agricultural personnel management program university …howardrr/pubs/lmd/lmd.3.2.fall93.pdf ·...

Fall 1993 1

▲Volume 3, Number 2 Fall 1993

Labor Management DecisionsAgricultural Personnel Management Program University of California Division of Agriculture and Natural Resources

1 Cal Labor Code sec. 6401.7, as amended by S.B.198.2 Cal. Labor Code sec. 6314.1

Although farms have long been among the mostdangerous of workplaces, managers of farm labor to-day are finding more reasons than ever to do some-thing about it. Skyrocketing, experience-rated workers’compensation premiums as well as laws that mandateeffort to prevent injury and illness have especially raisedsafety consciousness within the agricultural commu-nity. A recommended element of programs designedto improve safety in operations, however, may intro-duce unwitting employers to risks in quite anotherrealm.

Safety Committees

Part of many injury prevention programs is a safetycommittee. In 1990, California Senate Bill 198, requir-ing all employers to establish and document an Injuryand Illness Prevention Program, added to the need forcommunicating with employees about safety. The Cali-fornia Labor Code1 now specifically states that a jointemployer-employee safety committee can be instrumen-tal in meeting the obligation to communicate, and iteven outlines the duties of such a committee. It alsoenables the Department of Industrial Relations (DIR) toadopt procedures for nonunion employers to select em-ployee representatives to the committee. A related areaof state law authorizes DIR to require certain employersin high-hazard industries to establish joint labor-man-agement health and safety committees, in order to helpcontrol workers’ compensation costs.2

The workplace safety committee (SC) is by no meansa new invention. Cooperative management-employee

Might Your Farm Safety CommitteeBe a “Labor Organization”?

Valerie J. Horwitz and Howard R. Rosenberg

In This Issue :

Might Your Safety Committee Be a“Labor Organization”? ........................ 1

Health and Safety TrainingNeeds to Be Specific ............................ 6

Workers’ Compensation Reformof 1993 ................................................... 9

California Follows Most of FederalFamily and Medical Leave Act .......... 13

New EPA Standard IncludesHeat Stress Management .................. 15

Farm Worker Message Service ............. 16Resources ............................................... 17Events ...................................................... 18No Change in Minimum Wage ............... 19Contributors ............................................ 20

2 Labor Management Decisions

groups have existed in unionized and nonunion com-panies for decades, and worker safety has been a com-mon if not the central focus for them.3 Currently, as inthe past, safety committees serve in many firms as two-way communication devices, both disseminating com-pany policies and developing plans for additional policyor procedures in the interest of safety.

While safety committees are generally formed withthe aim of reducing workplace accidents and occupa-tional illnesses, they may also yield ancillary benefits inmorale, workforce stability, insurance loss control, andavoidance of facility down time. The best of safetycommittees in industry naturally evolve into forumsfor constructive discourse on an array of topics—suchas the flow of work, capital expenditures, and equip-ment maintenance—that affect various dimensions ofworklife, product quality, and operational cost. Theworst, however, waste time, money, and morale afterbuilding up employee expectations that get dashed bymanagement inaction on ideas duly rendered by thecommittee.

State and federal laws that require or encouragesafety committees imply to employers that they are agood thing, even though beneficial results from themare by no means assured. And court decisions in recentcases reveal another, potentially steep, downside to SCs.They strongly suggest that existing public policies thatpromote formation of these committees may conflictwith others that ensure employee rights to organize.With the best of intentions, an employer who estab-lishes an SC may be creating and illegally dominating alabor organization.

The Makings of a Labor Organization

At what point does an employer-employee safetycommittee lose its status as a communication deviceand become a labor organization? This question hasbeen visited several times in the past year by theNational Labor Relations Board (the Board), and em-ployers are likely to find the results confusing, if notalarming.

A group may meet the legal definition of labor organi-zation even if it has no formal structure, elected officers,constitution, bylaws, regular meetings, initiation fees,or dues.4 Following almost identical language of the

National Labor Relations Act (NLRA), the CaliforniaAgricultural Labor Relations Act (ALRA) states that alabor organization is “. . . any organization of any kind,or any agency or employee representation committeeor plan, in which employees participate and which ex-ists, in whole or in part, for the purpose of dealing withemployers concerning grievances, labor disputes, wages,rates of pay, hours of employment, or conditions ofwork for agricultural employees.” In deciding whetheran entity is a labor organization, the national Board hasbeen specifically considering two key standards drawnfrom this definition: (1) “dealing with” and (2) “em-ployee representation.”

“Dealing with” is the exercise of any bilateral mecha-nism in which a group of employees, over time, makesproposals to management and management responds.It thus includes, but is not limited to, collective bargain-ing, wherein workers and managers seek to compro-mise on their differences and put the results into awritten contract. A pattern or practice of back and forthcommunication about proposals establishes the elementof dealing; an ad hoc proposal and response, however,do not. A group that exists only for the purpose ofbrainstorming and makes no proposals is not dealingand is therefore not a labor organization. Nor is agroup that merely provides information to the employer,or one that is used in connection with a suggestion boxsystem.

The Board draws a clear line on this issue in a caseinvolving the DuPont company, in which employer rep-resentatives and employees both sat on a committee,and any proposal made by the committee had to be byconsensus. The Board stated:

[W]here management members of the committee discussproposals with employee members and have the power toreject any proposal, we find there is “dealing.” The merepresence of management members on a committee wouldnot necessarily result in a finding that the committee dealswith the employer. For example, there would be no “deal-ing with” management if the committee were governed bymajority decision-making, management representativeswere in the minority, and the committee had the power todecide matters for itself, [or…] if management representa-tives participated on the committee as observers or facilita-tors without the right to vote on committee proposals. If acommittee exists for the sole purpose of imparting infor-mation, [or…] planning educational programs there wouldbe no dealing.

The second key attribute of a labor organization isthat it is designed or perceived to be representative ofnon-member employees. The Board has found em-ployee representation to exist when employees felt theycould use the members of the committee as a liaisonwith management, or management regarded the views

3 Various types of cooperative efforts that involve jointcommittees are discussed in Michael H. Schuster, Union-Man-agement Cooperation: Structure-Process-Impact, The W. E. UpjohnInstitute, 1984.4 Electromation, Inc., and International Brotherhood of Teamsters,Local Union No. 1049, AFL-CIO, 309 NLRB No. 163 (1992).

Fall 1993 3

expressed by committee members as representative ofnon-member employees.

In one case, an employer wrote and handed out tocommittee members a summary of committee meetingdiscussion, and then encouraged them to discuss it withother employees in order to “benefit from their thoughtsand ideas.”5 This clearly reflected management’s atti-tude that the committee represented the other employ-ees. In another case where the element of representa-tion was found, employee committee members hadmade continual efforts on behalf of the whole work-force to increase safety incentive bonuses, and theyeven sent a message through electronic mail invitingco-workers to contact the committee about any safetysituation.6

In contrast, representation was not found to exist in asituation where the employer held a safety conferenceat which it sought suggestions and ideas from the em-ployees, but did not respond directly to proposals. Inannouncing the conference, the employer had informedemployees that 30 volunteers would attend the firstmeeting, and that another safety conference would beheld in the near future for all employees. Neither ses-sion was to be representational in nature. In its deci-sion, the Board referred to “committees of the whole,”suggesting that if every person in the workforce is in-volved directly, no one is being “represented.”7

Employer Domination

If a safety committee is legally a labor organization,the employer’s relationship with it is specially con-strained by law. The NLRA and the ALRA expresslyprohibit employers from dominating or interfering withthe formation of any labor organization or contributingfinancial or other support to it. They make it unlawfulfor employers to create, administer, and essentially de-termine the structure, function, or survival of a labororganization.

The very illegality of an employer dominating a unitwithin its own organization may seem curious, espe-cially in workplaces where joint safety committees aremore effective than unions could be in actually provid-ing for employee safety. But existing law still follows

the orientation of Senator Wagner, author of the origi-nal NLRA, who stated that, “Genuine collective bar-gaining is the only way to attain equality of bargainingpower....The greatest obstacles to collective bargainingare employer-dominated unions. Such a union makes asham of equal bargaining power....Only representativeswho are not subservient to the employer with whomthey deal can act freely in the interest of employees.”8

Existence of domination is determined by the totalityof circumstances under which a committee operates,not by any single act or omission. A violation may befound regardless of whether the employer shows ani-mosity toward unions or has a specific motive to inter-fere with workers’ rights. While not at all necessary toa finding of unlawful domination, the presence of aunion representing employees can easily factor into it.

In the DuPont case, the Board saw a strong anti-union sentiment in the actions of management. Em-ployees had been represented by a union at the time ofthe violation. The company formed six safety commit-tees and one fitness committee over a 30-month period,during which the union took increasing interest in em-ployee safety. Toward the end of this time, the unionunsuccessfully proposed the establishment of a jointmanagement-labor safety committee to discuss or bar-gain all health and safety issues, to investigate injuriesand accidents, and to determine how to avoid futuremishaps. DuPont rejected the proposal and failed tomake any counter offer on the idea of a joint safetycommittee.

In the meantime, management allowed the commit-tees it had formed to handle not only matters clearlywithin the scope of mandatory collective bargainingbut also other issues that the union was already work-ing to resolve. Almost every committee establishedcash incentive awards for safe practices. One commit-tee secured $10,000 from the employer to sponsor eventsfor employees. Another arranged for improvements inhandling welders’ protective clothing, and it got a new,better ventilated welding shop created after the em-ployer had denied the union’s repeated attempts toachieve the same end.

The company had initiated all seven committees,provided the meeting places, equipment, and supplies,and paid all expenses of the committees. Members ofmanagement participated in all of them. Managementdecided from what departments to invite employees,and it chose from among those willing to serve. Em-ployees received their regular wages for time spent in

8 Legislative History of the National Labor Relations Act of 1935,15-16 (GPO 1949).

5 Salt Lake Division, A Division of Waste Management of Utah,Inc. and International Brotherhood of Teamsters, Local No. 222AFL-CIO, 310 NLRB No. 149 (1993).6 E.I. DuPont de Nemours & Co., 311 NLRB No. 88 (1993). Thiswas especially egregious, as there was already a collective bar-gaining agreement in effect, and employees were being dis-couraged from going to the union with safety concerns.7 DuPont, supra.


the meetings, and their terms of service were indefinite.Use of electronic mail was permitted to distribute com-mittee literature and notices, but not for any unionliterature or notices. The committees could have beenchanged or abolished at any time at the will of theemployer.

Based on these facts, the Board held that the com-mittees were labor organizations unlawfully dominatedby the employer. By dealing directly with the commit-tees, bypassing the union that was certified to repre-sent workers, the company violated the employees’right to representation of their own choosing. DuPontwas ordered to completely disband the seven commit-tees and meet any union request to bargain over plantsafety and fitness facilities. The union was also giventhe power to have rescinded the safety awards pro-gram that the company had implemented without bar-gaining.

In the case of Waste Management of Utah, no unionwas certified when the employer formed its joint com-mittees, but one had filed for a representation election.The general manager presided over six meetings tosolicit participation in one of three employee commit-tees he was creating, to deal respectively with Routingand Productivity, Safety, and Benefits. While he saidthat the purpose was to get input from which to correctsome past mistakes, the timing of his committee forma-tion effort, two months after the filing for election, waslater found to be specifically in response to the unionorganizing campaign.

In their first month, the committees met and pro-posed a safety bonus program, an attendance bonusprogram, a new vacation and holiday policy, and acci-dent and injury review guidelines. A manager thentold employees that these proposed programs wouldbe put into effect without any union involvement, andthat they might be lost if the union was voted in. Theseremarks were later construed as an unlawful induce-ment to reject the union. The union was indeed de-feated, and it subsequently filed objection to the elec-tion. Shortly afterward, the general manager announcedthat the programs formulated by the committees couldnot be put into effect, due to union objections to theelection. He urged those employees with “pull” to tryto get the union to drop its objections.

The Board found that management had made un-lawful promises, intimidated employees, and unfairlyinfluenced the election. It required the employer todisband the Safety and Benefits Committees, to recog-nize the union, and to reinstate any or all of the commit-tees’ programs that had been retracted because of ob-jections to the election. In addition, the employer wasordered to pay employees, with interest, the monetaryequivalent of any loss occasioned by those retractions.

In a third case, Electromation, the unlawful domina-tion took place before any union was even known to beorganizing for a representation campaign. The em-ployer had been experiencing serious employee rela-tions problems. Convinced that unilateral managementaction was not about to rectify the situation, the com-pany president decided to involve employees in devel-oping solutions through “action committees.” Em-ployee sign-up sheets were posted, and committees be-gan to meet shortly thereafter. The employer and par-ticipating employees regarded the committees as repre-sentative of the entire workforce.

When a union subsequently made a demand for rec-ognition, the president informed the committee coordi-nator, who in turn told committee members that man-agement could no longer participate, but that the em-ployees could continue to meet if they wanted. Afteranother month, the president told employees that be-cause of the union’s campaign, the company would notbe able to either participate in any committee meetingsor to otherwise work with the groups until after theelection, which was to be held within two weeks.

Specifically basing its decision in this case on eventsprior to the union’s presence, the Board held that theformation and management of the committees had beenan unfair labor practice. The subject matter and repre-sentational nature of these committees were importantfactors in the ruling. Three of the five committees fo-cused on subjects of mandatory collective bargaining inunionized settings (absenteeism/infractions, pay pro-gression, and attendance bonus), and all the commit-tees were viewed as representing employees who werenot on any committee. The company had dominatedand assisted them by organizing them, creating theirnature and structure, and determining their functions.While committee discussions were not regularly domi-nated by management, the meetings took place on com-pany property, supplies and materials were providedby management, and members were paid for time spenton committee work.

Outside and Inside the Limits

Labor relations laws are not intended to present ob-stacles for employers wishing to implement employeeinvolvement mechanisms that do not impair the rightto freely choose a bargaining representative.9 In theElectromation ruling, the Board stated that paying em-ployees for their committee meeting time, and provid-ing supplies and meeting space is not a violation unlesssuch assistance is in furtherance of employer domina-tion. In several other instances the Board has explicitly

9 Electromation, supra., Member Delaney’s concurrence.

Fall 1993 5

held joint management-employee committees to be per-fectly lawful in formation and administration.10

In General Foods, the Board found that employeeteams created as part of a job enrichment plan were notlabor organizations.11 Each team, acting by consensus,assigned job rotations and scheduled overtime for itsown members. Every non-management employee wason a team. The teams’ authority derived not from “deal-ing” with the employer, but from being delegated goal-setting and self-regulation responsibility, like any otherjob duty.

In John Ascuaga’s Nugget, the Board held that an “Em-ployee Council” initiated by the employer to resolveemployee grievances and consisting of both manage-ment and non-management employees, was not a labororganization.12 The Board found that the council didnot “deal with” the employer by acting as the employ-ees’ advocate. Instead, the council performed a mana-gerial function of adjudicating employee grievances.The committee decided by majority rule, managementwas in the minority on the committee, and the decisionsof the committee were final and binding, not proposalsto management.

In Mercy-Memorial Hospital, a similar grievance com-mittee involving employees and managers was foundto not be a labor organization, because the committeewas created simply to give employees a voice in resolv-ing the grievances of fellow employees, not to present,discuss, or negotiate with management.13 The commit-tee by itself decided the validity of each complaintbrought by employees.

Finally, in Sears Roebuck & Co., the Board held that acommunications committee formed by managementwas not a labor organization, even though it discussedmatters relating to wages and benefits.14 The commit-tee had been clearly designed as a management tool toincrease company efficiency, rather than as an employeerepresentative or advocacy body. Management pre-sented issues and questions to the committee, and thecommittee responded. The most significant factor inthis case was the member selection structure. The com-mittee was composed of one employee from each de-partment; through a rotation system, every employeehad a chance to attend two committee meetings. Thus,the entire workforce could participate directly, and thecommittee was not representational.

Implications for Farm Safety Committees

Employers who want to utilize safety committeeswithout running afoul of the NLRA or ALRA are welladvised to consider the principles shown in these re-cent Board decisions. There is no one specific thing foremployers to do or avoid doing to make its relationshipwith joint committees surely lawful. The intent to in-timidate employees or illegally dominate a worker or-ganization is not necessary to the effect of actually do-ing so. But safety committees generally do not exposethe employer to risk of unlawful domination if they donot “deal with” management, do not represent the work-force to management, or are able to exist, make deci-sions, and take actions without management control.

An employer whose safety committee is found to bea dominated labor organization may be required todisband it, and in some circumstances even to recog-nize a union that lost representation rights because ofsuch a committee. Furthermore, if a safety committee isdisbanded on this basis, and it has helped create sometype of bonus package related to safety, the employermay have to honor the terms of the plan and pay itsprescribed benefits to employees anyway.

What are the chances that any agricultural employ-ers in California will be found unlawfully dominatinglabor organizations that they thought were safety com-mittees? Farms are not covered by the NLRA, underwhich the cases cited here were decided, but the stateALRA was designed to provide agricultural workerswith protection comparable to that of the national law.15

Additionally, the ALRA itself directs the ALR Board tofollow applicable precedents of the NLRB, and statecourts are bound by precedent to look at administrativeand judicial interpretations of the NLRA as guidelinesfor the appropriate interpretations of the ALRA.16

It may not be likely but remains possible for a farmemployer to be charged with illegal labor relationsthrough the operation of its own safety committee. Thethree outlaw cases reviewed in this discussion hadunions in or around them, and few farms in Californiacurrently do. The Electromation ruling, however, carriesa distinct message that employer domination of a labororganization does not depend on the presence of aunion.

Legislation or judicial decisions that resolve conflictsbetween legally requiring safety committees and prohib-iting employers from dominating them is overdue. Mean-while, farm managers who use safety committees oughtto be mindful of the recent case findings. ■■

10 Summarized in Board Member Delaney’s concurring opin-ion in Electromation, supra.11General Foods, 232 NLRB No. 1232 (1977).12 John Ascuaga’s Nugget, 230 NLRB No. 275 (1977).13 Mercy-Memorial Hospital, 231 NLRB No. 1108 (1977).14 Sears Roebuck & Co., 274 NLRB No. 230 (1985).

15 Cal. Labor Code sec. 1140 et.seq.16 Pasillas v. ALRB (1984, 1st Dist.) 156 Cal. App. 3d 312.


goal of a safety program is to prevent accidents alto-gether, but when they do occur, attention to specificscan make a big difference in the outcome, as illustratedby several incidents that have recently come to myattention.

In the Yuba City area, a labor contractor’s worker ona pruning tower was electrocuted when he got up intohigh-tension lines. It is important to warn workers tostay at least 10 feet away from power lines. Not justemployees, but also labor contractors and other outsidelabor on the ranch need to be informed about high-tension lines and any other known hazards.

Not turning machinery off and using lockout/blockout procedures to keep it from starting up againwhile working on it has caused several disabling acci-dents, including some in northern California rice pro-cessing mills. In one, a worker lost a large portion of hisfoot in an auger in a bin when someone else inadvert-ently turned on the machinery. At another rice dryer,an employee lost half his leg when his foot was caughtin an auger after a floor guard broke. Another millworker lost partial use of his hand after getting it caughtwhile trying to clean feed rolls while the machine wasrunning.

But lockout/blockout is for all equipment, not justrice processors. A few months ago, a worker in north-

Richard Bruce

Health andSafety TrainingNeeds to BeSpecific

Preventing Accidents

Insufficient training and failure to follow necessaryprecautions have contributed to many accidents in ag-riculture. Some have resulted in death or disablinginjuries that might not have happened if forethoughthad been applied and preventive measures taken. Oth-ers have had much milder consequences, often becauseprocedures were in place to avoid serious harm. The

Common themes run through all recommendations on healthand safety in agriculture — the importance, for example, ofthe employer’s strong commitment to the safety program,good communication and cooperation among workers, avail-ability and use of protective clothing and safety equipment,and operation of equipment only by qualified workers. But asthe following examples suggest, training and equipment modi-fication also need to be site-specific to be successful — tai-lored to the setting and the technology used.

Richard Bruce, owner of Specialty Safety Training, Gerber,conducts safety training of farm workers in English andSpanish in northern California.

Fall 1993 7

ern California lost part of his arm by trying to removeforeign material from onion equipment without turn-ing it off. In an almond huller operation, althoughlockout was not used, blockout was, and that probablyprevented more serious injury to a worker’s arm. Theemployee was cleaning out green hulls from beatersand thought the safety switch on the door would keepthe beaters from starting with the door open. But whenanother worker hit reset, his arm was broken in threeplaces. By company policy, a pipe was always placedin the beaters when they were being cleaned or re-paired to prevent much movement if the machine didstart. Since this accident, the grower has installed aswitch with a lockout near the beaters where it is easyto get to. Also, a buzzer has been installed in the startbutton panel. When a start button is pushed, the buzzersounds, followed by a short delay before the equipmentstarts.

Lockout/blockout mechanisms can be used on trac-tors, choppers, pickups, etc., as well as dryers and hull-ers. These guidelines should be followed by everyone,including owners, managers, and foremen: (1) If apiece of equipment is being cleaned, serviced, or re-paired, it should be locked, the key removed or lockedout, and a tag left warning not to start the machine.Turning off a power take-off is not enough; the engineneeds to be turned off too. (2) Equipment that couldroll, fall, or turn should be blocked to prevent move-ment rather than relying on its being off or up on jacks.(3) All air or hydraulic pressure should be relievedbefore disconnecting or servicing.

Differing outcomes in two pesticide spraying acci-dents show the importance of having the necessaryprotection and following recommended safety proce-dures. In one incident, a worker was strip sprayingwithout his gloves and without wash water available.When the tank was empty, he got off the sprayer, foldedup the booms with his bare hands, and then went to thebathroom without washing his hands. The result wassevere irritation to contacted skin. In the other, a workerapplying a pesticide noticed that the hose was loosenear the hand gun and tried to push the hose back on.The worker should have kept the pump pressure as lowas possible and turned off the pump before trying to fixthe hose, but he didn’t. High pump pressure causedthe hose to blow off, and the pesticide soaked theworker’s face, running down into his eyes and aroundhis face mask. Fortunately, the grower had installed aclean water tank and hand soap on the sprayer. Theworker was able to wash his hands and face right awaywith soap and water and wash out his eyes. Someonethen took him and the spray label to a doctor. It wastwo hours before the worker was seen by the doctor,but the immediate washing had been enough to control

the damage. Without the water tank, permanent eyedamage might have occurred. Clean water and soapshould be carried on all spray rigs. Do not use emptyantifreeze or chemical containers.

Even in cabs, or when strip spraying with the nozzlepointed down, the worker needs to use all the requiredsafety equipment. A worker who is going to serviceequipment, clean nozzles, or do anything that entailscontact with spray or equipment must use all protectivegear. These precautions are also necessary for workerswho will be in the field during reentry.

Safety Considerationsin Harvesting

One of the biggest complaints I hear from owners isthat workers do not report equipment problems or dam-age. One of the biggest complaints I hear from workersis that owners or mechanics get very upset when toldabout equipment problems. Both have their points,and there can be no doubt that the best way to have asafe workplace is to encourage good communication. Ialways get a positive reception from workers whenthey see that someone is taking a personal interest intheir safety.

Growers get really busy, especially during harvest,and it is easy not to notice something that might causean accident. That’s why help from the workers is essen-tial. For example, last year during safety training of ahand-sorting crew on a walnut huller, it was pointedout that a cross conveyor could catch their clothing.Workers agreed it was a problem. When notified, theowner immediately fixed the problem before startingthe machine.

No matter how busy they are, owners and manag-ers find it well worth their time to anticipate whereequipment failures might occur and do some pre-ventive maintenance. Trucks used during harvest,for example, often are not used the rest of the year.They need to be checked before harvesting begins tosee that they are in safe condition, especially brakesand steering. And be sure the drivers are qualified.Before the harvest, it is also worthwhile for an ownerto check for potential hazards at the work site —take a good look around the orchard, for example,by driving through on a tractor.

Limbs may be a hazard for operators of equipmentwithout cabs, such as tractors and choppers, as well assweepers and pickup machines and shakers. Protectivebars or other protection can be installed. Head protec-tion for workers is needed if there is a chance of flyingtree limbs. Eye protection is recommended on mostjobs, and dust masks if working in dust.


Almost all machines make ear protection necessary.In recent checks with a decibel meter, we found thatolder tractors run at about 100 to 110 decibels. Thenewest tractors are much quieter but still run in the 90-to 95-decibel range. Chain saws run at 105 to 116. At 90decibels, ear damage begins after 8 hours. For each 5-decibel increase, that time is cut in half (95 = 4 hours;100 = 2 hours; 110 = 0.5 hour). Most harvest equipmentprobably runs in these upper ranges.

The following selection of specific tips illustrates theattention to detail, ingenuity, and vigilance required toavoid common hazards during harvest:

■■■■■ Shakers . A common problem on shakers is that limbsfrom adjoining trees hit the operator in the back.Trees with many dead branches should be shakenonly lightly, and the receiver operator and bin han-dler should get as far as possible from the shakermachine.

Never let operators of nut shakers go under the boom.Before harvest, check the pins on the main lift cylin-der; they have been known to break while up in theair. Warn all other workers not to go behind theshaker, where the operator might not see them.

If the operator backs into a power pole and the wiresbreak, it may be possible to drive the machine awayfrom the wires. If not, someone should try to gethelp to shut off the power. If that is impossible, theworkers should jump from the machine, being care-ful not to touch the machine and ground or limbs atthe same time.

■■■■■ Nut sweepers, pickup machines . People should stayat least 100 feet from the fan discharge, never in frontof it when it is running. I have heard of workersstanding in front to blow off dust or get cooled off. Ihave also heard of fan blades coming off and beingthrown a good distance. They could kill someone.

Plan the harvest so that the fan discharge on sweep-ers and harvesters is away from the road. Even thedust could cause an accident.

Before dismounting from a hydrostatic unit, be surethe brakes are set and the engine is off or manualtransmission is in neutral. Hydrostatic units canstart moving on their own.

Replace worn or torn rubber guards.

■■■■■ Prune and pistachio harvesters . It is essential for theshaker and receiver operators and the bin handler tobe in contact with and watch out for each other.

No one should get between the left rear tire and panof the receiver. If a person has to go there, theoperator should have the machine securely stopped

and keep hands and feet away from the controls.

Do not let any unqualified operators run machines.

Do not move the slide on the shaker when anyone isin the slide area. One person caught his head be-tween pipes on the slide and frame when anotherworker moved the valve.

■■■■■ Fruit removal from field . Again, whatever method isused, the harvester operator and the person remov-ing fruit need to be in communication. Plan harvest-ing so that the tractor or bankout driver does nothave to go near the fan discharge.

If using nut carts —no riders. It is especially impor-tant to not allow anyone in auger carts if the power ishooked up.

Plan trailer hitching and unhitching so that no oneneeds to be between the hitch and the tractor whenthe tractor is backed up.

Be extra careful in late evenings when dust settlesinto the field and visibility is poor.

Enter roadways and loading areas carefully. Slowdown around the harvester, loading areas, or otherworkers.

There is very little visibility behind bankout wagons.Supervisors should warn all workers to stay out frombehind the machine when it is unloading. If themachine has been stopped for a period of time, theoperator should walk around behind it to check forother people before backing. Ideally, all bankoutwagons should have a backup signal or horn, and awarning should be sounded when backing up orgoing around buildings.

Be sure no one ever goes under the dump bed whenit is raised without a support pole. Keep hands outof the way when lowering the bed onto the supportpole; at least one worker has smashed a finger underthe pole while installing it.

■■■■■ Nut elevator . Accidents have happened around theconveyor apparatus. A worker’s leg got caught onthe conveyor and pulled under the trailers.

Be careful when opening and closing bottom doors.If someone has to go into the trailer to empty it, thebottom door should be closed enough to prevent theworker’s foot from slipping through and gettingcaught in the belt.

■■■■■ Bin carrier . Besides watching out for people in har-vesting and loading areas, bin carrier drivers shouldslow down when coming out of the ends of rows.

Many bin carriers are hard to stop in an emergency,so drivers should not be pushed to go too fast. It is

Fall 1993 9

especially hard for them to see behind the carrierwhen loaded with bins.

Do not stack bins more than one high next to thedriver.

Lower forks and shut off the engine when leavingthe machine. Set the hand brake, if there is one.

■■■■■ Forklifts. Be sure workers do not walk behind anoperating forklift. But no riders, either! And be sureforks are always carried as low as possible.

On a forklift with dual tires, check the outer tirefrequently. If it is flat, it essentially narrows themachine and makes it more likely to tip over.

An operator who sets a pace with a forklift and plansthe next moves will get more done — safely — thanone who is always rushing and gunning the engine.

A point to remember when moving a forklift onto atruck or trailer is that the forklift is extremely heavyand might have small tires that could break througha wooden bed.

Heat Stress

Another concern of growers, and an important partof revised worker protection guidelines from the U.S.Environmental Protection Agency (EPA), is heat stressin agricultural work. Those performing strenuousphysical labor, especially when wearing protective gearand carrying equipment, are particularly susceptible.People working in agriculture should be familiar withthe symptoms and treatment of heat illness, especiallyheat stroke, which can result in death.

[Note: See the article on page 15 summarizing guidelinesfor management of heat stress. ]

Conclusion

Although agricultural production technologies havemany inherent dangers, accidents and health problemscan be prevented with careful planning and adherenceto safety procedures. Managing for safe operation in-volves giving attention to both physical conditions andhuman behaviors. Regularly scheduled discussionsbetween safety advisors and managers, foremen, andowners, along with inspections of work sites for poten-tial hazards, are steps in the right direction. Keepingthe lines of communication open between managersand employees is a must.

Too often neglected is the need to transform generalcautions and prescriptions into specific guidelines thatfit conditions on individual farms and ranches. Theeffort and creativity devoted to customizing safety pro-cedures pay off big for both employer and workers. ■■

After many years of debate among all involved par-ties, the California State Legislature passed comprehen-sive workers’ compensation reform in seven bills, whichwere signed by Governor Pete Wilson in July 1993.During the five years before the legislation, workers’compensation costs had escalated, driving up employ-ers’ premiums and insurance company costs. By thetime reform discussions had begun, the number ofclaims had been increasing dramatically, and medicalpayments and litigation costs were rising.

As the first step in reforming the system, the legisla-ture had passed a tough bill in 1991 that made workers’compensation fraud a felony. It provided money todistrict attorneys to investigate fraudulent claims activ-ity and enabled insurers to clamp down on employees,vendors, and employers violating the system. Claimsbegan to decrease in late 1992 and into 1993, partly as aresult of the new law.

Employers, workers, and insurers will all beaffected by California’s workers’ compensationlegislation passed in the summer of 1993, al-though it will be some time before its conse-quences are fully realized. State Compensa-tion Insurance Fund, California’s largest work-ers’ compensation insurer, has provided LaborManagement Decisions readers with a sum-mary of the main elements of the reform pack-age, as part of its effort to present the publicwith up-to-date information on the develop-ments in this important area. Jan Vick is In-formation Officer in the company’s Communi-cations Department in San Francisco.

Workers’ CompensationReform of 1993

Jan Vick


Despite the successful anti-fraud efforts, insurancepremiums for policyholders continued to rise. How-ever, indemnity payments to employees for time lostfrom work remained among the lowest in the nation.New legislation was introduced to give rate relief toemployers, increase benefit payments to injured work-ers, improve workplace safety, reduce medical-legal ex-penses, and decrease the number of psychiatric andpost-termination claims.

The reform package includes the following sevenbills plus clean-up legislation passed in September:

AB 110 The major bill in the package, makeschanges throughout the workers’ com-pensation system.

SB 30 Repeals the minimum rate law as of Janu-ary 1, 1995.

AB 119 Limits psychiatric and post-terminationclaims.

SB 484 Appropriates funds to implement thenew workers’ compensation laws.

SB 983 Allows certain workers’ compensationbenefits and dispute resolution processesto be negotiated through collective bar-gaining in the construction industry.

SB 1005 Establishes the Commission on Healthand Safety and Workers’ Compensation.

AB 1300 Expands anti-fraud measures.

Another bill, SB 223, was enacted in September toclarify the reform package. An important provision init concerns the effective date of the new rates underopen rating. The new rates will be effective on the firstnormal anniversary date of a policy on or after January1, 1995, and no policy may be issued or renewed for aperiod of less than one year for the purpose of changingthe policy’s normal anniversary date.

AB 110, AB 1300, SB 484, and SB 983 contained ur-gency clauses. Their provisions have various effectivedates noted in the following discussion.

Changes Affecting Employers

The change of most immediate importance to em-ployers is the decrease in premium rates, effective July16, 1993. Each insurance company will determine howit will carry out the rate changes. All employers in-sured by State Fund, for example, will receive a 7 per-cent decrease in their rates on the portion of their 1992or 1993 policies remaining as of that date. This meansthat the policy premium for an employer is based on

the rate existing at the policy anniversary date for theeffective period before July 16, and on a 7 percent lowerrate for the period thereafter (see the following example).

Classification: 0171-Field Crops, Farm. Rate per $100of Payroll (Annual Payroll of $1,200,000)

Beginning Rate Annual Rate Annualdate of before premium after premiumpolicy 7/16/93 without rollback 7/16/93 with rollback

12/1/92 $19.65 $235,800 $18.27 $229,5683/1/93 $20.32 $243,840 $18.90 $233,1678/1/93 N/A N/A $18.90 $226,800

In the long run, the provisions of SB 30 will have themost significant effect on workers’ compensation rates.This bill repeals the minimum rate law, effective Janu-ary 1, 1995. Under the old law, the Workers’ Compen-sation Insurance Rating Bureau (WCIRB) proposed aschedule of new rates, which was then submitted to theInsurance Commissioner for public hearings and finalrate determination. The WCIRB based the proposedrates on the loss experience (including an expense pro-vision to cover the cost of adujusting claims) of eachindustry.

The new law requires a rating organization to pub-lish “pure loss” rates by industry, with no expenseprovision. Each insurance carrier will then file its ownrates with the Insurance Commissioner based on thepure loss rates, and it will factor in its costs of doingbusiness. The rating organization must publish its firstset of pure loss rates by October 1, 1994, and insurancecarriers must file their rates at least 30 days before use.Since the new rates are to be effective for new andrenewal policies as of January 1, 1995, carriers must filetheir rates no later than December 1, 1994.

The legislature expects that increased competitionamong insurance companies, due to the elimination ofthe guaranteed expense allowance, will result in lowerrates for most medium to large employers. As theinsurer of many smaller employers, State Fund is com-mitted to stabilizing the rates for this segment of thebusiness community as well.

Benefit Changes

Workers will receive a long-overdue benefit increasefor covered injuries occurring on or after July 1, 1994(see following table).

Fall 1993 11

The new law encourages the use of modified or alter-native work assignments to get injured employees backto work as soon as possible. An employer’s liability forvocational rehabilitation services may be terminated ifsuch work is provided and meets certain wage andduration requirements. In addition, an employer whoprovides modified or alternative work may be eligiblefor a refund on its workers’ compensation premium.

Litigation of claims has continued to be a major costdriver in the workers’ compensation system. The num-ber and cost of medical-legal evaluations have grownrapidly. To bring under control the expenses they en-tail, the new legislation mandates a more restrictive feeschedule for medical-legal reports and limits the num-ber of them that either side may obtain in a disputedclaim. The expense of any additional report must beborne by the party that orders it.

The treating physician will have a more prominentrole in medical decisions, with responsibility for givingopinions on all medical issues necessary to determineeligibility for compensation. That physician’s report ispresumed to be correct, except where each party in arepresented case has selected a qualified medical evalu-ator.

Cancellation Notice

The new legislation defines conditions under whichan insurer may cancel a policy and sets minimum timeperiods for notifying an employer of cancellation. Theinsurer must give 10 days’ notice for cancellation basedon the following: (1) failure to pay workers’ compensa-tion premiums; (2) failure to report payroll or permitthe insurer to audit the payroll; (3) material misrepre-sentation by the policyholder or agent; and (4) failure tocooperate in the investigation of a claim. The followingrequire 30 days’ notice: (1) material failure to followfederal or state safety orders or written safety recom-mendations by the insurer’s loss control representative;(2) a material change in ownership; (3) a change inbusiness that materially increases the hazard or requiresadditional or different classifications.

Employer Bill of Rights

The reform package gives employers expandedaccess to information about their claims or policyhistory. Upon request of a policyholder, the insur-ance carrier is obligated to provide a written reporton those parts of a claim’s reserves that affect theemployer’s premium. This report is to include infor-mation on estimated medical-legal costs, vocationalrehabilitation, and other expenses. The insurer mustdisclose all elements of a claim file that will affect

Temporary & permanent total disabilityMaximum weekly benefit beginning:Current 7/1/94 7/1/95 7/1/96

$336 $406 $448 $490

Permanent partial disability

Maximum weekly benefit beginning:Disability rating Current 7/1/94 7/1/95 7/1/96

0.25 %– 14.75% $140 $140 $140 $14015% – 24.75% $140 $148 $154 $16025% – 69.75% $148 $158 $164 $17070% – 99.75% $148 $168 $198 $230

Death

Total no. of Maximum benefit beginning:dependents Current 7/1/94 7/1/96

One $95,000 $115,000 $125,000Two $115,000 $135,000 $145,000Three or more $115,000 $150,000 $160,000

Increases inWC BenefitsOver NextThree Years

The new legislation bars claims where the cause ofinjury was a lawful, nondiscriminatory, good faith per-sonnel action. It also makes substantial changes to thethresholds for psychiatric claims and post-terminationclaims based on injuries occurring on or after July 16,1993. The applicant must now show that the actualevents of employment were the predominant cause(over 51 percent) of a psychiatric injury.

Post-termination claims are those which are filedafter an employee has been fired or laid off. Under thenew law, it will be more difficult for an employee whois given notice of termination or layoff to file a validclaim for an injury that occurred before that date. Toreceive workers’ compensation in such cases, an em-ployee must prove one of the following: (1) that asudden or extraordinary event in the scope of employ-ment caused the injury; (2) that the employer had re-ceived notification of the injury before issuing the no-tice of layoff; (3) that medical records from before thetermination notice show the injury had existed; (4) thatthe injury took place after the notice but before theactual discharge; or (5) that a court or other legitimatetrier of fact has found that the employee had been ra-cially or sexually harassed.

Costs of vocational rehabilitation benefits have beenescalating rapidly in recent years, in 1990 accountingfor over 10 percent of the total costs incurred for claims.The reform legislation places a cap of $16,000 on voca-tional rehabilitation services for injuries occurring on orafter January 1, 1994, and, with some exceptions, itrestricts the worker to one vocational rehabilitation plan.


trol is extended to 180 days if the employer offers atleast two MCOs and provides coverage for non-occu-pational health care. Control of medical care extends to365 days if the employer offers two MCOs and pro-vides non-occupational health coverage, and if theemployee’s personal physician or chiropractor is affili-ated with at least one of the MCOs.

Health and Safety Commission

The legislature has created a new commission ofemployers and employees to oversee the workers’ com-pensation system in its entirety. The reform packageeliminates the old Health and Safety Commission andreplaces it with an eight-member Commission on Healthand Safety and Workers’ Compensation. Four mem-bers of this commission will represent employers, andfour will represent organized labor. The commissionwill conduct continuing examination of the workers’compensation system and of activities to prevent in-dustrial injuries and occupational diseases. It may con-duct relevant studies and investigate programs in otherstates, and is to issue a yearly report to the governorand the legislature. SB 484 appropriated $500,000 to thecommission.

Conclusion

The 1993 reform package brings sweeping change tothe workers’ compensation system in California. Bothindustry and government leaders expect that thechanges will bring runaway costs under control.

But there are many uncertainties about how partsof the new legislation will be implemented and whatits results will be. Insurers must create new proce-dures for a wide range of services. State agenciessuch as the Department of Industrial Relations andthe Department of Insurance, as well as the Workers’Compensation Insurance Rating Bureau, must createseveral new rules and procedures. Many new poli-cies and procedures need to be developed under therating system that replaces the repealed minimumrate law. Their effects cannot be known until afterJanuary 1, 1995.

Policyholders and the general public should remainalert to information from agencies and insurers as theymake the decisions remaining to implement workers’compensation reform. ■■

the employer’s premium. Confidentiality provisionsin the law, however, may restrict an employer’s ac-cess to the injured worker’s medical records and alldocuments protected under attorney-client privilege.Signed releases may also be required to obtain cop-ies of claims information.

In addition to these requirements of insurers, thereare new duties for the Workers’ Compensation Insur-ance Rating Bureau. The WCIRB is to provide, at theemployer’s request, a written report containing infor-mation about that employer’s loss experience, claims,classifications, and policy contracts. The report alsomust include information about rating plans, manualrules, and any other information that affect theemployer’s premium rates. The WCIRB will create theposition of ombudsman to help employers obtain andevaluate the report from the bureau.

After January 1, 1994, every policyholder should beprovided information about the new services and thechanges in the law. Insurers must inform all of theirpolicyholders about the ombudsman and the reportavailable from the WCIRB. The insurer also must pro-vide an explanation of the changes in workers’ com-pensation laws and a summary of the changes in therating law.

Workplace Safety

A major concern of the legislature has been estab-lishment of programs to improve workplace safety. Allinsurers must provide loss control consultation servicesthat meet minimum requirements to be published bythe California Department of Industrial Relations (DIR).Insurers will inform all their policyholders of the lossprevention services available from them at no addi-tional cost.

The DIR Division of Occupational Safety andHealth is directed to create a program to identifyand inspect the most hazardous industries. It alsowill set up model programs for prevention of repeti-tive motion injuries. Carriers may also be requiredto expand their loss control services to targeted haz-ardous industries.

Managed Care of Occupational Injury

Employers may extend their control of an injuredworker’s medical care beyond the current 30-day timelimit, for a period that depends on how many ManagedCare Organizations (MCOs) they offer care throughand whether they provide non-occupational health in-surance. An employer who offers at least two MCOs toemployees can have medical control for 90 days. Con-

Fall 1993 13

Key Provisions

■ The obligation to offer family and medical leave ap-plies to employers with 50 or more employees.

■ The revised Cal-FMLA gives eligible employees theright to take up to 12 weeks of unpaid family ormedical leave in a 12-month period for the care of aseriously ill child, spouse, or parent, for the birth oradoption of a child, or for the employee’s own seri-ous health condition that is not pregnancy-related.Generally, FMLA and Cal-FMLA leaves are to runconcurrently. The new law eliminates the complica-tion of coordinating California’s old “four monthsoff in two years” provision with the FMLA.

■ California’s pregnancy disability leave law, however,still gives employees who are disabled on account ofpregnancy, childbirth, or related medical conditionthe right to up to four months of leave. This preg-nancy disability leave does not count against the 12weeks of leave available under Cal-FMLA. After theemployee is released from disability, she is eligiblefor up to 12 weeks of additional family and medicalleave to care for the newborn.

■ Employees on medical or family care leave are en-titled to continuation of medical coverage under thesame terms as if they were still working. If returningwithin 12 weeks from this leave, they generally havethe right of reinstatement to their former or equiva-lent positions.

Changes Made in Cal-FMLA

The new bill, AB 1460, makes changes in almostevery major area of Cal-FMLA. In particular:

The state legislature has enacted, and the Governorhas signed, a bill that revises California’s Family RightsAct (“Cal-FMLA”) to substantially conform it to thefederal Family and Medical Leave Act (FMLA). As“urgency legislation,” AB 1460 took effect immediatelyon October 5, 1993. The Department of Fair Employ-ment and Housing is beginning to write interpretiveregulations and is expected to issue drafts within a fewmonths.

California Follows Most ofFederal Family and Medical Leave Act

Susan R. Mendelsohn

After the federal Family and Medical LeaveAct became effective in August 1993, Califor-nia employers of 50 or more employees faceda maze of overlapping federal and state pro-visions on family leave. Passage of AB 1460has now brought the California Family RightsAct more closely into line with the federalAct, with pregnancy disability leave remain-ing a notable area of difference.

Susan Mendelsohn is a senior associate in theLabor and Employment Law Group ofPillsbury Madison & Sutro, based in SanFrancisco. She advises large and small corpo-rate clients as well as non-profit organiza-tions on employment matters, including wageand hour standards, leave policies, wrongfultermination, discrimination, employee pri-vacy, and drugs in the workplace.


Employee Eligibility. Under both federal and Califor-nia law, employees are now eligible to take family andmedical leave (other than pregnancy disability leave) ifthey have been employed for more than 12 months andhave at least 1,250 hours of service. Previously, thestate law covered employees if they had 12 months ofservice and were eligible for at least one other benefit.Employers are not required to allow such leave to per-sons working in a location with fewer than 50 employ-ees within a 75-mile radius. Thus, a vegetable producerwith 70 workers in Santa Maria and 35 in Blythe wouldhave to provide the leave to the employees in SantaMaria, but not to those in Blyth. Employees continue tobe eligible for pregnancy disability leave under the FairEmployment and Housing Act, regardless of length ofservice or number of hours worked, as long as theemployer has 5 or more employees.

Purposes of Leave. California law is broadened topermit leaves for the employee’s own serious healthcondition, in addition to previous provisions for thecare of a seriously ill child, spouse or parent, and for thebirth or adoption of a child.

Duration of Leave. Federal and state laws now bothprovide for up to 12 weeks of family and medical leavein a 12-month period in most situations. But they differsomewhat in provisions for intermittent leave and forpregnancy disability leave. Under Cal-FMLA, leavecan be taken in increments as small as one day; FMLA,however, allows for intermittent leave in the shortestunit of time (e.g., one hour or less) that the employer’spayroll system uses in accounting for absences or use ofleave. Since FMLA is more generous, employers inCalifornia will be required to comply with the federalprovisions.

Benefits. Like FMLA, Cal-FMLA requires employersto continue health insurance benefits during the leaveunder the same conditions as when the employee wasworking. The employer may recover insurance premi-ums paid for a worker who fails to return from leave,unless the failure to return is caused by a serious healthcondition that would entitle the employee to family ormedical leave, or by circumstances beyond theemployee’s control.

Proof of Need. Both federal and state law permit theemployer to require the employee to provide medicalcertification of the need for leave. Disclosure of thefollowing can be requested:

1. The date on which the serious health condition be-gan.

2. The probable duration of the condition.

3. A statement that the serious health condition war-rants the employee’s participation to provide carefor the family member during the period of treat-ment or supervision.

4. An estimate of the amount of time the employeeneeds to care for a family member. For theemployee’s own serious health condition, the em-ployer can require a statement that the employee isunable to perform the functions of his or her job.

Unlike FMLA, the Cal-FMLA does not allow the em-ployer to require the employee to give any detailedmedical facts (such as a specific diagnosis). Since theCal-FMLA provision offers more protection for the em-ployee, it will prevail.

Under both Acts, the employer may require the em-ployee to obtain a recertification regarding the need fora family or medical leave. The employer may requirethe opinion of a second health care provider designatedor approved by, and at the expense of, the employer. Ifthe second opinion differs from the original one, theemployer can require the employee to obtain an opin-ion from a third health care provider, whose opinionshall be binding. The employer can also require a fit-ness for work certification from employees who returnfrom a medical leave of absence.

Special Rules forPregnancy Disabilities

Cal-FMLA specifically excludes pregnancy disabil-ity from the “serious health conditions” for which em-ployers are obligated to provide family and medicalleave. The Cal-FMLA provisions are to be construed asseparate and distinct from the pregnancy provisions ofthe Fair Employment and Housing Act (FEHA), whichgive employees the right to take up to 4 months off ifdisabled on account of pregnancy, childbirth or relatedmedical condition.

Therefore, a pregnant employee may be able to takea total of 7 months off—4 months of pregnancy disabil-ity leave plus 12 weeks of family and medical careleave—in a 12-month period. However, in most nor-mal pregnancies, the period of disability will probablybe less than four months. The provisions for health carecoverage while on a pregnancy disability and relatedchild care leave are complex. In brief, the employer isrequired to furnish company-provided health care ben-efits for up to 12 weeks of a pregnancy-related disabil-ity, based on FMLA. After the employee is released toreturn to work, she will have the right to an additional12 weeks of child care leave under Cal-FMLA, during

Fall 1993 15

ness affect very many more people, often at work. Heatstress can cause weakness, fatigue, reduced alertness,and impaired judgment and may be an underlying causeof other types of illness and injury on the job.

The EPA advises employers to take into account theweather, workload, protective gear to be worn, andcondition of the workers in devising basic preventivemeasures. The danger of heat stress increases withhigher temperature and humidity, under direct sun-light, during heavy work, and with use of protectiveequipment and clothing, especially coated and non-woven synthetic garments. Workers’ susceptibility alsoincreases with age, lack of rest, lack of physical fitness,and use of certain drugs and medications, but evenpersons in good shape can become seriously ill fromheat. Those who gradually adjust to working in a warmor hot environment are less likely to become ill.

Employers are also advised to make sure workersdrink enough water and to adjust work practices for theconditions of each day. For example, heavy work andpesticide handling might be scheduled for the coolerhours, and work/rest cycles could be set up.

If workers become too hot despite precautions, theEPA suggests shortening the work periods and length-ening the rest periods and providing shade or coolingby awnings, cooling vests, hats, and the like. Less fitworkers could be assigned to lighter work. It might benecessary to halt work altogether under extreme condi-tions.

Early recognition and immediate treatment are thekeys to first aid for heat illness. Symptoms of heatexhaustion include profuse sweating, headache, fatigue,dry mouth, fast pulse (if conscious), dilated pupils, nau-sea, confusion, and dizziness. Heat stroke, a medicalemergency, often occurs suddenly and includes dizzi-ness, confusion, irrational behavior, and coma. Sweat-ing may slow down or stop; the pulse is fast, if theperson is conscious, and breathing is rapid; nausea andconvulsions may occur.

Treatment for overheating includes having the af-fected person rest in a cool, shaded area and drinkplenty of water. If a worker gets heat stroke, bodytemperature has to be lowered as rapidly as possible toavoid permanent damage. The recommendations areto place the worker in the shade, remove clothing, wraphim or her in a sheet, pour water on the sheet, and keepit wet. Cool the head with wet compresses, and fan theworker with a towel or large piece of cardboard. Theseprocedures should be continued while the worker isbeing transported to medical care. If the heat stroke

Among requirements of the revised federal WorkerProtection Standard for Agricultural Pesticides, whichwas published in August 1992 and is scheduled for fullimplementation by April 15, 1994, are provisions forheat stress management. Heat stress can be a severeproblem for agricultural workers, especially those whoneed to wear protective gear. The new standard devel-oped by the U.S. Environmental Protection Agency(EPA) includes a requirement that pesticide handlersand “early entry” workers (those who go into an areawhile entry is restricted after pesticide treatment) beinstructed in the prevention, recognition, and first-aidtreatment of heat illness. Appropriate measures to pre-vent heat illness are to be taken, if necessary, beforethose employees begin working. EPA and the Occupa-tional Safety and Health Administration (OSHA) planto release a guide and a variety of training materials inNovember to help employers train workers and super-visors in controlling heat stress and recognizing, pre-venting, and treating heat illnesses. The following in-formation is based on a draft of the guide.

According to the EPA, an average of nearly 500people die each year in the United States from the ef-fects of heat. During a heat wave in 1980, over 1,700people died from heat-related illness. More than 20percent of people afflicted by heat stroke die, evenyoung, healthy adults. Less extreme forms of heat ill-

which the employer is required to furnish her withcompany provided benefits.

Conclusion

Employers are encouraged to review their leave poli-cies for consistency with the federal and revised Cali-fornia laws. Additional clarification of employee rightsand employer responsibilities in this area will be forth-coming in regulations to be developed by DFEH, andsome provisions of the Act may be subject to legalchallenge. ■■

New EPA Standard IncludesHeat Stress Management


G.

E.

Bill

ikop

f

victim is a pesticide handler or early entry worker,possible contamination needs to be considered but it isimportant to not delay treatment in any case. Medicalpersonnel can act most effectively if informed of thepossibility of pesticide contamination.

More on the EPA Standard

Overall provisions of the revised federal Worker Pro-tection Standard in general cover display of informa-tion at a central location, pesticide safety training, de-contamination sites, exchange of information betweengrowers and employers of commercial pesticide han-dlers, emergency assistance, notice of applications,monitoring of handlers using highly toxic pesticides,specific instructions for handlers, equipment safety,duties related to personal protective equipment, dutiesrelated to early entry, and special application restric-tions in nurseries and greenhouses. California is revis-

ing its pesticide safety regulations to conform to federalguidelines; the California revisions are also anticipatedto take effect by next April.

Upon request, EPA will send information on therevised Worker Protection Standard, including a bulle-tin summarizing the provisions for users of agriculturalpesticides. [NOTE: Where state regulations are more re-strictive than the Worker Protection Standard, the state regu-lations will supersede the federal standard.]

In November, A Guide to Heat Stress in Agriculture, asummary in English and Spanish, and training materi-als will be available. For information, contact KatherineH. Rudolph, Life Scientist, U.S. Environmental Protec-tion Agency, 75 Hawthorne Street (A-4-5), San Fran-cisco, CA 94105-3901 (phone 415/744-1065; FAX 415/744-1073). ■■

Migrant farm workers in the King City and Arvinareas during the season have been able to receive mes-sages from callers anywhere in the United States throughtwo toll-free voice-message services. The Migrant Com-munications Link, through a grant from Pacific Bell,uses “Voice Forms” technology that automatically takesmessages in Spanish 24 hours a day.

The easy-to-use service has been available, this year,to farm workers near the King City and Arvin migrantcenters. Family and friends call the toll-free numberand leave messages, which the workers then pick up upat the migrant center. The King City center (phone800/842-5527) is open until the end of November, afterwhich it will close until June 1994. The Arvin center isnow closed but will reopen in April 1994, when itsphone number (800/642-5527) will be reactivated.

The project is sponsored by La CooperativaCampesina de California, the California Department ofEconomic Opportunity, Pacific Bell, and the Depart-ment of Housing and Community Development, as wellas the Housing Authorities of both Kern and Montereycounties. ■■

Farm WorkerMessage Service

Fall 1993 17

erside. For a free copy of the list in English or Spanish(Lista de Verificación de Trabajadores Agrícolas en Califor-nia), write or phone Steve at 1720 S. Maple Ave., Fresno,CA 93702; 209/488-3560.

Sexual harassment information for employees. The Cali-fornia Chamber of Commerce has published an “em-ployer-friendly” pamphlet that may be used in place ofthe Department of Fair Employment and Housing(DFEH) pamphlet. California law requires that em-ployers post the DFEH poster (available from localDFEH offices) and distribute the DFEH pamphlet or“equivalent” information to employees. The Chamberof Commerce pamphlets, in English or Spanish, may beordered at $10 for 25 copies by phoning 800/331-8877and requesting the “Sexual Harassment PreventionPamphlet.”

Consumer education news briefs, in Spanish. MyriamGrajales-Hall, Spanish Broadcast and Media Informa-tion Representative, UC Cooperative Extension, River-side, has prepared a series of “Cápsulas Informativas”as well as several news releases offering informationfor low-income Spanish-speaking consumers. Recentsets of news capsules, each of which is three or fourparagraphs long, cover a wide range of subjects, includ-ing farm worker and family health, avoiding agricul-tural accidents, family nutrition, fruit and vegetableconsumption, food safety, feeding of infants, guardingagainst fraud, qualifying for low-rate credit cards, andsecurity deposits by tenants to landlords. For moreinformation, phone Myriam Grajales-Hall at 909/787-4397.

Guide to Federal and State Requirements for Employee/Migrant Housing, a 14-page booklet, presents housingstandards requirements in easy-to-read tabular formwith state and federal regulations compared for eachsubject. Prepared jointly by the U.S. Department ofLabor Wage and Hour Division, and the California De-partment of Housing and Community DevelopmentDivision of Codes and Standards, the booklet has beenreprinted by the UC Agricultural Personnel Manage-ment Program in Fresno County and can be obtainedfrom Steve Sutter at 1720 S. Maple Ave., Fresno, CA93702 (phone: 209/488-3560). The price is $1.50 percopy; make checks payable to “County of Fresno.”

Recorded Information

Personnel management updates. The Fresno County UCCooperative Extension “AgLine,” a recorded news andinformation service, includes tapes on personnel man-agement (tape 7110), field sanitation requirements (7310),and hazard communication (7320). The service, acces-sible by touch-tone phone, is free (other than normaltelephone toll charges, if any). Phone 209/488-1940. ■■

Resources

Publications

Pesticide safety “novela,” in Spanish. Protección de suSalud presents basic education on pesticide safety incolorful comic-book style. Underwritten by the West-ern Agricultural Chemicals Association (WACA) andNational Agricultural Chemicals Association (NACA),the booklet is offered to growers for distribution toemployees. Copies, as long as they last, can be obtainedfrom Steve Sutter at the UC Cooperative ExtensionFresno County office (209/488-3560).

B.C. Farm Employers’ Handbook , 1993 edition. Titles ofthe five booklets in this guide for farm managers are:Personnel Planning and Regulations; Hiring; Supervising;Training, Motivating, and Evaluating; and Communications,Problem Solving, and Disciplining. Although publishedin British Columbia, most of the information is notlocation-specific. The handbook was prepared by LorneOwen, Provincial Farm Management Specialist, B.C.Ministry of Agriculture, Fisheries, and Food; PatDavidson, Extension Education Consultant; Howard R.Rosenberg, Director, APMP, University of California,Berkeley; and Lindsay Brooks, President, Strategic Qual-ity Institute. The APMP has a limited number of setsavailable at no charge upon request to: Noreen Wong,Agricultural and Resource Economics, 207 GianniniHall, University of California, Berkeley, CA 94720(phone: 510/643-6359; FAX: 510/642-6108).

Revised poster booklet. Abundance of Posters (and Leaf-lets) Required in Agricultural Employment, first publishedby Steve Sutter in October 1990 is now in its seventhprinting. The booklet includes 3 pages of text, 8 requestcards covering up to 37 placards and brochures, and 5required posters employers need to make themselves.To order, send Steve a check for $2 payable to “Countyof Fresno”; write “poster booklet” on the check margin.Mail to Steve at UC Cooperative Extension, 1720 S.Maple Ave., Fresno, CA 93702.

Instructor’s Guide to Farm Safety Training — booklet andtape . The 6-page booklet, published in English and Span-ish by the UC Agricultural Health and Safety Center, andaccompanying audio cassette are available for $5 fromSteve Sutter. Make check payable to “County of Fresno,”write “Instructor’s Cassette” on the margin, and send toAPMP, 1720 S. Maple Ave., Fresno, CA 93702.

TIPP checklist, in Spanish as well as English. SteveSutter’s June 1993, 30-point Targeted Industries Partner-ship Program (TIPP) Checklist is now also available in aSpanish translation by Myriam Grajales-Hall, UC Riv-


Events

December 1. “The Working Poor in a Post-IndustrialEconomy: An Ethnographic Study of a Mexican Immi-grant Barrio in California,” Christian Zlolniski-Palacios,anthropologist, UC Santa Barbara, and Visiting ResearchFellow at the Center.

December 8. “Industrial Policy and Technology Trans-fer: The Development of the Mexican Computer Soft-ware Industry,” Jorge Borrego, Center for Informationand Communication Technologies, University of Sus-sex, England, and Instituto Mexicano de Comunica-ciones, and Visiting Research Fellow, Center for U.S.-Mexican Studies.

Workshop. Thursday, November 4, 1992, starting at 8:30a.m. Orland: Glenn County Fairgrounds, Arts andCrafts Building. Speakers will discuss regulations af-fecting agriculture, including pesticide use and workersafety. Sponsored by the California Rural Develop-ment Committee, UC Cooperative Extension, andNorthern California Farm Bureau, the meeting is in-tended for anyone involved in agriculture or theeconomy of rural areas. For further information, con-tact L. Clair Christensen, Applied Behavioral SciencesExtension, University of California, Davis (phone: 916/752-3006).

Brown Bag Seminar Series, UC Agricultural Health &Safety Center. Fridays, at noon. UC Davis: ITEH Con-ference Room. Contact James Beaumont at 916/752-8036 to confirm dates and location.

November 5. “Mortality After Agricultural Illnessand Injury Claims in California,” James Beaumont, As-sociate Professor, Occupational/Environmental Medi-cine and Epidemiology, UC Davis.

December 3. “What Is the Workers’ CompensationRating Bureau and What Is Its Relationship to Agricul-ture?” Peter Murray, Senior Vice President, Workers’Compensation Insurance Rating Bureau (Tentative: Callto confirm.)

Agricultural Employer’s Seminars. Two free meetingswill focus on current legal and enforcement issues, in-cluding the Targeted Industries Partnership Program(TIPP). Contact Steve Sutter, UC Cooperative Exten-sion, Fresno, at 209/488-3560 to preregister.

November 10, 8:30 to 11:30 a.m., Porterville College,College Avenue at Main Street. The program will in-clude: a brief sample training program to meet U.S.EPA field worker standards that become effective April15, 1994, by Steve Sutter and Bobby Bonds, TulareDeputy Ag Commissioner; tips on employment eligi-bility verification compliance (filling out Form I-9) bySteve Borup, U.S. Border Patrol; and compliance with

California Agricultural Employment Work Group(CAEWG). October 27, 9:00 a.m. to 1:00 p.m. Sacramento:Leonard Carter Conference Room (Room 282), on thesecond floor of Office Building One, 915 Capitol Mall(directly opposite the State Library building). Theagenda will include extensive discussion of FarmWorker Services Coordinating Council (FWSCC) initia-tives. Emphasis will be given to the Targeted Indus-tries Partnership Program (TIPP). Also planned is acomprehensive legislative update with the outlook forpending legislation. For more information on this andmeetings scheduled for February and May 1994, callTony Bland at 916/741-4194.

California Agricultural Safety Exposition. November 2,registration at 7:00 a.m. Modesto: Red Lion Inn andConvention Center. Sponsored by the Agricultural Per-sonnel Management Association, UC Cooperative Ex-tension, California Farm Bureau Federation and localfarm and service organizations. Three groups of work-shops will be given, and will include sessions on chemi-cal safety, safety management, safety skills, and front-line safety. Steve Sutter will discuss “New EPA Pesti-cide Worker Safety Standards” in an afternoon work-shop starting at 1:30. Expo registration is $80 at thedoor; $65 with discount. For more information contactCalifornia Agricultural Safety Exposition (CASE), 1601Exposition Blvd., FB-7, Sacramento, CA 95815 (phone:800/753-9073).

Research Seminar on Mexico and U.S.-Mexican Relations.Wednesdays, 3:00 to 5:00 p.m. La Jolla: UC San DiegoCampus, conference room, 2nd floor, Institute of theAmericas Building, 10111 N. Torrey Pines Road. TheFall Quarter series on new research and public policyperspectives is being conducted by the Center for U.S.-Mexican Studies, UC San Diego (phone: 619/534-4503),through December 8:

November 3. “Poverty in Contemporary Mexico: ThePolitical Economy of Redistribution,” J. ManuelMarroquín, economist, London School of Economicsand Political Science, and guest scholar, Center for U.S.-Mexican Studies.

November 17. “Producing Gender, Engendering Pro-duction: The Constitution and Control of CiudadJuarez’s Maquiladora Workforce,” Leslie Salzinger, so-ciologist, UC Berkeley, and Visiting Research Fellow atthe Center.

Fall 1993 19

hazardous-materials and community-right-to-knowlaws by Larry Dwoskin, Tulare County Health Depart-ment.

November 19, 8:30 to 10:15 a.m.. AgFresno, SpecialEvents Building, Fresno County Fairgrounds. “Recol-lections About the TIPP” by panelists Joe Villarreal,Deputy Regional Administrator, U.S. Department ofLabor, Wage and Hour Division, San Francisco; ManuelCunha, Jr., Executive Vice President, Nisei FarmersLeague, Fresno; José Millan, Deputy Labor Commis-sioner, California Division of Labor Standards Enforce-ment, San Francisco; and Marion I. Quesenbery, Attor-ney, Labor Practice Group, Thelen, Marrin, Johnsonand Bridges, San Francisco. After opening statements,the panel members will respond to questions from theaudience. The program is being presented by the Em-ployment Development Department and UC Agricul-tural Personnel Management Program in cooperationwith area farm organizations.

American Agricultural Law Association, 14th Annual Edu-cational Conference. Thursday, November 11 to Saturday,November 13. San Francisco: Hotel Nikko, 222 MasonStreet. General sessions, beginning Thursday at 1:45p.m. and ending Saturday at 12:15 p.m., will includeagricultural law (annual review); reorganization of theUSDA; assuring water supplies, business and tax plan-ning; environment, health and safety; mediation; estateplanning; and ethical duties in representing elderly cli-ents. Registration fees are: members $225 ($250 afterNovember 1); students $90 ($115 after November 1);nonmembers, add $25. For information, contact Will-iam Babione, AALA, University of Arkansas School ofLaw, Fayetteville, AR 72701; phone 501/575-7389.

1993 Employment Law Conference. November 18-19. SanFrancisco: Stouffer Stanford Court Hotel (also beingheld in three other U.S. locations). The program willprovide updates on developments in such areas as equalemployment opportunity, wrongful termination, theAmericans with Disabilities Act, employee benefits, in-vestigation and defense of sexual harassment claims,and Family and Medical Leave Act. The conference issponsored by the National Employment Law Institute,444 Magnolia Ave., Suite 200, Larkspur, CA 94939(phone: 415/924-3844; FAX: 415/924-2908). Registra-tion fee is $600.

Supervisory Skills Training in Spanish. December 1–3,10:00 a.m. to 5:00 p.m. (Dec. 1), 9:00 a.m. to 5:00 p.m. (Dec.2), and 9:00 a.m. to 3:00 p.m. (Dec. 3). Modesto: UCCooperative Extension office, 733 County Center 3 (Cor-ner Scenic Dr. and Oakdale Rd.). The three-day meet-ing, organized by Gregory Billikopf, UC Area Labor

Management Farm Advisor, will cover delegation, con-flict resolution, interpersonal relations, discipline, andfarm safety and other topics of interest to Spanish-speak-ing foremen, supervisors, and farm labor contractors.The fee is $35 for registration by November 24 and $45thereafter. Lunch is included each day. For more infor-mation, phone Melynda Ange at 209/525-6654.

Financing Agriculture in California’s New Risk Environ-ment. December 1, 7:00 a.m. to 4:50 p.m. Sacramento:Holiday Inn, Capitol Plaza. Speakers will present find-ings on agricultural credit from a borrower’s perspec-tive, the supply of credit, risk considerations and man-agement, and policy options, followed by discussion bypanelists and the audience. The conference is spon-sored by the Agricultural Issues Center, University ofCalifornia, Davis, CA 95616; phone 916/752-2320. Reg-istration is $95 ($50 for students, higher education affili-ates, government, and nonprofit organizations) if mailedor phoned by November 22; $120 thereafter.

1994 Personnel Management Meetings. Gregory Billikopfhas scheduled a series of meetings to be held early in1994. To receive more details as arrangements are final-ized, contact Gregory at 209/525-6654.

Improving Employee Performance. January 13.Stockton. (To be presented in English)

Farm Safety. February 15, Stockton. February 16,Modesto. February 17, Merced. (English and Spanish)

Labor Law Update. March 17, Merced. (English) ■■

Citing the state’s economy and business competitionfrom other states as deciding factors in its decision, theCalifornia State Industrial Welfare Commission votedin late August against raising the minimum wage rate.In this decision, the Commission rejected its own earlierrecommendation to increase the rate from $4.25 to $4.50an hour next January.

The U.S. Department of Labor, however, is assessingthe federal minimum wage rate and may increase it by25 cents to $4.50 per hour. Secretary of Labor RobertReich has also suggested that the rate should be ad-justed automatically in the future to reflect inflation. ■■

No Change in California MinimumWage, But Federal Rate May Rise


NonprofitOrganization

U.S. POSTAGEPAID

Berkeley, CaliforniaPermit No. 374

NAME

ADDRESS

CITY STATE ZIP CODE

In accordance with applicable State and Federal laws and University policy, the University of California does not discriminate in any of its policies, procedures, or practices on the basis ofrace, religion, color, national origin, sex, marital status, sexual orientation, age, veteran status, medical condition, or handicap. Inquiries regarding this policy may be addressed to theAffirmative Action Director, University of California Division of Agriculture and Natural Resources, 300 Lakeside Drive, Oakland, CA 94612-3560. Telephone (510) 987-0097.

My principal occupation is:

Please add my name to the mailing list for Labor Management Decisions.

NEW SUBSCRIPTION

If you do not receive Labor Management Decisions through the mail and want to have a free subscription,please complete and send this form to: Agricultural Personnel Management Program, 319 Giannini Hall,University of California, Berkeley, CA 94720 (phone: 510/642-2296; FAX: 510/642-6108).

3.2

Agricultural Personnel Management ProgramUniversity of California319 Giannini HallBerkeley, CA 94720

Agricultural Personnel Management Program Staff:

Gregory Encina Billikopf, Area Agricultural PersonnelManagement Farm Advisor (Stanislaus, Merced, andSan Joaquin counties), UC Cooperative Extension, 733County Center III Court, Modesto, CA 95355 (phone209/525-6654)

Howard R. Rosenberg, Director, APMP, and Coopera-tive Extension Specialist, Department of Agriculturaland Resource Economics, University of California, Ber-keley, CA 94720 (phone 510/642-7103)

Stephen R. Sutter, Area Agricultural Personnel Man-agement Farm Advisor (Fresno, Kings, Madera, andTulare counties), UC Cooperative Extension, 1720 SouthMaple Avenue, Fresno, CA 93702 (phone 209/488-3285)

Betsey H. Tabraham, Coordinator, APMP, 319 Gian-nini Hall, University of California, Berkeley 94720(phone 510/642-2296)

Special contributors to this issue:

Richard Bruce, �Specialty Safety Training, P.O. Box940, Gerber, CA 96035 (page 6)

Valerie Horwitz, Graduate Student Researcher, De-partment of Agricultural and Resource Economics, andBoalt Hall School of Law, University of California, Ber-keley 94720 (page 1)

Susan R. Mendelsohn, Senior Associate, Labor andEmployment Law Group, Pillsbury Madison & Sutro,P. O. Box 7880, San Francisco 94120 (page 13)

Jan Vick, Information Officer, Communications De-partment, State Compensation Insurance Fund, 1275Market Street, San Francisco 94103 (page 9)

Contributors

Labor Management Decisions is published three times a year by the Agricultural Personnel Management Program, Division ofAgriculture and Natural Resources, University of California. Articles may be reprinted with credit.

We welcome readers' opinions, news items, and other information. Letters will be published as space permits.

agricultural personnel management program university …howardrr/pubs/lmd/lmd.3.2.fall93.pdf ·...

Documents