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Dec. 9, 2023

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It’s nearly impossible for WA farmworkers to unionize. Here’s why that matters

3 Photos
Camilo Martin picks blueberries at the Coopertiva Tierra y Libertad farm Friday, July 7, 2023, in Everson, Wash. Farms and workers must adapt to changing climate conditions.
Camilo Martin picks blueberries at the Coopertiva Tierra y Libertad farm Friday, July 7, 2023, in Everson, Wash. Farms and workers must adapt to changing climate conditions. As Earth this week set and then repeatedly broke unofficial records for average global heat, it served as a reminder of a danger that climate change is making steadily worse for farmworkers and others who labor outside.(AP Photo/John Froschauer) Photo Gallery

SEATTLE — Jose Martinez isn’t one to give up a fight.

A longtime workers advocate, Martinez helped spur a state investigation into discrimination at Ostrom Mushroom Farms, a major Pacific Northwest producer, resulting in a $3.4 million settlement over findings that officials fired about 80% of its employees, mostly women, and replaced them with foreign workers under a visa that provides fewer labor rights.

By the time the Attorney General’s Office lawsuit settled, however, Ostrom had been sold to Canadian-owned Windmill Farms. Martinez was rehired by the new company, but he was let go shortly afterward in what he claims was a discriminatory firing.

Martinez continues to support a unionization push for his former colleagues — a task complicated by agricultural workers being excluded from federal union protections, and the absence of state union certification safeguards for such workers.

A majority of employees at the company’s farm in Sunnyside in Yakima County voted to unionize last year. But because farmworkers aren’t covered by the National Labor Relations Act, which lays out a legal framework for union recognition, it’s up to individual employers to choose whether to recognize union committees.

Ostrom did not. Windmill Farms, which purchased the company in February, has followed suit, claiming a union is unnecessary and refuting allegations of discrimination.

Martinez and his former colleagues have said their fight for union recognition isn’t over, however. Advocates continue to fight for union support, hosting weekly public events to increase the pressure on Windmill Farms leaders.

More than a dozen farmworkers and their proponents say that push is exceedingly difficult, largely because agriculture workers remain excluded from the National Labor Relations Act 88 years after Congress passed the legislation. The legislation regulates certification and penalizes companies that refuse to bargain in good faith with certified unions.

While Washington has regulations protecting farmworkers from retaliation over union organizing and activity, those seeking to unionize remain reliant on their employer’s willingness to recognize and bargain with union committees, as is the case in the vast majority of states nationwide.

“It’s entirely basically a voluntary process,” said Antonio De Loera-Brust, a United Farm Workers spokesperson.

Farmworker union committees here and largely across the country have no legal recourse, aside from appealing to their employer and the public, he said.

“Labor law can’t ever be based on employers doing the right thing,” De Loera-Brust said. “Some employers will. Some employers won’t.”

What happened with Ostrom?

Martinez had been working for Ostrom, cleaning and doing various jobs, for about a year when he said he began noticing discriminatory practices and worker safety violations.

“I told myself, ‘There’s no way we can allow this,’ “ said Martinez, who ultimately worked for Ostrom for a few years before being fired. “I’m not the kind of person to keep on walking with my head down.”

He reached out to the United Farm Workers union, which then contacted the state Attorney General’s Office. The agency launched an investigation in 2022, determining Ostrom fired over 140 employees, mostly women, and replaced them with foreign, mostly male workers under the H-2A visa program.

The findings prompted Attorney General Bob Ferguson to file a civil rights lawsuit against Ostrom last August. The lawsuit named only the company, not its owners, as has been the case in some litigation the office has filed against other Washington businesses. The agency declined to say why.

Months later, in February, Windmill Farms announced it had purchased Ostrom while the mushroom company remained embroiled in the lawsuit.

The Attorney General’s Office said in May it had resolved the litigation, ordering Ostrom to pay a $3.4 million fine. (The U.S. Department of Labor also fined the company over $74,000 in June for violating H-2A program requirements and recovered almost $60,000 in unpaid wages for 62 employees.)

Workers celebrated the lawsuit’s resolution and expressed their intent to continue pushing for a union. At the same time, the Canadian company vowed to hire local workers and tried to separate itself from the lawsuit and Ostrom itself.

Advocates and employees say problems persist under the new ownership.

Martinez — rehired as a mushroom picker after signing an arbitration agreement — was one of 11 workers Windmill Farms has fired under what De Loera-Brust said appear to be retaliatory circumstances. Four other employees told United Farm Workers they quit because of hostilities over union committee involvement, De Loera-Brust said.

Of 18 initial union committee members at Ostrom, five remain employed at Windmill Farms and three remain active with the committee, advocates report. United Farm Workers is exploring options for how to respond, De Loera-Brust said.

Windmill Farms CEO Clay Taylor declined to comment on specific terminations but said the company has not fired any employees over union activity. Taylor said company officials have “an excellent relationship” with employees and see “no need” for a union.

Martinez said workers’ efforts to unionize and advocate have been stalled by “anti-union” leadership and supervisors, however, and that many discriminatory Ostrom supervisors and top officials have remained with Windmill Farms.

Paula Nuñez, who’s involved in unionization efforts, said she was fired July 21 after three years working with Ostrom and Windmill Farms. She said she was told she was failing to meet an hourly 50-pound quota for pickers — mirroring the circumstances of two other union advocates, Gloria Solis and Roman Castillo Avila, who were fired despite years of work without complaints.

Windmill Farms workers say union proponents were chief among the many employees assigned to picking positions despite having never done the grueling work, essentially setting them up to fail. That was the case for Nuñez, Solis and Castillo Avila, who had previously worked in other, less physically demanding roles.

“It feels like a cover-up,” said Lucia Chavez, who was fired from Ostrom before the company was sold. “It’s like they look for any reason to let you go when you’re vocal about the union.”

Chavez remains unemployed and has found it difficult to come to terms with being fired after 45 years working in agriculture.

“I thought I’d retire there, but without a union, I wouldn’t consider going back,” she said.

Difficulties advocating for a unionized workforce

The National Labor Relations Act’s exclusion of agriculture workers was rooted in racism and has proven detrimental to farmworkers, an already vulnerable workforce, according to a federal history documenting farmworker struggle.

When the act passed in 1935, Black sharecroppers did most of the agriculture work in the South, Asian and Latino workers were most prominent in the West, and the Pacific Northwest’s Latino workforce would soon begin to grow.

Legislators wanted to continue allowing businesses to exploit and underpay farmworkers after a long history of having people who were enslaved work the fields, said Daniel Costa, the director of immigration law and policy research at the Economic Policy Institute.

Members of Congress who were focused on industrial interests argued that unions could threaten the nation’s food supply and that higher wages for workers would cause higher prices for consumers. That sentiment remains ingrained in many state laws, most notably in Oregon, which bans picketingat places where perishable crops are in harvest, with some exceptions.

Today, about 78% of agriculture workers identify as Hispanic and 70% are born in another country, mostly Mexico, according to the National Center for Farmworker Health.

Costa, who’s worked in farm labor policy for over a decade, said Congress doesn’t have an appetite to change the National Labor Relations Act exclusions, considering the influence of agriculture businesses, whose lobbyists contend they’re already paying too much to oversee regulations.

“That’s the type of lobbying that has gone on for many, many decades and continues to happen,” Costa said.

Even under the best conditions, it’s hard for workers to unionize, Costa said. “But without decent laws in place it may just make it impossible.”

Mike Gempler, executive director of the Washington Growers League, which lobbies on behalf of growers, said the nonprofit organization supports a state agricultural labor relations act because of the costs associated with more regulation.

“I don’t think they feel that there’s necessarily a need for it,” Gempler said, noting state lawmakers’ attempts at passing such a law in the 1990s fell through after negotiations with growers’ lobbyists.

While roughly a dozen states, including Washington, guarantee some collective bargaining rights for farmworkers, California has the strongest protections.

Farmworkers there fought for the right to bargain in the 1960s and ’70s, with some striking employees killed while picketing with the United Farm Workers. The Delano grape strikes — begun by Filipino field workers and later joined by Mexican farmworkers — started an agricultural labor rights movement near Bakersfield, Calif., that reached fields in the Yakima Valley and other parts of Washington.

In 1975, California established its Agricultural Labor Relations Act and Board to oversee the union certification and bargaining process for farmworkers in the absence of federal laws. New York passed similar legislation in 2019, requiring farms to recognize unions if the majority of their workers sign pro-union cards. Those states’ laws lay out a farmworker union certification process and ensure that if an employer ignores a union despite that certification, officials can require them to bargain in good faith.

Hawaii is the only other state with legal mechanisms for farmworker union certification.

“Unlike what has happened in the last year [in Washington], a company can’t just ignore what the workers have said they want without there being ultimately legal and financial consequences,” De Loera-Brust said of the other states’ protections.

The lack of such safeguards in Washington and elsewhere lead farmworker union organizers to turn to the court of public opinion.

That public pressure has helped farmworkers here unionize, said longtime advocate and retired lawyer Lupe Gamboa, referencing the boycott and publicity that helped workers at Woodinville’s Chateau Ste. Michelle winery win union certification in the 1990s.

Organizers hope similar tactics may further their cause today, though they say their efforts are usually met with silence or backlash from their employers.

In one recent example of public advocacy, University of Washington students in January formed a group to help United Farm Workers organizers campaign to unionize Ostrom.

Maya Cruz led efforts as a student organizer to remove products from Ostrom — and now Windmill Farms — from its main campus by sharing information about the lawsuit and ongoing union push with university dining services officials. She said officials now buy from Monterey Mushrooms, a unionized California company, showing that it’s feasible for large buyers to make the switch to union produce.

“I think it’s easy for us as students and as consumers to become disconnected with farmworkers,” Cruz said. “We forget that there are real people who provide the food for us and how they’re a vulnerable social group.”

Many farmworkers “treated as a separate caste”

Gamboa said Washington farmworkers have felt that kind of exclusion for decades.

He and his migrant farmworker family arrived in the Yakima Valley from Texas, where he was born, in 1948 — drawn to the region by promises of “good money and work,” he said. Gamboa recalls his father as being outspoken about worker rights and the inequality of federal law that didn’t protect he and his colleagues.

Gamboa was compelled from a young age to advocate for fellow farmworkers and as an adult began visiting farms statewide to teach colleagues about their rights and provide legal representation, leading to his 1971 arrest alongside Michael J. Fox, a lawyer who later became a King County Superior Court judge.

The state Supreme Court unanimously overturned their trespassing convictions two years later, cementing that labor camp residents have a right to receive visitors and information about community services.

Gamboa also helped organize the 1970 hop strikes in Yakima Valley, leading to the state’s first farmworker union election victory, which the hop ranch owners declined to recognize.

He said that while advocates have had recent victories with Washington farmworker overtime pay and rules for working during smoky and hot conditions, unionizing is a different beast.

The difficulties, he said, are compounded by employers’ influence with community leaders and politicians. “A lot of people don’t understand that.”

Growing up, Gamboa worked the fields himself and saw farmworkers treated as outcasts — not just because of their race but also because of their social class.

“That remains the case today, with many farmworkers being treated as a separate caste,” he said.

It’s especially true for a sizable population of Indigenous immigrant workers from Mexico and Central America who aren’t fluent in English or Spanish, said Edgar Franks, political director of Familias Unidas por la Justicia. Those communities have difficulties navigating the workplace and legal system in their languages, he said, and local assistance is virtually nonexistent.

Familias Unidas por la Justicia, a farmworker union based in Burlington, Skagit County, seeks to fill that void. Franks attributes advances in farmworkers’ rights to the work of fellow union leaders and advocates.

“Many people think it’s just their boss being a nice guy, but there is actually a lot of pushback and a lot of fighting and advocating on behalf of workers and unions.”

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