement. For agricultural employers and employees, PERC has concurrent jurisdiction with superior courts to prevent and remedy violations of existing state law granting workers the right to organize, designate labor representatives, and negotiate terms and conditions of employment free from interference, restraint, or coercion of employers. PERC must apply Washington case law in adjudicating alleged violations of these provisions. If PERC determines any person has committed a violation, it must issue a cease and desist order and take actions to enforce the state's policy of allowing workers to organize free from interference, such as the payment of damages, reinstatement of employees, and reasonable attorneys' fees and costs. PERC, the affected employee, or the employee's bargaining representative may petition superior court for the enforcement of PERC's order and for appropriate temporary relief.
Other Provisions. The bill does not interfere with, impede, or diminish the right to strike. The provisions in state law regarding privileged communications between a union representative and an employee apply to farmworker labor organizations covered under the bill.
PERC is required to create signage in the five most common foreign languages used in the state outlining the rights established under the bill. A copy of the signage must be provided to each agricultural employer covered under the bill.
The committee recommended a different version of the bill than what was heard. PRO: The NLRA excludes agricultural work and the injustice still remains. The bill extends the privilege most workers already get to millions of workers who lack protections. In instances where collective bargaining agreements exist, farmworker lives have greatly improved. Contracts benefit both farms and the workers. Creating a formal process increases the change of getting an agreement without costly strikes or pickets. The bill allows for predictability and fairness, and it gives farmworkers the same rights as other Washingtonians. While farmworkers can form unions currently, the current law does give the right to a contract or union certification. The bill is important because farmworker rights are being reduced at the federal level.
CON: The bill is very broad and opens the door to additional bureaucracy that will roll into other parts of agriculture. The card check is concerning because it allows for workers to be coerced. The only way to prevent coercion and protect worker privacy is through secret ballot election. The cross-check lowers the threshold that exists under the NLRA. The bill would increase costs without adding meaningful protections because many of the protections already exist in state law. Farmworkers in Washington already have some of the strongest protections in the country. There is no clear process for decertification in the bill and there are no strike protections or protections from secondary boycotts. Farms had a net negative income last year and are barely holding on. No one is making income from farming and the industry already has many farm closures.
PRO: Senator Rebecca Saldaña, Prime Sponsor; Giselle Ramirez Silva, Familias Unidas por la Justicia; Tomas Ramon, FUJ; Benito Lopez, Familias Unidas por la Justicia; Gilardo Perez; Edgar Franks, Familias Unidas por la Justicia; Paulino Perea; Lydia Zepeda, League of Women Voters Washington; Andrea Schmitt, Columbia Legal Services; Lucy Madrigal, Community to Community; April Sims, Washington State Labor Council, AFL-CIO.