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The Stunning Workers’ Victory in New Mexico That You Haven’t Heard About

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On March 5, New Mex­i­co Gov­er­nor Michelle Lujan Grisham signed H.B. 364, a major over­haul of New Mexico’s sys­tem of pub­lic sec­tor labor rela­tions. Hailed by the Team­sters as a nec­es­sary mod­ern­iza­tion and the Amer­i­can Fed­er­a­tion of Teach­ers (AFT) as a ?“big step” in the fight for pub­lic employ­ees, many of the bill’s mar­quee reforms pro­vide pro­ce­dur­al over­hauls for New Mexico’s sys­tem of over 50 local labor boards, includ­ing a poten­tial greater cen­tral­iza­tion of labor rela­tions into the New Mex­i­co Pub­lic Employ­ee Labor Rela­tions Board. 

One stun­ning aspect of H.B. 364 went most­ly unmen­tioned in the pub­lic debate over its pas­sage: Sec­tion 7c of the bill made New Mex­i­co one of the few states to pro­vide pub­lic employ­ees the right to form a union through card check. That pro­vi­sion has already paid off: Orga­niz­ers with Uni­ver­si­ty of New Mex­i­co grad­u­ate assis­tants say they filed for union recog­ni­tion under the new law on Decem­ber 9.

Card check, some­times called major­i­ty sign-up, requires that employ­ees sub­mit cards signed by a major­i­ty of the pro­posed bar­gain­ing unit; after it’s con­firmed they have a major­i­ty, they have a rec­og­nized union. Nine states?—?Cal­i­for­nia, New York, New Jer­sey, Illi­nois, Mass­a­chu­setts, Ore­gon, Wash­ing­ton, Maine and New Mex­i­co?—?have strong mech­a­nisms for manda­to­ry recog­ni­tion using card check. A num­ber of addi­tion­al states?—?such as Kansas, North Dako­ta and Mary­land?—?have card check pro­vi­sions that apply to small­er groups of pub­lic employ­ees, and which may have weak­er pro­vi­sions. Two oth­ers, Okla­homa and New Hamp­shire, passed card check laws in 2004 and 2007, only to repeal them in 2011.

Card check was the major reform pro­posed by the failed Employ­ee Free Choice Act, which died in the Sen­ate dur­ing Barack Obama’s first term. Work­er advo­cates argue it makes it eas­i­er to form a union by elim­i­nat­ing the peri­od between work­ers show­ing inter­est in a union, and the actu­al elec­tion. Dur­ing that wait­ing peri­od, employ­ers often wage high­ly effec­tive and expen­sive cam­paigns to dis­suade work­ers from union­iz­ing using out­side pro­fes­sion­al ?“union avoid­ance” con­sul­tants?—?some­thing recent­ly cit­ed by the Eco­nom­ic Pol­i­cy Institute as a major fac­tor in the decline of unions.

Although card check isn’t part of the Pro­tect­ing the Right to Orga­nize Act, the pack­age of union-backed labor reforms passed by the House of Rep­re­sen­ta­tives in Feb­ru­ary, it’s still a part of the labor reform dis­cus­sion. Evi­dence is mixed. Sta­tis­tics on pub­lic sec­tor union den­si­ty shows that states that passed it didn’t see major expan­sions of pub­lic sec­tor unions. That may be due, in part, to the fact that almost all of them had high pub­lic sec­tor union den­si­ty when card check laws were passed (with the excep­tion of New York, which includ­ed card check in the Tay­lor Law passed in 1967). 

But New Mex­i­co is dif­fer­ent: In 2019, only 22.8% of its pub­lic sec­tor work­erswere cov­ered by a union con­tract, plac­ing New Mex­i­co 36th in the nation. This puts New Mex­i­co well behind most oth­er states with wide-rang­ing card check laws, which tend to have high­er union den­si­ty. This means there’s unprece­dent­ed room for growth?—?room that will pro­vide insight into whether or not card check expands union pow­er like work­er advo­cates claim.

There are already signs that it does. The grad­u­ate assis­tants recent­ly filed for recog­ni­tion announced their orga­niz­ing dri­ve in Octo­ber, choos­ing to affil­i­ate with the Unit­ed Elec­tri­cal, Radio and Machine Work­ers of Amer­i­ca. The cam­paign gained new urgency because of the pas­sage of card check and the Covid-19 pan­dem­ic. Accord­ing to Saman­tha Cooney, a grad­u­ate assis­tant in the Depart­ment of Polit­i­cal Sci­ence and a mem­ber of the Unit­ed Grad­u­ate Work­ers of Uni­ver­si­ty of New Mex­i­co orga­niz­ing com­mit­tee, grad­u­ates decid­ed they need­ed to ?“get down to it and get a super­ma­jor­i­ty by Decem­ber, and we end­ed up doing that.” Grad­u­ates had already begun orga­niz­ing pri­or to the law’s pas­sage, and they were ?“extreme­ly hap­py when [the bill was signed] because it made our jour­ney toward union­iza­tion that much eas­i­er,” says Cooney. 

With major employ­ee groups at the state’s largest employ­er orga­nized and the path cleared for union expan­sion, New Mex­i­co will be a test of whether labor law reform can help orga­nized labor claw back decades of lost ground. The signs look pos­i­tive?—?with grad­u­ate assis­tants lead­ing the way?—?that New Mex­i­co may expe­ri­ence a strong expan­sion of pub­lic sec­tor unions. If it does, it shows a road for­ward for labor else­where: Vir­ginia, Neva­da, Col­orado, Delaware, Con­necti­cut and Rhode Island all have Demo­c­ra­t­ic Par­ty tri­fec­tas, with no card check process for pub­lic sec­tor workers. 

Orga­niz­ing may have helped deliv­er reforms, too. H.B. 364 was intro­duced four months after the con­clu­sion of major orga­niz­ing dri­ves for tenure-track and adjunct fac­ul­ty in the Uni­ver­si­ty of New Mex­i­co sys­tem, and new fac­ul­ty union lead­ers lob­bied along­side oth­er pub­lic sec­tor unions for the leg­is­la­tion. Their win was trail­blaz­ing in both the changes to New Mex­i­co law that fol­lowed, and in that they proved orga­niz­ing at Uni­ver­si­ty of New Mex­i­co could suc­ceed. Accord­ing to Cooney, the suc­cess of the fac­ul­ty dri­ve encour­aged grad­u­ate assis­tants to move for­ward, and the fac­ul­ty union and indi­vid­ual fac­ul­ty offered sup­port for grad­u­ate work­ers seek­ing to form their union.

The suc­cess of card check in New Mex­i­co may prove impor­tant for work­ers else­where. But for grad­u­ate assis­tants at Uni­ver­si­ty of New Mex­i­co, the changed process and what it helped deliv­er?—?a union?—?means some­thing more imme­di­ate and per­son­al: pow­er. That’s impor­tant for Cooney. ?“We feel strength­ened by the num­bers around us,” she says, adding, ?“for myself, this process has not only made me opti­mistic about what my raise will be.” She con­tin­ues, ?“But I know I have oth­er grad­u­ate assis­tants that under­stand my cir­cum­stances, and have my back.” 

This blog originally appeared at In These Times on December 22, 2020. Reprinted with permission.

About the Author: C.M. Lewis is an edi­tor of Strike­wave and a union activist in Penn­syl­va­nia. 


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N.M. Field and Dairy Laborers Win Right To Workers’ Comp—Court Calls Exemption ‘Absurd’

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The New Mexico Court of Appeals ruled in June that excluding field and ranch workers from workers’ comp protection is unconstitutional. It was the second victory for New Mexico’s farmworkers in less than a year—and that’s big news in a low-wage sector made up primarily of immigrant workers, where victories tend to be few and far between.

The first victory came last August when farmworkers finally started getting paid the correct minimum wage. Farmworkers were routinely, and incorrectly, paid the federal minimum when they were entitled to the New Mexican minimum wage, which is 25 cents per hour higher. It only amounts to $8 or $10 a week, but it is significant for these workers, who are among the poorest in the United States.

And now, after six years of legal battles, the state Court of Appeals has upheld a District Court ruling that New Mexico’s farmworkers are not to be excluded from workers’ comp protection.

Farm work is among the most dangerous jobs in the United States, consistently ranking in the top 10 for injuries and death. The Center for Disease Control and Prevention has reported that 167 agricultural workers are injured every day. Despite this, only 12 states require full workers’ comp for farmworkers (13 now, including New Mexico); it’s optional in 16 states and required but limited in 21 others. Until the Court of Appeals’ decision, workers’ comp wasn’t required for New Mexico’s field workers or for ranch employees who worked directly with animals. That meant that on a dairy, for example, truck drivers and bookkeepers were covered, but milkers and workers moving the cows weren’t.

As In These Times reported in December 2014, on-the-job injuries are the rule, not the exception, in New Meixco’s dairy industry, and the lack of workers’ comp left some workers in dire economic straits:

Working with large animals poses a real risk of injury. In 2012, attorney Tess Wilkes was part of a team at the New Mexico Center on Law and Poverty (NMCLP) that interviewed about 60 workers from various dairies in the state. Almost 80 percent of the workers said they had never received any safety training.

Most of the cows are docile, but not all. “The younger ones are dangerous,” says Antonio Jiménez, who worked in a dairy outside of Roswell during high school. “They don’t know how to be milked and [they] kick. Sometimes the ones that have just given birth [are dangerous], too.” The NMCLP survey found that 53 percent of the workers interviewed had been injured on the job, often more than once, and sometimes seriously.

In March, Matías Soto was working as a milker at a dairy in southeastern New Mexico. Somehow, a bull had gotten mixed in with the cows and stuck in one of the milking parlor gates. As Soto was trying to free the bull, he says, “It lowered its head and attacked me, lifting me 6 or 7 feet in the air. I hit my head on the concrete floor.” His skull fractured. But, he says, he wasn’t taken to the ER in Artesia, about 40 miles away, for three hours. He then had to be airlifted to a hospital capable of handling his injury. The cost of the helicopter alone was more than $60,000, and Soto’s hospital bills were in “the tens of thousands of dollars,” says María Martínez Sánchez, a former attorney at the NMCLP who worked with Soto. And the dairy had no workers’ compensation insurance.

Its medical insurance covered Soto’s medical bills, but not all of the helicopter costs. Instead, says Martínez Sánchez, Soto went into debt, borrowing from friends and relatives, although he eventually received a small amount of money in a settlement with the dairy.

In 2009 NMCLP filed suit challenging the exclusion on behalf of three injured workers who had been denied workers’ comp based solely on the exclusion. Attorneys from the organization argued that excluding farm and ranch workers violated the state constitution’s equal protection clause.

In 2011, 2nd District Court Judge Valerie Huling ruled that the exclusion is, in fact, unconstitutional. The New Mexico Workers’ Comp Administration (WCA) appealed that decision, stating that the District Court had overstepped its jurisdiction. The WCA lost that appeal, and the three workers in the lawsuit had their cases heard and were awarded workers’ comp benefits. But the WCA argued that the District Court ruling applied only to those three workers. Employers took that as a cue to continue routinely denying coverage to all other farmworkers.

In February of this year, NMCLP attorney Tim Davis challenged that interpretation in a suit on behalf of two injured workers who had been denied workers’ comp benefits. Noe Rodriguez suffered a head injury when he was attacked by a bull at the dairy farm at which he worked and Maria Angélica Aguierre broke her arm when she slipped and fell in a chile field. The New Mexico Court of Appeals unanimously upheld the District Court’s ruling that the exclusion was unconstitutional . The court stated, “Our review of the history of workers’ compensation statutes back to 1929 has not revealed an articulable purpose for the exclusion” and that the exclusion was “without purpose or reason and leads to absurd results.”

The ruling doesn’t mean that Rodriquez and Aguierre will automatically receive workers’ comp benefits, bu it means that their claims, and the claims of other injured farmworkers, can now be heard.

Maria Martínez Sánchez, one of the lead attorneys on the 2009 case, says she is “very happy” with the appellate opinion. “This ruling finally tells agricultural employers that they … must care for their workers in the same way all other employers in New Mexico are required to do,” she says.

While advocates are heartened by the Court of Appeals ruling, they’re also realistic. Farmworkers in New Mexico and across the United States continue to work under harsh conditions for little pay. The majority of states don’t offer farmworkers full workers’ comp benefits; most deny them overtime pay and the right to collective bargaining. Wage theft is rampant, as is sexual harassment and abuse. As Martínez Sánchez says, “There’s still much work to be done.”

This blog was originally posted on In These Times on July 20, 2015. Reprinted with permission.

About the Author: The author’s name is Joseph Sorrentino. Joseph Sorrentino is a writer and photographer. He has been documenting the lives of agricultural workers on both sides of the U.S./Mexico border for 12 years.


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