Retaliation for Organizing

It wasn’t the first time Hernandez had been hit with retaliation. In 2014, he was demoted after a supervisor realized he was meeting with the WCCNY.

Both acts came to public prominence in 2016, when the New York Civil Liberties Union (NYCLU) filed a complaint on behalf of Hernandez, the WCCNY, and the Worker Justice Center of New York (WJCNY) alleging that farmworkers’ exclusion from collective bargaining and organizing protections violated the New York State Constitution as well as farmworkers’ rights to equal protection, due process, and freedom of association.

Employees with collective bargaining protections cannot be terminated for seeking to improve their workplace conditions. In other words, had Hernandez and Pinto been covered under the law, their firing would be illegal. “This was a perfect example of how even the most minimal discussions, something that did not rise to the level of organizing, is not allowed,” said Erin Harrist, NYCLU’s lead lawyer on the lawsuit.

Without the right to organize, farmworkers are unable to challenge dangerous, even lethal, working conditions. The industry has one of the highest fatality rates, and according to a 2017 report, between 2006 and 2016, at least sixty-nine people died on New York dairy farms.

Hernandez experienced the safety issues firsthand on Marks Farm, where he worked an average of six days and seventy-two hours a week from 2012 to 2015. When he was first learning to milk, a cow stepped on his hand, injuring it. He received no medical help, even though he says a farm manager witnessed the accident and saw the blood.

Workplace accidents weren’t the only threat to workers’ well-being. In the spring of 2015, a manager and the son-in-law of the farm owners, Mike Tabolt, was accused of beating up a dairy worker named Francisco. A few months later, Tabolt — who had a lengthy criminal record for violent assault offenses — would fire Hernandez.

In Hernandez’s retelling, he was covering a milking shift when Tabolt arrived with a check in his hand and a paper to sign. Because the paper was printed in English, Hernandez couldn’t read it. “I felt very upset and had a lot of concerns,” Hernandez said. “I feared they would call Immigration on us, since they knew that I don’t have a legal status.”

Farmworker Rights and Consumer Action

On May 23, 2019, the Appellate Division of the New York State Supreme Court released a 4-1 decision in favor of Hernandez, ruling that excluding agricultural workers from collective bargaining protections was unconstitutional.

The timing was fortuitous: the New York legislative calendar was due to end in mid-June, and a bill to beef up labor protections, the Farm Laborers Fair Labor Practices Act (FFLPA), was still awaiting floor debate. After a final lobbying push, Governor Andrew Cuomo signed the FFLPA, granting farmworkers the right to overtime pay, a day of rest, and collective bargaining protections.

The law, in many ways, is quite modest: overtime only kicks in after sixty hours, and workers are to be paid time and a half if they elect to work the extra day. Workers are not allowed to strike or engage in a slowdown — a significant loophole that makes it harder for farmworkers to advocate for themselves — though the bill does require employer neutrality (meaning bosses cannot engage in anti-union activity) and card check (employers must recognize unions if a majority of workers sign a card).

The FFLPA is the product of a two-decades-long organizing effort spearheaded by the Justice for Farmworkers Campaign. Tying together labor groups like the WCCNY, religious associations, and students, the campaign worked to educate consumers and lobby legislators. Their efforts kept the bill alive year after year.

In the meantime, another farm-related effort was gaining popularity. The food justice movement successfully marketed local, organic, and small farms as an ethical and conscientious alternative to industrial agriculture. Chains like Sweetgreen proudly listed the local farms from which they sourced their produce. Consumers with means and a conscience flocked to organic produce in New York and around the country.

Consumer movements demanding change can make a difference. Consider the United Farm Workers boycotts of the 1960s and ’70s. Workers in the fields of California fighting for union rights asked consumers to forgo buying non-union grapes. The boycott quickly became a cause célèbre, with unions and religious groups endorsing the action, supporters picketing stores selling non-union grapes, cities changing their purchasing practices, and progressive politicians pledging their support. California growers, recalcitrant for so many years, finally began to make concessions.

“In 1970,” Katie Anastas writes, “26 grape growers in the Delano area signed contracts with the UFW. This was a major victory for the union, since these growers produced 50 percent of the table grape crop. The UFW expanded beyond the Central California region and began organizing farm workers in Northern California.” The key to the campaign was anchoring consumer action in worker organizing: it originated with a call from workers themselves and was linked to action on the ground. It built concrete power for farmworkers — and it made further organizing possible.

Today’s local food movement can’t say the same. While well-meaning consumers may buy local food in the name of sustainability and supporting local farmers, their purchasing power typically does not translate into improved working conditions. They’ve created an alternative market, not an alternative farming practice. In fact, extolling the local farm economy can obfuscate the brutal realities of farm work, masking poor labor conditions and egregious abuses. Smaller farms, for instance, are potentially more dangerous than larger ones since the Occupational Safety and Health Administration (OSHA) is not allowed to inspect farms with fewer than eleven non-family employees, even in the case of a fatality.

Building Power for Agricultural Workers

The Justice for Farmworkers Campaign was attempting to do something much different than the mainstream local food movement. At its core, the campaign relied on the stories and power of workers themselves. At times, this created tensions with the liberal nonprofits involved. For example, while Fuentes says she and her fellow organizers were grateful for the NYCLU’s involvement, she initially objected to the way the issue was portrayed in the media: “It was advancing a narrative that the workers and organizers are dependent on a big nonprofit to save us, and that isn’t the truth. And so we had to say, ‘We did this work.’ It’s important we reclaim it.”

As Andrea Callan, managing director of WJCNY, put it, “Workers have to decide on their own what kind of direction they want to go in order to further their own self-determination. [Organizing] gives the voice back to workers who have been silenced.”

Still, building that power in New York has been no easy task. In addition to the intimidation farm owners can inflict on workers — many of whom are undocumented and live on the farms they tend — the isolation and decentralization of farm work creates significant barriers. It’s infinitely easier to organize a big factory than a swath of rural New York, where farms are spread out and it can take hours (or even longer in winter snow) to bring workers to a central location.

In addition, most of the state’s dairy farms are within one hundred miles of the border — an extra-constitutional zone where immigration authorities can set up checkpoints and, within twenty-five miles, conduct warrantless searches. Given the climate of fear among undocumented workers, it can take several visits by an organizer before a worker is willing to open up about their needs, even if their rights are being violated.

There have been successes elsewhere in the recent past. After six years of organizing with Mt. Olive Pickle Company farmworkers, in 2004, the North Carolina–based Farm Labor Organizing Committee (FLOC) accomplished the unimaginable: they organized H-2A guest workers. Integral to this effort was a contract that allows workers to return each year, preventing blacklisting for union activity. Since then, the ten-thousand-plus workers recruited by the North Carolina Growers Association to work on farms in the state have been protected by FLOC’s contract.

While FLOC organized among workers, the Coalition of Immokalee Workers campaigned allies and consumers to launch the Fair Food Program (FFP), which requires participating buyers to commit to only purchasing tomatoes from Florida farmers in compliance with a strong code of conduct and FFP protocols. A year after its establishment, an FFP representative told us that wage theft had ended and workers were using the organizing resources available to them.

Back in New York, dairy workers have had some success building trust and growing their power through conference calls and in-person meetings. The goal now, Fuentes says, is to use the recently passed legislation not as a panacea but as one instrument to advance farmworkers’ rights.

“Farmworkers are protected by the law, but it’s just a paper, it’s a tool. It won’t work if we don’t use it,” she said. “The difference now is that we are all together. Now we have witnesses and the law on our side to reference and use as a shield.”