Last week, a United States Appeals Court heard oral arguments regarding the National Labor Relations Board’s (“NLRB”) expanded definition of joint employer in the Browning-Ferris case. In that case, the NLRB expanded its previous standard, which required “direct and immediate control” over terms and conditions of employment to be considered a joint employer, to a more lax rule of “indirect control.” You can read more about the NLRB’s joint employer rule here and here.

On Thursday, February 23, 2017, the Agricultural Labor Relations Board (ALRB) in the Salinas region conducted the election for the following petitions regarding representation of the workers for Mushroom Farms, Inc., in the Watsonville area:

Thursday, February 16, 2017
• 2017-RD-001-SAL – Decertification of United Food and Commercial Workers, Local 5 (UFCW)

Tuesday, February 21, 2017
• 2017-RC-001-SAL – Certification of United Farm Workers of America (UFW)

The tally of ballots from the election was:

Right on the heels of our report last week that the workers at Mushroom Farms, Inc., in the Watsonville area had filed a decertification petition against the United Food and Commercial Workers, Local 5 (UFCW), the United Farm Workers of America (UFW) have now filed a petition to represent these workers.  These two petitions are now pending with the Agricultural Labor Relations Board (ALRB):

Thursday, February 16, 2017

• Mushroom Farms, Inc. (2017-RD-001-SAL) – Decertification of UFCW

By:  Gregory Blueford

Last week, a U.S. Appeals Court granted the Department of Labor’s (“DOL”) motion to expedite the briefing process in its appeal to the preliminary injunction, which has delayed the implementation of the DOL’s proposed overtime rule. You can read more about the proposed rule here, which would have increased the federal “white collar” overtime exemption from $23,660 to $47,479, and the injunction granted by a U.S. District Court (here). The DOL hopes to have the injunction order overturned quickly, so that the overtime rule can go into effect as soon as possible.

With the expedited briefing schedule granted, the DOL’s opening brief is due on December 16, 2016 and the final reply brief by the DOL is due January 24, 2017. The Court also indicated that it would schedule oral argument for the first available hearing after the final reply brief is filed. While this is certainly a minor victory for the DOL, it may end up being all for naught as President-Elect Donald Trump is set to be inaugurated on January 20, 2017.

The first volley has been fired in the 2017 season.  Before unions have even begun filing Notices of Intent to Take Access (“NA”) with the ALRB, some workers in the Watsonville area have decided to try to rid themselves of the United Food and Commercial Workers, Local 5 (UFCW).  This decertification petition is the first major filing this year:

  Thursday, February 16, 2017
  • Mushroom Farms, Inc. (2017-RD-001-SAL)

The UFCW, Local 5 was only certified as the employees’ collective bargaining representative just over a year ago on January 19, 2016.  With no collective bargaining agreement in place even after Mushroom Farms – a subsidiary of Monterey Mushroom – was ordered to mandatory mediation and conciliation on August 17, 2016, it appears the workers already regret their decision last January.

On November 22, 2016, a U.S. District Court in Texas granted a nationwide preliminary injunction which blocks the Department of Labor’s (“DOL”) overtime exemption rule. As a refresher,  twenty-one states, including Arizona and Nevada, sped in and filed an emergency motion seeking a preliminary injunction contesting the constitutionality of the Department of Labor’s (“DOL”) “new rule,” which expands overtime protections for “white collar” workers under the Fair Labor Standards Act (“FLSA”). The “new rule” raises the salary threshold for the white collar exemption to $47,476. You can find our previous article here.

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