STATE OF WASHINGTON
EMPLOYMENT SECURITY DEPARTMENT
WORKFORCE INVESTMENT ACT
POLICIES AND PROCEDURES
DATE:  02-04-91 New
NUMBER:  4064

This document has been formatted for use on this web site. It contains hyperlinks that enable the user to jump directly to specific areas within the document or to related documents. The information and guidance it contains has not been revised. There are definitions for terms that may be unfamiliar. This communication applies only to ESD staff, however, Workforce Development Councils (WDCs) and partner agencies are welcome to use the information when developing local policies and procedures.

BACKGROUND | POLICY | PROCEDURES | DEFINITIONS | WEB SITE
REFERENCES | SUPERSEDES | DIRECT INQUIRIES TO

SUBJECT:  Labor Disputes Involving Temporary, Seasonal Agricultural Employment

ORIGINATOR:  WIA Title III (Wagner-Peyser) (Labor Exchange Unit)

BACKGROUND

Most labor disputes are easily identified because there is an obvious controversy between employees and an employer; i.e., the employees are refusing to work or the employer is refusing to allow the employees to work, and an association or union is representing the employees in an attempt to resolve the controversy.

Some labor disputes, however, are not so clearly identifiable as demonstrated by labor disputes involving temporary, seasonal agricultural employment in the harvesting of perishable crops.  In these instances, it is much more difficult to determine if there are actual labor disputes and whether or not job referrals can be made to the affected establishments.

POLICY

It is the policy of the Employment Security Department (ESD) that all staff remain impartial in dealing with agricultural employers, employees, and the employers' and employees' representatives.  Under no circumstances do staff express an opinion as to the merits of a labor dispute involving temporary, seasonal agricultural employment; nor are any recommendations or decisions made or influenced by the merits of such a labor dispute, as ESD cannot be concerned with such merits.  ESD's only concern regarding such labor disputes is in how they affect our ability to provide employment services to agricultural employers.  For example:

1. Job orders are not knowingly accepted when a strike, lockout, or other labor dispute involving temporary, seasonal agricultural employment is in progress, when the job is vacant because a former occupant is on strike or has been locked out, or when the filling of the opening is an issue in such a labor dispute.
      

2.  Referrals are not made when such referrals aid directly or indirectly in filling a job that is vacant because the former occupant is on strike, being locked out in the course of a labor dispute involving temporary, seasonal agricultural employment, or if the filling of the order is an issue in such a labor dispute.

In addition, any information gathered as a result of agricultural labor dispute fact-finding activities is considered confidential, for ESD use, and is only released in accordance with Policies and Procedures document number 0006, Request for Public Records/Disclosure and Privacy of Information and Records.

The following procedures provide guidelines in the notification and investigation of labor disputes involving temporary, seasonal agricultural employment in the harvesting of perishable crops and the resulting job order-taking and selection and referral activities that are allowed.

NOTE:  The procedures only apply to the providing of employment services and do not reflect established labor dispute procedures of the UI Division.

Legal Requirements Involved | Detection, Notification, and Investigation
Initial Notification | Lead Agricultural Regional Director Action
Summary of Responsibilities | Action Required following Final Determination
Referral of UI Claimants to Agricultural Job Openings

Legal Requirements Involved

The Wagner-Peyser Act authorizes the U.S. Secretary of Labor to adopt regulations necessary to carry out its provisions.  The federal regulations pertinent to providing employment services in labor dispute situations are contained in 20 CFR, Part 652.9 which reads as follows:

"Labor Disputes"

(a) State agencies shall make no job referral on job orders which will aid directly or indirectly in the filling of a job opening which is vacant because the former occupant is on strike, or is being locked out in the course of a labor dispute, or the filling of which is otherwise an issue in a labor dispute involving a work stoppage.

(b) Written notification shall be provided to all applicants referred to jobs not at issue in the labor dispute that a labor dispute exists in the employing establishment and that the job to which the applicant is being referred is not at issue in the dispute." 

Subparagraph (a) prohibits referrals under specific conditions.  Subparagraph (b), however, permits referrals even when there is a labor dispute if the job is not at issue in the dispute, but requires that the individual being referred be given written notice of the dispute, and be advised that the job is not at issue in the dispute.

Detection, Notification, and Investigation of Existence of a Labor Dispute Involving Temporary, Seasonal Agricultural Employment

Each local service delivery site maintains information concerning the existence of labor disputes involving temporary, seasonal agricultural employment in the area served.

WAC 192.12.030 (5) requires that employers report strikes or lockouts that result in a stoppage or curtailment of activities to the nearest "employment office"; however, this rarely occurs.  Additionally, this provision alone does not assure that all necessary information is available when needed. 

Further, because of the high employee turnover and unique nature of temporary, seasonal agricultural employment, it is highly unlikely that such employer reports will be made.

Possible labor disputes usually come to ESD's attention in several ways, including:

1. A report by a referred worker that picket lines are present.
      

2. A media report of a strike or lockout.
      

3. A contact initiated by a news media representative.
      

4. A contact initiated by a labor organization.
      

5. A contact by farmworkers with a Migrant and Seasonal Farmworker Outreach Worker.
      

6. A personal observation by an ESD employee.

ESD responds to a labor dispute involving temporary, seasonal agricultural employment, whether or not it is officially or properly reported.  When the local service delivery site learns of a possible dispute, local management notifies the Lead Agricultural Regional Office. The Lead Agricultural Regional Director must then make several critical operational decisions including:

1. Is it lawful to refer workers to job openings listed by the employer?
      

2. If so, are notices to referred applicants regarding the labor dispute required?
      

3. Is it permissible to refer to a different work site not affected by the dispute?

These decisions regarding potential employment service referrals are made in each instance of a possible labor dispute involving temporary, seasonal agricultural employment.  To support these decisions, the Lead Agricultural Regional Director asks local management to obtain certain information from the employer, or an authorized representative, and the employees or their representative.

NOTE:  It is not unusual for agricultural employers to be involved in a number of different agricultural related activities.  This may involve the cultivation, harvesting, and processing of a number of different crops and products dispersed over a large geographical area.  Job orders may be received from the same employer for cultivation work in one location, harvesting work in another, and processing work in a third location.  In addition, the employer may have other business names under which it operates.  A determination as to which occupations, worksites, and business names are involved in the labor dispute is based on information obtained from the employer and employees or their representative.

The Lead Agricultural Regional Director will ask local management to obtain the following information by telephone, if at all possible in order to prevent any appearance of partiality which could result from conducting on-site visits:

1. A statement of the cause of, or basis for, the dispute; 
      

2. The names of the employers (or single employer) that are involved;
      

3. Any other employer business names that are involved, if any;
      

4. The specific occupations or jobs affected by the dispute;
      

5. The name of any worker representative's organization(s); 
      

6. The basis of the organization's authority to represent the workers;
      

7. The number of workers with the employer(s) represented by the organization;
      

8. The organization's affiliation and status with other labor unions or worker representative's organizations; and
      

9. The location of the worksite or sites, and the status of the dispute at each worksite.

Initial Notification

The following procedure is followed when a possible, actual, or pending labor dispute involving temporary, seasonal agricultural employment is detected:

1. Local management immediately notifies the Lead Agricultural Regional Office.
     

2. The Lead Agricultural Regional Director then:
     

   1. Immediately notifies the WorkSource Operations Division's Agricultural Recruitment and Support Unit and the UI Division's Labor Liaison by telephone; and

Lead Agricultural Regional Director Action Following Initial Notification

If it is immediately evident that there is a labor dispute in progress, the Lead Agricultural Regional Director instructs the local service delivery sites involved to make no referrals to any job openings at issue in the dispute.  If such a determination cannot immediately be made based on the information available, employment service job referral activity is suspended until sufficient fact-finding has been performed to support an initial assessment about the existence of a labor dispute.  Fact-finding is completed by the local service delivery site and an initial determination made by the Lead Agricultural Regional Director no later than close of business the day following the day on which a potential labor dispute was detected.  Employment services continue to be suspended if adequate information to support the existence of a labor dispute cannot be obtained from the employer, but has been reported by the employees or their representative.

NOTE:  The Lead Agricultural Regional Director will be responsible for ensuring that the time frames related to fact-finding and initial determination are observed.

The mere presence of signs and/or pickets may be informational in nature, and not evidence that an actual labor dispute is in progress.   As previously stated, ESD remains impartial when dealing with employers, employees, and employee representatives.  However, the withholding of employment services, particularly when the job openings involve the processing or harvesting of perishable crops, can have serious economic consequences to the employer, and such withholding of employment services is appropriate only if all conditions constituting a labor dispute have been met.  Therefore, it is imperative that accurate fact-finding be undertaken immediately so that employment service job referral activity may be resumed if it is determined that a labor dispute does not exist.

NOTE:  The Lead Agricultural Regional Director seeks consensus from the WorkSource Operations Division's Assistance Commissioner before making a final determination.

Summary of Responsibilities

1. Local management - Detection, Notification, and Investigation:

2. Lead Agricultural Regional Director - Initial Assessment, and Initial and Final Determination:
      

   1. Immediately inform the WorkSource Operations Division's Agricultural Recruitment and Support Unit and the UI Division's Labor Liaison of the possible labor dispute.
         

   2. Ask local management to obtain answers to the following three questions in order to determine the status of work in progress at the work site:
         

      • Have workers left the job site in furtherance or support of a labor organization, or the objective of a labor organization?
           

      • Have former employees, or current employees in layoff status, refused to accept or perform work at the job site? 

        NOTE:  This differs from UI procedures.

      • Have potential new workers refused to accept work or to cross an established picket line to apply for available work?

        NOTE:  This differs from UI procedures.

   3. If a "yes" is received to any of the above questions and it is determined a controversy exists based on the conditions listed in the definition, it is reasonable to assume a labor dispute exists for employment service purposes and the local service delivery sites involved are instructed to suspend all job referral activity.
         

   4. Ask local management to perform the necessary fact-finding for initial assessment of the status of the possible dispute.  This requires obtaining information to satisfy the nine items previously listed. 
         

   5. If the initial assessment is that a labor dispute exists, the Local service delivery site involved is instructed to continue the suspension of referrals to the openings at issue, and the listing employer is notified of the initial determination.
         

   6. Share all information obtained through the fact-finding process with the WorkSource Operations Division's Assistance Commissioner.  Consensus must be sought before a final determination is made.
         

   7. Make a final determination of ESD policy and action related to providing employment services to, or withholding employment services from the employer and notify the local service delivery sites and employer of the final determination.
         

   8. Notify the Commissioner's Office of the final determination.

Action Required Following Final Determination 

1. If the Lead Agricultural Regional Director determines that no bona fide labor dispute exists, resume normal employment service activity with all employers who had been designated as parties to the original alleged dispute; however, if there are informational pickets, applicants are informed of their presence.
      

2. If the Lead Agricultural Regional Director determines that a bona fide labor dispute does exist:
   

   1. Make no referral that directly or indirectly aids in filling a job:
         

      • That is vacant because the former occupant is on strike or is being locked out, or
           

      •  The filling of which is otherwise at issue in the labor dispute.
            

   2. Referrals are made if the establishment is involved in a labor dispute, but the particular job opening listed is not, provided the applicant is informed in writing that a labor dispute is in progress.

Referral of UI Claimants To Agricultural Job Openings

The policies and procedures relevant to UI eligibility are described in the Manual of Field Benefit Functions, four (Part V) and the Benefit Policy Guide. 

DEFINITIONS

Labor Dispute - The following definition is used as a guideline for determining the existence of a labor dispute involving temporary, seasonal agricultural employment and for deciding whether or not employment services are allowed:

". . . any controversy concerning terms or conditions of 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 or not the disputants stand in the proximate relation of employer or employee . . ."  (NLRB, ETA Handbook 373).

The key word in this definition is "controversy."  The presence of pickets at a work site implies a controversy, but there are circumstances where pickets are present and there has been no actual communication or attempted negotiation between a labor organization or group of workers and an employer or business.  For example, the first contact between the business and the labor organization may be the placement of informational pickets.  Action of this nature does not constitute a labor dispute.

In fact, a controversy constituting a labor dispute involving temporary, seasonal agricultural workers in the harvesting of perishable crops exists, relative to providing employment services, only when all of the following conditions are present:

1. There is an issue concerning terms and conditions of employment;
      

2. A union or group of workers in a concerted action has communicated a demand or demands concerning terms and conditions of employment to the employer or the employer's authorized representative; and

   NOTE:  This differs from UI procedures.
      

3. The employer acknowledges receiving such a demand or demands from a union or group of workers, or there is evidence which confirms that the demand or demands have been conveyed to the employer.

   NOTE:  This may differ from UI procedures.

WEB SITE

http://www.wa.gov/esd/policies/

REFERENCES

The Workforce Investment Act (WIA) of 1998, Public Law 103-152 (WorkSource); the Wagner-Peyser Act as amended by WIA (Labor Exchange); the Code of Federal Regulations (CFR), Title 20, Chapter V, Part 652 (Labor Exchange); and the Washington Administrative Code (WAC), Chapter 192.12.030 (5).

SUPERSEDES

None

DIRECT INQUIRIES TO

Lali Menchaca
Employment Security Department
Agricultural Recruitment and Support Unit
WorkSource Operations Division
P.O. Box 9046, MS 6000
Olympia, WA 98507-9046
E-mail:  lmenchaca@esd.wa.gov
Telephone: (360) 438-3285
Fax: (360) 438-4014
TTY: (360) 438-3167 (temporarily)

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