AGRICULTURAL LABOR-MANAGEMENT RELATIONS

MONDAY, MAY 21, 1973

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON AGRICULTURAL LABOR OF THE

COMMITTEE ON EDUCATION AND LABOR,

Washington, D.C.

The subcommittee met, pursuant to notice, at 9:30 a.m., room 2175, Rayburn House Office Building, Hon. William D. Ford (chairman of the subcommittee) presiding.

Present: Representatives Ford, Lehman, and Landgrebe.

Staff members present: Thomas R. Jolly, counsel; Daniel Pollitt, special counsel; Patricia R. Morse, clerk, and Edith C. Baum, minority counsel.

[Texts of H.R. 881 (Title I), H.R. 4007, H.R. 4011, H.R. 4408, and H.R. 7513 follows:]

[H.R. 881, 93d Cong., 1st sess.]

A BILL To assure equal access for farmworkers to programs and procedures instituted for the protection of American working men and women, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Farm Workers' Bill of Rights".

STATEMENT OF FINDINGS AND PURPOSE

SEC. 2. (a) The Congress finds that, although most working men and women have had their working conditions improved, their real wages increased, and their voice at the bargaining table safeguarded by Federal and State labor legislation during the course of the past half-century, one segment of the working force has been left almost wholly outside of this forward movement. The farmworker, either because of explicit exclusion from the laws, or because of separate treatment therein, has been effectively denied the kind of protection, both substantive and procedural, that other working men and women have come to consider as their right.

(b) The Congress further finds and declares it to be repugnant to the public policy of the United States that a major segment of the working population has been effectively excluded from the equal protection of the laws.

(c) The Congress, therefore, declares it to be the policy of the United States and the purpose of this Act to assure equal access for farmworkers to programs and procedures instituted for the protection of working people, specifically including workmen's compensation, wage and hour protection, unemployment compensation, and free collective bargaining power substantially equal to the power enjoyed by their employers.

TITLE I-COLLECTIVE BARGAINING

SEC. 101. This title may be cited as "The Farm Workers' Collective Bargaining Act".

SEC. 102. (a) Section 2(3) of the National Labor Relations Act is amended by striking the words "as an agricultural laborer, or".

(b) Section 2 (5) of the National Labor Relations Act is amended by striking the period at the end and adding in lieu thereof "but for purposes of section (1)

8(b)(4) (A) and (B) and section 8(e) of this Act shall not include any organization primarily representing agricultural workers."

SEC. 103. Section 8(a) of the National Labor Relations Act is amended by ́ striking the period at the end thereof and inserting in lieu thereof a semicolon and by adding the following new paragraph:

"(6) to employ in any workplace during the existence of a strike or lockout at such workplace any individual who is not domiciled in the United States, unless such individual was so employed immediately prior to the beginning of such strike or lockout."

SEC. 104. Section 8(b) (7) of the National Labor Relations Act is amended by inserting after "employer" the first time it appears the following: "other than an employer engaged in agriculture)".

SEC. 105. Section 8 of the National Labor Relations Act, as amended, is further amended by adding at the end thereof the following new subsection:

"(g) It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged in agriculture to make an agreement covering employees engaged (or who, upon their employment, will be engaged) as agricultural laborers, with a labor organization of which such employees are members (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) because (1) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or (2) such agreement provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final proviso of section 8(a) (3) of this Act."

SEC. 106. Section 14 (b) of the National Labor Relations Act is amended by inserting before the period at the end thereof the following: ": Provided, That this subsection shall not be applicable with respect to employment in agriculture.' SEC. 107. Notwithstanding the provisions of any other law, the amendments made by this title shall take effect sixty days after the date of enactment.

[H.R. 4007, 93d Cong., 1st sess.]

A BILL To amend the National Labor Relations Act, as amended, to amend the definition of "employee" to include certain agricultural employees, and to permit certain provisions in agreements between agricultural employers and employees

Be it enacted by the Senate House of Representatives of the United States of America in Congress assembled,

SECTION 1. That section 2(3) of the National Labor Relations Act, as amended, is amended by striking out the following phrase: "as an agricultural laborer, or". SEC. 2. Section 8 of the National Labor Relations Act, as amended, is amended by adding the following new subsection (g):

"(g) It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged in agriculture to make an agreement covering employees engaged (or who, upon their employment, will be engaged) as agricultural laborers, with a labor organization of which such employees are members (not established, maintained, or assisted by any action defined in section 8(a) of this Act as an unfair labor practice) because (1) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or (2) such agreement provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final proviso to section 8(a) (3) of this Act."

SEC. 3. Notwithstanding the provisions of any other law, the amendments made by this Act shall take effect sixty days after the date of enactment.

[H.R. 4011, 93d Cong., 1st sess.]

A BILL To provide for the establishment of an Agricultural Labor Relations Board for the purpose of regulating the agricultural industry and agricultural labor, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SHORT TITLE AND DECLARATION OF POLICY

SECTION 1. (a) This Act may be cited as the "Agricultural Labor Relations Act of 1972".

(b) Experience has demonstrated that the lack of orderly procedures for securing collective bargaining rights has contributed to certain practices in the agriculture industry, including secondary boycotts and work disruptions during critical periods, which promote strife and pose a threat to the public interest and the free flow of commerce. Recognizing the unique nature of the agriculture industry, including the public dependence upon its vital products, it is necessary to establish special provisions so that the right to organize and bargain collectively may be assured to agricultural employees without undue injury to the public interest.

It is further recognized that agricultural employers should be protected from certain practices engaged in by some labor organizations, their officers, and members which burden or obstruct commerce thereby preventing the free flow of agricultural products.

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce by encouraging farmers and agricultural employees represented by labor organizations to resolve labor disputes through collective bargaining and to protect the exercise by agricultural workers of full freedom of association, self-organization, and designation of representatives of their own choosing for the purposes of negotiating the terms and conditions of their employment or other mutual aid or protection.

SEC. 2. When used in this Act

DEFINITIONS

(1) The term "person" includes one or more individuals, labor organization, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.

(2) The term "employee" shall mean an employee employed in agriculture. (3) The term "employer" shall mean an employer engaged in agriculture who employed more than five hundred man-days of agricultural labor during any calendar quarter of the preceding calendar year.

(4) The term "agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of commodities defined as agricultural commodities in section 15 (g) of the Agricultural Marketing Act, as amended, the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.

(5) The term "Agricultural Labor Relations Board" means the Agricultural Labor Relations Board provided for in section 3 of this Act.

(6) The term "representative" includes any individual or labor organization representing exclusively or in part, agricultural employees as defined herein.

(7) The term "labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with agricultural employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

(8) The term "commerce" means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any territory of the United States and any State or other territory, or between any foreign country and any State, territory, or the District of Columbia, or within the District of Columbia or any territory, or between points in the same State but through any other State or any territory or the District of Columbia or any foreign country.

(9) The term "affecting commerce" means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of

commerce.

(10) The term "unfair labor practice" means any unfair labor practice listed in section 8.

(11) The term "labor dispute" includes any controversy concerning terms, tenure, or conditions of agricultural employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

(12) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

(13) The term "professional employee" means—

(a) any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes; or

(b) any employee, who (i) has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph (a), and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraphi (a).

(14) In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.

AGRICULTURE LABOR RELATIONS BOARD

SEC. 3. (a) The Agriculture Labor Relations Board (hereinatfer called the Board or the ALRB) created by this Act shall consist of three members appointed by the President by and with the advice and consent of the Senate. Of the three appointed members, one shall be appointed for a term of five years and the remaining two members for terms of three and one year respectively. Their successors shall be appointed for terms of five years each, excepting that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed. The President shall designate one member to serve as Chairman of the Board. Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause. Two members of the Board shall constitute a quorum.

(b) The Board is authorized to determine the unit appropriate for the purpose of collective bargaining. The Board or its agents are also authorized to investigate and provide for hearings, determine whether a question of representation exists, and to direct an election or take a secret ballot under section 9 and certify the results thereof. The decisions and certifications of the Board under section 9 of this Act shall be subject to review in the appropriate United States court of appeals. In such case the record of such representative proceeding shall be filed in the court of appeals and thereupon the decision of such court shall be made upon the pleadings, testimony, and proceedings set forth in such record. Unless a specific stay of action is granted either by the Board or the court, a petition for review of the Board's decision or certification shall not operate as a stay of decision or certification by the Board.

(c) The Board shall at the close of each fiscal year make a report in writing to Congress and to the President stating in detail the cases it has heard, the decisions it has rendered, the names, salaries, and duties of all employees and officers in the employ or under the supervision of the Board, and an account of all moneys it has disbursed.

(d) There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than trial examiners and legal assistants to Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law. In case of a vacancy in the office of the General Counsel the President is authorized to designate the officer or employee who shall act as General Counsel during such vacancy, but no person or persons so designated shall so act (1) for more than forty days when the Congress is in session unless a nomination to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment sine die of the session of the Senate in which such nomination was submitted. SEC. 4. (a) Each member of the Board and the General Counsel shall receive a salary of $38,000 a year, except the Chairman of the Board who shall receive $40,000, shall be eligible for reappointment, and shall not engage in any other business, vocation, or employment. The Board shall appoint an executive secretary, and such attorneys, examiners, and such other employees as it may from time to time find necessary for the proper performance of its duties. The Board may not employ any attorneys for the purpose of reviewing transcripts of hearings or preparing drafts of opinions except that any attorney employed for assignment as a legal assistant to any Board member may for such Board member review such transcripts and prepare such drafts. No trial examiner's report shall be reviewed, either before or after its publication, by any person other than a member of the Board or his legal assistant, and no trial examiner shall advise or consult with the Board with respect to exceptions taken to his findings, rulings, or recommendations. The Board may establish or utilize such regional, local, or other agencies, and utilize such voluntary and uncompensated services, as may from time to time be needed. Attorneys appointed under this section may, at the direction of the Board, appear for and represent the Board in any case in court. Nothing in this Act shall be construed to authorize the Board to appoint individuals for the purpose of conciliation or mediation, or for economic analysis.

(b) All of the expenses of the Board, including all necessary traveling and subsistence expenses outside the District of Columbia incurred by the members or employees of the Board under its orders, shall be allowed and paid on the presentation of itemized vouchers therefor approved by the Board or by any individual it designates for that purpose.

SEC. 5. (a) The principal office of the Board shall be in the District of Columbia, but it may meet and exercise any or all of its powers at any other place. The Board may by one or more of its members or by such agents or agencies as it may designate, prosecute any inquiry necessary to its functions in any part of the United States. A member who participates in such an inquiry shall not be disqualified from subsequently participating in a decision of the Board in the

same case.

(b) Attorneys, examiners, and such other employees as the Board determines are necessary shall be located in various regional offices of the United States and wherever feasible, shall utilize on a reimbursable basis, the regional offices of the National Labor Relations Board in the performance of any duties involving the application of this Act.

SEC. 6. (a) The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this Act: Provided, That within one hundred and eighty days of the effective date of this Act, the Board shall publish in the Federal Register a general notice of proposed rulemaking with regard to the standards, criteria, or policy to be applied in cases involving section 9 of the Act, including but not limited to the issues of the unit appropriate for purposes of collective bargaining, the eligibility of employees to vote in elections, and the circumstances under which a question