Sample J46 from Irving Perluss, "Agricultural Labor Disputes in California - 1960" Employment Security Review, 28: 1 (January, 1961), 5-7. A part of the XML version of the Brown Corpus2,020 words 30 (1.5%) quotes 10 symbolsJ46

Irving Perluss, "Agricultural Labor Disputes in California - 1960" Employment Security Review, 28: 1 (January, 1961), 5-7.

Typographical Error: sucess [0230] 0010-1870

Header auto-generated for TEI version

The vast Central Valley of California is one of the most productive agricultural areas in the world . During the summer of 1960 , it became the setting for a bitter and basic labor-management struggle .

The contestants in this economic struggle are the Agricultural Workers Organizing Committee ( AWOC ) of the AFL-CIO and the agricultural employers of the State . By virtue of the legal responsibilities of the Department of Employment in the farm placement program , we necessarily found ourselves in the middle between these two forces . It is not a pleasant or easy position , but one we have endeavored to maintain . We have sought to be strictly neutral as between the parties , but at the same time we have been required frequently to rule on specific issues or situations as they arose .

Inevitably , one side was pleased and the other displeased , regardless of how we ruled . Often the displeased parties interpreted our decision as implying favoritism toward the other . We have consoled ourselves with the thought that this is a normal human reaction and is one of the consequences of any decision in an adversary proceeding . It is disconcerting , nevertheless , to read in a labor weekly , `` Perluss knuckles down to growers '' , and then to be confronted with a growers' publication which states , `` Perluss recognizes obviously phony and trumped-up strikes as bona fide '' .

For a number of years , there have been sporadic attempts in California to organize farm workers . These attempts met with little sucess for a variety of reasons . They were inadequately financed , without experienced leadership , and lacked the general support of organized labor as a whole . This past year the pattern has been different : The organizing program had the full support of the AFL-CIO , which supplied staff and money to the AWOC , as well as moral support . Leadership was experienced and skillful , and financial resources were significant . Regardless of where personal sympathies may lie as between the parties , failure to recognize these changed conditions would be to ignore the facts of life .

As a result of these changed conditions , the impact of the organizational effort on agricultural labor-management relations has been much greater than in the past . The AWOC has been able to employ the traditional weapons of labor -- the strike and the picket line -- with considerable success , particularly in the area of wages .

By the very nature of the situation , it is the union which has been able to select the time and place to bring pressure upon management . To date , at least , the strategy of the AWOC has been selective ; ; that is to say , to concentrate on a particular crop or activity in a particular area at a strategic time , rather than any broadside engagement with management throughout an area or the State .

Primarily , we became involved in these disputes because of our referral obligations under our farm placement program . Normally , because agricultural labor is not covered by unemployment insurance , we would not expect any issues to arise regarding benefit payments under the trade dispute provision of the Unemployment Insurance Code , although such a situation is quite within the realm of possibility . But the current issues arose out of the Wagner-Peyser Act concerning referrals to an establishment where a labor dispute exists , and out of Public Law 78 and the Migrant Labor Agreement if Mexican nationals were employed at the ranch .

Most of us remember and think of the Wagner-Peyser Act in its historical sense , as a major milestone in the development of public placement services . Infrequently do we think of it as a living , continuing , operating control over the system . However , when labor disputes arise , its provisions come clearly into play . California has accepted the provisions of that Act ( as have all other States ) by enacting into our Code ( Section 2051 ) a provision that

The State of California accepts the provisions of the Wagner-Peyser Act , and will observe and comply with the requirements of that act .

With respect to labor disputes , the Wagner-Peyser Act states only ,

In carrying out the provisions of this Act , the Secretary is authorized and directed to provide for the giving of notice of strikes or lock-outs to applicants before they are referred to employment .

Other provisions of the Act empower the Secretary to adopt regulations necessary to carry out its provisions , and he has done so . The pertinent regulation for our purposes is Section 602.2 ( , ) , as follows :

Referrals in labor dispute situations . No person shall be referred to a position the filling of which will aid directly or indirectly in filling a job which ( 1 ) is vacant because the former occupant is on strike or is being locked out in the course of a labor dispute , or ( 2 ) the filling of which is an issue in a labor dispute . With respect to positions not covered by subparagraph ( 1 ) or ( 2 ) of this paragraph , any individual may be referred to a place of employment in which a labor dispute exists , provided he is given written notice of such dispute prior to or at the time of his referral .

In analyzing this regulation , let us take the last sentence first . It permits referrals under certain circumstances even when there is a labor dispute , provided the individual is given written notice of such a dispute . Assume , for example , a situation where a farm has a packing shed and fields . The packing shed workers go on strike . There is no dispute involving fieldwork . We concluded that we may refer workers to the fieldwork ( but not the packing shed work ) provided we give them written notice of the packing shed dispute . So far , no troublesome cases have arisen under this provision .

It is the first part of the Regulation that is currently at issue . Note that it prohibits referrals under either condition ( 1 ) or condition ( 2 ) . Employer representatives have contended that the Secretary has gone beyond his authority by such a prohibition , on the grounds that the Wagner-Peyser Act requires only written notice to the prospective worker that a dispute exists .

Into court The matter got into the courts this way : One of the early strikes called by the AWOC was at the DiGiorgio pear orchards in Yuba County . We found that a labor dispute existed , and that the workers had left their jobs , which were then vacant because of the dispute . Accordingly , under clause ( 1 ) of the Secretary's Regulation , we suspended referrals to the employer . ( Incidentally , no Mexican nationals were involved . ) The employer , seeking to continue his harvest , challenged our right to cease referrals to him , and sought relief in the Superior Court of Yuba County . The court issued a temporary restraining order , directing us to resume referrals . We , of course , obeyed the court order . However , the Attorney General of California , at the request of the Secretary of Labor , sought to have the jurisdiction over the issue removed to the Federal District Court , on grounds that it was predominantly a Federal issue since the validity of the Secretary's Regulation was being challenged . However , the Federal Court held that since the State had accepted the provisions of the Wagner-Peyser Act into its own Code , and presumably therefore also the regulations , it was now a State matter . It accordingly refused to assume jurisdiction , whereupon the California Superior Court made the restraining order permanent . Under that order , we have continued referring workers to the ranch . A similar case arose at the Bowers ranch in Butte County , and the Superior Court of that county issued similar restraining orders .

The growers have strenuously argued that I should have accepted the Superior Court decisions as conclusive and issued statewide instructions to our staff to ignore this provision in the Secretary's Regulation . I cannot accept that view , either as a lawyer or as an administrator .

Legal considerations First , let us examine briefly some of the legal considerations involved . It is an accepted juridical principle in California that a Superior Court decision does not constitute a binding legal precedent . It is conclusive , unless appealed , only upon the particular parties to the particular action which was heard . It is not binding upon another Superior Court , which could rule to the contrary . Only when a decision is rendered by the District Court of Appeal ( or , of course , the Supreme Court ) is a binding precedent established . In that event , we can correctly say that we have received an authoritative interpretation of the matter , and one which we can follow statewide with confidence that the policy will not be overthrown in other Superior Courts .

But over and beyond the compelling need for a binding precedent decision , I am convinced that the decisions of the Superior Courts which in effect nullify the Secretary's Regulation are not a correct interpretation of the Secretary's power under the Federal law . I believe I am in good company in this view . The Attorney General of California concurs in this interpretation and has filed an appeal from these decisions to the District Court of Appeal . The Attorney General of the United States , in considering the power of the Secretary to issue similar regulations under the Wagner-Peyser Act relating to the interstate recruitment of farm workers , has rendered an opinion sustaining his authority . Further , and as an evidence of legislative intent only , the Senate of the United States recently defeated by a substantial majority the `` Holland Amendment '' to the Fair Labor Standards Act , which would have specifically limited the regulatory authority of the Secretary in these matters .

Next , let us consider briefly the program and administrative implications of a failure on our part to pursue our appeals .

There is far too much at stake for all of the parties concerned to leave the matter hanging in midair . The ramifications of the issue are enormous . A decision to refer workers to jobs vacant because of a strike would have to be applied equally to nonagricultural situations , and might in effect place the public employment services in the position of acting as strikebreakers . The public interest is so dominant in such an issue that I cannot be so presumptuous as to attempt to settle it by an administrative order based upon conclusions reached in a summary action in one or two Superior Courts in the State . It is an issue which may well reach the Supreme Court of the United States before judicial finality is achieved .

As an administrator , I cannot place the Employment Service in California in jeopardy of being out of compliance with the Federal laws by my failure to pursue the avenues of appeal open to me . To have applied statewide the decisions of the two cases heard in Superior Court , in my opinion , would have placed us clearly out of compliance with the Wagner-Peyser Act and would have immediately opened the way for the Secretary of Labor , were he so inclined , to notify the Governor of such noncompliance , set a date for hearing , and issue his finding . The impact of noncompliance under the Wagner-Peyser Act is clear : the withdrawal of some $11 million a year of administrative funds which finance our employment service program or , as a corollary , the taking over by the Federal Government of its operation .

Thus far , the cases which have come before the courts have involved only the issue of referral where the job is vacant due to a strike -- condition ( 1 ) in the Regulation of the Secretary . None has yet arisen under condition ( 2 ) , relating to referral to jobs `` the filling of which is an issue in a labor dispute '' .

Here the problem is essentially one of defining the word `` filling '' . Should it be defined in a narrow sense to include only such elements as job specifications , union membership , union jurisdiction , and the like ? ? Or should it have a broader connotation of including wage demands and other factors not necessarily associated with the mechanics of `` filling '' the job .

Because of the uncertainty of this definition , I solicited the interpretation of the Secretary of Labor . He has advised me that the narrower interpretation is the proper one ; ; that is , that if wages , for example , is the only issue in a labor dispute , and no workers have left their jobs because of the dispute , we may continue to make referrals .