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Agricultural Labor Disputes Brent Searle The Oregon Department of Agriculture has provided mediation services for agriculture-related issues since 1990. Many other states started mediation programs around that time, some several years earlier, to assist farmers with financial problems during a severe down-turn in the agricultural economy. Today there are nearly 25 states with various types of programs that are utilizing mediation to assist in disputes relating to various types of agricultural issues. However, Oregon is the first state in the nation to apply mediation to agricultural labor disputes--a highly emotional and often poorly understood arena of labor concerns. Farm worker advocates have contended that farm workers are underpaid, live in unfit housing, are treated unfairly, and often exploited. Many farmers contend that they have good relationships with their employees, provide many extras that go unnoticed (free transportation, food, housing in some instances, etc.), and that the Legal Services Corp. , representing farm workers, takes on frivolous claims to harass employers and create an antagonistic atmosphere for political purposes. Farmers have spent thousands of dollars defending themselves in court when they feel they could have easily worked out disagreements with workers if given a chance. In 1996, the Oregon Legislature convened a working group from representatives of grower organization, legal representatives of farm workers, and other interested parties, including the Oregon State Bar. This group was encouraged to find an alternative to the costly and time-consuming legal remedies for farm labor disputes. The group discussed mediation as one alternative and approached the Oregon Department of Agriculture (ODA), inquiring about the use of its long-established mediation program. The group also solicited the involvement of Ken Pallack, an experienced mediator with in-depth knowledge of agricultural labor issues. Through a mixture of outside private donations, state grants, and in-kind contributions, the Oregon Farm Labor Mediation Project was born. A year later (1997), permanent funding was provided, and in 1999 a sunset date was removed from the program. The Farm Labor Mediation Project is a dispute resolution process for employment-related problems between farm workers and Oregon agricultural employers. The program provides a process allowing for informal settlement of claims through mediation. The project is based on the following principles: 1. Both grower and farm worker(s) have a mutual interest in resolving employment disputes locally in a speedy and inexpensive manner. 2. Mediation is confidential and informal; but, it is not intended to compromise the legal rights of either side. 3. Discussion of differences between parties can lead to a better understanding of both points of view and may help to prevent future disagreements from developing. 4. Mediation is a voluntary process; neither party may be forced to mediate any issue. Either party may withdraw from mediation at any time without further obligations. The mediation services may be used to resolve any alleged violation of law relating to wages, hours, employment terms, working conditions, housing conditions when housing is provided by the employer, or charges of unfair or illegal treatment. Workers and employers are encouraged to discuss directly with each other any work-related or housing-related dispute. If a problem is not resolved, either party, or his legal representative, may request mediation. In cases where a formal complaint is filed by a farm worker with Oregon Legal Services (or the Oregon Law Center), OLS will generally include in the demand letter (notice to employer outlining complaints) a statement offering the option to mediate the problem. OLS will place priority and emphasis on resolving a dispute through mediation before taking any legal action against an employer. However, OLS retains the right to initiate legal action if deemed in the best interest of its client(s). Legal representatives or the parties themselves can contact the Mediation Program Coordinator at the Oregon Department of Agriculture to initiate mediation. After application forms have been received from the parties, the Mediation Coordinator will assign a mediator to the case. Should either party have objections to the mediator assigned to the case, they may choose from other mediators on the panel of the Oregon Department of Agriculture’s Farm Mediation Program. The selection must be mutually agreeable to all parties. Scope of Issues for Mediation In preparation for mediation, the mediator will contact the parties to develop a written statement of issues to be resolved. The mediation will focus only on those issues in the written statement unless other issues are added at the mutual consent. Meeting with the Parties as Part of the Mediation The mediator may meet with the workers at the employee’s housing at times that do not interfere with work. The mediator may also meet with the employer at his home or other location. If the employee(s) reside in housing provided by the employer, visitation by the mediator to the housing will be without interference, oversight, or inquiry by the employer, supervisor, crew leader, or other agent of the employer. The mediator will advise the employer of his presence at the housing upon arrival or beforehand. Presence of Parties and Representation The mediator will arrange a time and place to meet that is mutually agreed upon by the parties. The sponsors of this project strongly encourage the participation and presence of employees and employers at the mediation session when at all possible. The mediator will encourage such participation. In unusual circumstances, alternative arrangements can be made (phone conference or legal representatives). The mediator may also discuss the problem with either party, or their representatives, over the telephone. Both parties will generally have legal counsel at the mediation. Because of the complexities of the issues involved in most agricultural labor disputes, parties are strongly encouraged to use attorneys and have counsel present at the mediation. Resolution & Agreement The mediator will serve as a neutral and impartial professional to help the parties attempt to reach a mutually satisfactory resolution of the dispute. Mediation sessions will be informal without deposition or other legal procedures. If the parties sign an agreement, it shall be a binding contract between them. A mediated agreement includes settlement of all claims agreed upon as outlined in the statement of issues to be resolved, except those specifically excluded. It is important to remember that the agreement is binding on the parties but may not affect a state or federal administrative action. However, the mediator, at the conclusion of a mediation session in which an agreement has been reached, will send a statement signed by the parties to state and federal agencies which have received a prior complaint, describing those issues which have been settled. If both parties agree, no such statement will be sent. Access to Information and Confidentiality In order to facilitate mediation, all parties are encouraged to share relevant information, such as payroll records, personnel files, and any other information related to the dispute. Mediation sessions are confidential settlement negotiations. According to ORS 36.205, all communications made in a mediation session are confidential and not admissible as evidence in any civil or criminal action without the written consent of the parties. The parties will not subpoena or otherwise require the mediator to testify or produce memoranda, work products, or other material contained in his case files. However, a mediated agreement is not confidential unless the parties agree otherwise in writing. Non-retaliation As a condition of participation in mediation, an employer must agree that no worker will be punished or barred from future employment on account of filing or pursuing a problem through mediation. The status quo of the worker will be maintained during negotiations and mediation, including employment and permission to live in employer provided housing as long as the type of work the employee was hired to do still exists and housing is open. Such permission can be denied if the worker’s conduct causes a substantial risk of property damage or physical harm to any person. Legal Considerations. No privileges will be waived by participation in a mediation session. Participation in the mediation program shall not create any legal obligations or liabilities except those specifically created in any agreement that may be reached through mediation. The parties may attempt mediation even if a lawsuit has already been filed. If an agreement is reached, the parties will execute appropriate settlement documents. Discussion: The framework outlined above has worked quite well for the program. Over the past three years the program has handled 37 agricultural labor cases: 27 have been mediated, and 24 of those cases have concluded in an agreement--a 89% settlement rate. One case closed before mediation without an agreement; four cases settled before mediation with agreements. Five cases are currently pending. One of the issues the program has had to deal with relates to who can be present during a mediation session and the surrounding issues of confidentiality. In a few cases, the farm workers claim to be members of a farm worker union and have requested that the union be present at the mediation, or that the confidentiality of the mediation be waived so that the farm workers could take any settlement offers to the union for review before final signature. State law on this is ambiguous. On the one hand, it appears quite straightforward-- (a) Mediation communications are confidential and may not be disclosed to any other person. (36.220(a)) On the other hand, it allows this exception: (b) The parties to a mediation may agree in writing that all or part of the mediation communications are not confidential. (36.229(b)) The department has maintained that the original discussions leading to this program by the various interest groups, including legislative members, was to create a dispute resolution forum between employers and employees -- not subject to the influence of outside parties, no matter how interested they may be in the case. In practice, that means we have strongly encouraged only the principal players at the table. Since both parties have legal representation, there is no disparity in bargaining position or imbalance of power. Waiving confidentiality or allowing outside parties to participate raises several questions about the integrity of the program, the willingness of parties to participate, the willingness of parties to be candid and open during mediation, and the underlying question of whether the process becomes de-facto collective bargaining, which does not now have a formal legal process in Oregon agriculture. The resolution of this situation is uncertain. Either party could opt not to participate in mediation -- the employer because of the uncertainty of the process without confidentiality, or the employees because they may not have the ability to consult with outside parties -- which would force the situation to federal court. This results in time-delays for all parties and additional costs to resolve the issues. Alternatively, the parties may choose to allow consultation with any outside party, retaining only the legal protection of mediation (materials/discussions cannot be used in later adjudicatory proceedings). This may open the Pandora box of enabling someone from the press or other outside organization to sit in on the mediation, making the process very difficult for the mediator, and presenting challenges of getting parties to speak candidly. A third option is for the ODA to establish, by rule, strict guidelines on who can sit at the table during mediation. However, this may have the same result in sending the case to court, since the process still remains voluntary and the parties can opt out at any time. In conclusion, the program has seen considerable success but still faces crucial challenges in keeping the participants focused on the intent of the process -- dispute resolution between private parties, not political posturing. (c) 2004 Oregon Department of Agriculture.
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15 November 2004