News & Commentary

May 24, 2019

Annie Hollister

Annie Hollister is an Honors Attorney at the U.S. Department of Labor and an alumna of Harvard Law School.

A New York State appeals court has ruled that farmworkers have a fundamental right to unionize.  The 4 – 1 decision invalidates a portion of a 1937 law that specifically excludes farmworkers in New York from exercising collective bargaining rights.  The suit began in 2016, after Crispin Hernandez, a dairy worker, was fired from his job for meeting with human rights organizers to discuss his working conditions.  Hernandez, represented by the New York Civil Liberties Union and joined by the Workers’ Center of Central New York and the Worker Justice Center of New York, challenged the statute as violating the New York state constitution.  The farmworkers’ case was bolstered when New York state attorney general Letitia James declined to defend the law.  Yesterday Justice Christine Clark of the New York Appellate Division, Third Department, found for the plaintiffs, reversing the trial court’s dismissal of the complaint.  Justice Clark pointed to the plain language of the New York State constitution, which guarantees, “without qualification or restriction,” that “[e]mployees shall have the right to organize and to bargain collectively through representatives of their own choosing.”  Justice Pritzker dissented, pointing out that the constitutional language post-dated the statute at issue, and that, if the state legislature had wanted to repeal the law, it would have done so explicitly.  Mr. Hernandez called the decision “a victory for farmworkers,” who are historically underrepresented in collective bargaining.  This decision also comes as New York state labor activists push for the passage of the Farmworkers Fair Labor Practices Act, which would explicitly grant farmworkers collective bargaining rights and would impose substantive regulations on farmworker hours and conditions.

The NLRB has allowed Anheuser-Busch to force a union worker’s racial-discrimination claim into arbitration, even though union workers should be exempt from the company’s private-arbitration agreement.  Michael Brown, who is represented by the International Brotherhood of Teamsters, filed suit in 2012 after his termination was upheld via the grievance procedure outlined in his union’s collective bargaining agreement.  Brown subsequently filed an unfair labor practice with the NLRB when Anheuser-Busch attempted to redirect the conflict into arbitration.  In 2013, an administrative law judge found that allowing Brown’s case to go to arbitration would constitute an illegal unilateral alteration of the collective bargaining agreement.  The Board reversed in a 2-1 decision, finding that the employer’s conduct did not constitute an unfair labor practice.  Board Member Lauren McFerran dissented, arguing that the Board’s decision would allow employers to freely evade the terms of collective bargaining agreements.  Yesterday’s decision is only the latest addition to a steady drumbeat of pro-arbitration decisions in both the Board and the courts.

As Jared wrote yesterday, the Green New Deal has received a mixed reception within the labor movement.  Teen Vogue breaks down the tensions and synergies between the goals of labor unions and environmental organizations—and calls on labor leaders to see the current climate crisis as an issue of vital importance to poor and middle class workers.

Finally, following this week’s announcement that workers and labor organizations have filed multiple lawsuits against McDonald’s, thousands of McDonald’s workers have walked off the job in protest. Democratic presidential hopefuls have been eager to show their solidarity, with at least five candidates joining workers at rallies and pickets, and at least eleven others expressing support.  It seems that, at least among Democrats on the campaign trail, expressing solidarity with the American worker still carries some cachet.

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