COVID, Trump NLRB Leads to Union Defeat in California’s Central Valley

by C.M. Lewis

The Foster Poultry Farms facilities in Livingston, California—which have seen at least 12 worker deaths—have been the center of a fight over worker safety. Now, workers have decertified their union, the United Farm Workers, according to a vote tallied on February 4th.

NLRB records obtained by Strikewave in July through the Freedom of Information Act show that workers first submitted their petition for a decertification election at the Foster Poultry Farms poultry processing facility in Livingston in June of 2020. Over 1,800 workers were part of the bargaining unit; UFW has 6,240 active dues-paying members, according to their latest filings with the Department of Labor. The successful decertification vote—which saw low turnout, with only 661 workers votes tallied and 188 voided ballots—presents a potential setback for the small, California-based union. Final results have not been certified.

Typically, union decertification elections can take a long time to occur, if they occur at all. Initially, the petition for decertification at the Livingston facility was blocked at the regional level because of numerous unfair labor practices: a long-standing rule enforced by the NLRB mandating that charges of unfair labor practices would block elections. However, a host of Trump-era NLRB decisions—including a rule removing “blocking charges” posted to the Federal Register by the NLRB in April, which came into effect July 31st—have made it easier to decertify unions. Even with recent sharp changes at the NLRB, Trump-era rules paved the way for workers to oust their union less than four years after voting it in.

It’s the latest challenge for a once-powerful union that advocated a different approach to labor organizing, challenging the dominance of California’s agribusiness and the stark absence of labor law protections—and it’s a defeat in a part of California where migration, work, and the struggle for power in the food industry have a long history.

The Central & San Joaquin Valleys

Central California has long been contested territory between food workers and management. John Steinbeck’s classic In Dubious Battle portrayed the pitched fights between farmworkers and the growers in the Depression era, and the profound difficulties in building worker organization.

According to Farmworkers Justice, a California-based advocacy group associated with UnidosUS, up to half of American farmworkers are undocumented. It’s not restricted to California, either. A National Employment Law Project investigation into New York agriculture concluded that workers “who experience abusive conditions, wage theft, or unsafe practices that threaten worker and consumer safety may be fearful of speaking up, while those on H-2A visas are tied to just one employer and cannot leave to work in less abusive conditions.” Similarly, an Oxfam investigation into North Carolina tobacco farming found pervasive violations of health and safety conditions, violations of federal minimum wage laws, and slum housing conditions.

All of the experts and sources Strikewave spoke to requested anonymity, due to concerns about intervening in a decertification election.

One expert interviewed by Strikewave explained that the Central and San Joaquin Valleys have always been a vessel of migration, primarily from Mexico, and usually for work in the fields. Estimates place the immigrant population in the sparsely populated Central Valley at over 900,000; many are undocumented. Historically, Mexican migrants have come from the states in Central-West Mexico; more recently, many immigrants have come from southern Mexican states like Oaxaca—ones with Indigenous populations that may primarily speak Indigenous languages like Zapotec and Mixtec, rather than Spanish. Family and village ties play a key role in migration.

Studies into conditions for indigenous farmworkers reveal grim realities. Underpayment, poor working conditions, and discrimination are widespread; access to water and bathrooms are far from givens. Hard work in scorching heat leads to dangerous working conditions; according to reports, 68 farm workers died from heat exposure between 1992 and 2006. Legal protections such as those found in California—and few other states—are no guarantee of safe working conditions.

Labor recruiters often draw migrant workers to the Central Valley without attention to the status of their documentation—the necessity of Mexican-origin farm labor and the demands of the labor market incentivize a loose attitude. Undocumented workers are even preferred by employers, according to some studies. According to the Centro de los Derechos del Migrante, a nonprofit supporting policy reforms to migrant worker programs, labor recruiters often charge illegal fees, misrepresent working conditions and terms of employment, and otherwise prey on migrants looking for work.

Mexican-origin migrants aren’t alone in the Central Valley. There’s also a large Punjabi Sikh community—one that originated primarily in the early twentieth century, and came to be a large part of the Central and San Joaquin Valley’s ethnic identities. Over 1,500 Punjabi Sikhs live in Livingston, where the Foster Poultry Farms facility is located, and many work at the processing facilities—the town’s total population is just over 14,000. Over 40,000 Hmong immigrants live in the Central Valley.

UFW primarily organizes a vulnerable, migrant workforce in opposition to ruthless growers and agribusinesses. The tactics utilized by growers to oppose worker organization and advocacy are often brutal. A prominent California attorney representing growers, Anthony Raimondo, called Immigration and Customs Enforcement on workers that made legal complaints; according to In These Times, a Judge with the Ninth Circuit Court of Appeals called him “kind of like a serial killer.” Retaliation against workers is common, as in the case of Rancho Laguna Farms workers. There’s little to stop employers and minimal public scrutiny—migrant workers are often isolated from the communities around them, sometimes facing harassment, intimidation, and even death threats.

Showdown In Livingston

With all these factors at play, the situation in Livingston is complicated.

The pandemic has hit the Central Valley hard. Many face evictions and hard times, and Merced County—where the facility is located—is facing a staggering medical crisis. On December 30th of last year, the county ran out of available intensive care unit beds, leading California public officials to plead with residents to follow mitigation measures to curb the pandemic.

Workers at Foster Poultry Farms work in processing, not in farm work like most of UFW’s members—but it’s closely linked to the agricultural economy of the Central Valley, and conditions are exploitative and dangerous, especially during the pandemic. Food processors like Smithfield have been the subject of numerous complaints and outbreaks have been traced to food processing facilities, including multiple outbreaks in Pennsylvania like in Luzerne and Juniata counties. In early May, Pennsylvania food processors—many represented by UFCW Local 1776—led the nation in COVID-19 outbreaks, causing the tragic deaths of workers and union stewards.

Most astonishingly, a recent wrongful death lawsuit alleged that Tyson plant managers in Iowa placed bets on infection rates among workers—evidence, according to the lawsuit, of clear negligence. Reports show that the state of Iowa underreported instances of COVID-19 among Tyson plant workers; in turn, Iowa’s Occupational Safety and Health Administration (Iowa OSHA) failed to issue citations for health and safety violations.

This pattern has played out across the country. A Smithfield facility in South Dakota shut down in April, and multiple plants in Georgia experienced similar outbreaks. Food processing workforces, regardless of state, are often heavily Latinx and other workers of color, exacerbating the disproportionate COVID-19 impact among communities of color. A report by The Guardian in May described meat processing plants as one of the “front lines” in the war against COVID-19; UFCW reported ninety-three member deaths among meat processing workers as of June 25.

Those problems are impacting the Livingston facility, too. In August, a COVID-19 outbreak caused eight worker deaths and triggered a closure urged by the Merced County Department of Health and then-Attorney General Xavier Becerra’s office; the UFW threatened a boycott if the plant failed to close. The closure followed on the heels of multiple orders by the Merced County Department of Health to enact safety precautions. Multiple investigations have been opened at Foster Poultry Farms Livingston facilities by California’s state-level Occupational Safety and Health Administration, CalOSHA, since August. Just days ago, UFW secured an injunction forcing Foster Poultry Farms to observe COVID-19 safety procedures. As of publication, Foster Poultry Farms has not responded to a request for comment concerning their COVID-19 safety protocol.

This isn’t the Livingston facility’s first decertification, even if the circumstances have changed. In 2017, workers voted to decertify the International Association of Machinists and opted for representation from the United Farm Workers. Sources familiar with the decertification battle say that health care was a major point of contention: costs had increased, and the UFW was able to point to lower dues and a state-subsidized health care plan. Senate Bill 145, passed in 2015, makes UFW’s Robert F. Kennedy Farm Worker Health Plan eligible for up to $3 million in annual reimbursement from the state of California.

According to local sources, decisions over union representation can reflect tensions in a workforce split primarily among Punjabi and Latinx workers. In addition to IAM, disputes over representation have involved the International Union of Journeymen and Allied Trades—an independent, East coast based union and the parent union for the notorious New York-based United Public Service Employees’ Union, which has been criticized by the United Electrical Workers (UE) as an “un-democratic, top-down staff-run union.” Some IUJAT officials were indicted in a federal probe of the Genovese crime family in 2012.

In this case, evidence suggests that Foster Poultry Farms may have a hand in the decertification push. Another decertification was filed at the company’s Delhi plant against the Teamsters four days before the petition at the Livingston plant—unusually close timing for rare decertifications. The Teamsters lost that election 23-7. Documents obtained by Strikewave indicate that the company and UFW reached an agreement on a contract with an important health and safety committee in March of 2020; since then, the company has allegedly attempted to interfere with contract ratification and implementation. Alleged refusal to implement the agreement reached in March allowed the decertification to proceed; normally decertifications are prohibited for up to three years after a contract is executed.

They’ve also found support from anti-union activists. Jesse Rojas, who leveraged the campaign to decertify UFW at Gerawan into a group called “Pick Justice” and a consulting business called the Redd Group, has launched campaigns throughout California in opposition to the UFW and labor allies in Sacramento, including a six-figure ad buy accusing Assemblyperson Lorena Gonzalez-Fletcher of serving “powerful union bosses.” Rojas has blamed deaths at the Foster Poultry Farms facility on the UFW; more recently, he has worked for Primex Farms managing press relations for a COVID-19 outbreak and has spread pro-Trump conspiracy theories alleging election fraud.

There’s other factors that may have influenced the fight at Foster Poultry Farms. In 2017, Livingston became one of the first California cities to declare itself a “Sanctuary City,” following the election of Donald Trump. The same year, it was targeted in a massive Immigration and Customs Enforcement (ICE) crackdown across California. According to estimates, approximately one in ten Merced County residents were undocumented as of 2016.

According to experts, fear of ICE and federal authorities can be a large barrier to exercising labor rights. Pressing labor issues can lead to ICE raids, and although undocumented workers fired for union activity have rights under the National Labor Relations Act and can be restored to their jobs, they’re not entitled to the back pay awarded to documented workers. How much this influences the Livingston facility is unknown; it’s unclear how many workers are undocumented, or have family members that are undocumented. Reporting by the Los Angeles Times has shown that many meat processing workers are immigrants, and many are undocumented.

Foster Poultry Farms did not respond to multiple requests for comment. However, sources familiar with the situation at Livingston indicated a history of low wages and poor health and safety provisions at the plant spanning several decades—issues seemingly addressed in part by UFW’s contract reached in March. Asked for comment, UFW spokesperson Elizabeth Strater slammed Foster Poultry Farms and expressed regret that, “Given the context, UFW membership wasn’t able to improve their lives within this toxic employer.”

UFW has weathered hardship before. They plunged to 4,200 members in 2012; by 2014 they had gained 8,000 more. Though their membership numbers have fluctuated over the past two decades, disclosures filed with the Department of Labor still show largely stable funding. Unusually, UFW additionally receives significant funds through grants, donations, and bequests; since 2011 “other receipts,” usually in the forms of donations, have comprised between 30% and 40% of the Union’s annual revenue.

Decertification in Livingston is a setback—one that may prove difficult to recover from. The blow of losing a large and recently acquired bargaining unit could end UFW’s foray into food processing organizing. It could also remove one of the few protections workers at the Livingston facility have against a company that has displayed casual indifference to worker deaths and resisted more stringent health and safety measures. According to UFW, they were the “only eyes left inside for those workers.” The same day that a worker died from COVID-19, Foster Farms tweeted asking how 2020 plans had changed. It could also embolden food processors nationwide who have fought their unions over COVID-19 safety restrictions.

For the UFW, they will continue on with their mission. According to Strater, UFW knowingly organizes in difficult circumstances, and will continue to advocate for farm workers, many of whom lack the right to organize a union. For workers in Livingston, the impact on their futures is more certain. For them, and for food and agricultural workers across the United States, health and safety violations—and the lack of union protections—can be a matter of life and death.

C.M. Lewis is an editor of Strikewave and a union activist in Pennsylvania.

AdminFebruary 5, 2021