In summary

AB 616 will go a long way toward ensuring that farmworkers can decide, by free and fair elections, whether they wish to join a union.

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By Catherine L. Fisk, Special to CalMatters

Catherine Fisk is the Barbara Nachtrieb Armstrong Professor of Law at UC Berkeley Law, where she teaches and writes on labor law,

Assembly Bill 616 would grant to California farmworkers the same rights to vote by mail in union certification elections that all California voters enjoy in political elections. 

The legislation will fix a major weakness in California’s Agricultural Labor Relations Act of 1975 and go a long way toward ensuring that farmworkers can decide, by free and fair elections, whether they wish to join and bargain with a union. 

Under current law, when a sufficiently large group of farmworkers presents a petition to the Agricultural Labor Relations Board requesting the board to conduct an election to determine whether they wish union representation, the board schedules an election to be held at a polling place, usually somewhere on or near the grower’s property. 

Farmworkers must go to the poll to cast their vote. Farmworkers who are illiterate, who fear they will lose their job if the employer sees them entering the polling place, or who cannot manage to get to the poll, lose their right to a democratic process for choosing union representation. 

AB 616 would allow farmworkers to vote by filling out a ballot at home. Just like the ballots California voters are casting in the ongoing gubernatorial election, the ballot will identify what the employee is voting on, how the employee votes, the employee’s name and signature, and the date. 

AB 616 gives employees the right that all California voters enjoy to have assistance in deciphering and casting their ballot. Anyone assisting or witnessing the person filling out the ballot must sign it too, so that the Agricultural Labor Relations Board can investigate claims of voter intimidation or misinformation. 

The completed ballot must be placed in a sealed envelope provided by the Agricultural Labor Relations Board and signed by the voter. That way, no one can tamper with the ballot after it leaves the employee’s hands. And, just like in the ballots Californians are casting now, completed ballots can be mailed or dropped off at board offices. The board opens the envelopes, counts the ballots, rules on any claims that certain ballots are invalid and determines a winner.

The main difference between what AB 616 requires and all other California elections is that in order for a union to win the election, it must receive votes of a majority of all the employees, not a majority of the votes cast. This means that no farmworker will gain union representation unless a majority of all the employees at that farm want it. Any farmworker who prefers no union can vote against unionization or just refuse to vote.

Critics of AB 616 have said that the vote by mail procedure allows voter fraud. But the requirement that both the worker and anyone assisting the worker sign the ballot is protection against fraud because it allows the board to talk to the worker to be sure the vote represents their free and uncoerced choice. 

Critics have also said that AB 616 would turn all elections into a card check process, which employers criticize as allowing union representatives or pro-union workers to intimidate voters. But AB 616’s vote by mail process requires the board to distribute and track ballots, to verify the signatures and to investigate claims that any ballot does not reflect the free choice of the voter. 

And AB 616 provides for a hearing in front of a judge and an opportunity to appeal the judge’s ruling on contested ballots. Misconduct in casting or collecting ballots is a basis to set aside an election.

Farmworkers deserve democratic processes in union elections. AB 616 grants them.

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