The National Labor Relations Act doesn't cover farm workers. That's a big omission in Arizona, where 30,000 to 40,000 of them - mostly migrants - grow and harvest citrus fruits, grapes, lettuce and other seasonal produce.
And so in 1972 the states, expressing its intent to make migratory workers "free to organize" and choose unions to represent them, enacted the Agricultural Employment Relations Act.
The law was a peach in the eyes of the Arzona Farm Bureau Federation and various growers' associations. But it was a lemon in the eyes of Cesar Chavez's United Farm Workers National Union (UFW), which called it the growers' "brainchild." And more harmful than no law at all.
In the ensuing flap, Arizona voters put 108,309 validated signatures - 6,000 more than required - on petitions to recall then - Gov. Jack William (R) for his role in getting the bill enacted.
Litigation blocked the recall - the largest in Arizona history - until after Williams term expired in 1974. Meanwhile, however, the UFW went into U.S. District Court in Phoenix to attack the law on itself.
Last April, a three-judge panel ruled for the union, finding the act "unconstitutional in its entirety."
Its "fatal flaw" is that it prevents the workers from organizing "to exercise their right of freedom of speech and assembly" under the First Amendment, Judge C.A. Muecke wrote in the opinion for the panel. Together with other provisions, this results in "a complete perversion of the expressed intent of the legislature," he said.
Now the case is before the Supreme Court, which has been petitioned by Gov. Bruce Babbitt, the federation and growers' associations to review the decision. The outcome is expected to influence efforts in other states to make it nearly impossible for the UPW to organize.
One of the most controversial provisions of the law is intended to prevent union-instigated consumer boycotts by making it an unfair labor practice for a union to discourage consumers from buying any agricultural product with the use of "dishonest, untruthful and deceptive publicity." This violates free speech "on its face," Muecke said.
Another key section lets an employer bar organizers from his property so that they can't communicate there with workers.
This, too, is an unconstitutional restriction on free speech, because most farm workers are migratory "and generally reside in areas or labor camps located on the employer's property," the judge wrote.
If most of a grower's employees are to be enabled to participate in a bargaining election, it must be held during the period of peak employment, because most of them "follow the harvests."
But the "threash-hold" provision governing such elections is written so that it "encourages employers to commit those types of unfair labor practices which result in election coercion and, in turn, to a 'no union' vote," the judge said. Thus an employer could delay bargaining for years, he said.
In fact, the UFW says, workers and unions governed by the law petitioned for only seven elections in five years, while under the California farmworker law they petitioned for nearly 400 elections in the first five months after its enactment.
Muecke termed the "thresh-hold" provision a violation not only of the First Amendment, but also of the constitutional guarantee of due process of law, "because of the excessive length of th procedures permitting delays of unit representation elections . . ."
He added that such factors as the seasonal nature of the work, the constant flow of workers form one job site to another, "the broken routines, the mobility and interchange with different employers, and the short span of working periods . . . makes it impossible" for the state labor board "to conduct a timely election to effect the purposes of the act."