By Andy Nelson, The Packer
Citing potential legal headaches, a Florida tomato growers' association is urging its members not to honor deals two fast-food giants cut with a labor-rights group.
Reggie Brown, executive vice president of the Maitland-based Florida Tomato Growers Exchange, said attorneys have warned the organization that deals the Immokalee, Fla.-based Coalition of Immokalee Workers made with Yum! Brands Inc., Irvine, Calif., and McDonald's USA, Oak Brook, Ill., risk violating federal and state antitrust, labor and racketeering laws.
Under the deals, both Yum! and McDonald's have agreed to pay an extra cent per pound on all Florida round tomatoes they buy. The extra money would boost wages and benefits for workers who pick Florida tomatoes. Yum! made its deal with the coalition in 2005, McDonald's in April.
The legal concern, Brown said, centers on a third party -- the coalition -- playing a role in a business transaction between a Florida grower-shipper and Yum! or McDonald's. Those transactions, several attorneys told Florida growers, could be illegal.
Their arguments were convincing to Jay Taylor, president of Palmetto-based Taylor & Fulton Inc. and chairman of the Maitland-based Florida Fruit & Vegetable Association.
"If a customer comes to me and says the only way he'll buy from me is if I participate in an agreement with a third party, I won't do it," he said. "I am not going to be part of something that is not legal."
Brown said the third-party scenarios created by the deals with the coalition are different from the use of third-party food safety certifiers. The former involve wage rates and thus are strictly regulated by labor law, unlike food safety certification agreements.
Refusing to play ball with the coalition does not, however, necessarily mean tomato growers can't continue to do business with Yum! and McDonald's, Brown said.
"We haven't had any feedback yet, but hopefully they recognize the legal concerns we have," he said.
From a business standpoint, Brown and growers are worried that McDonald's, Yum! and any future customers that agree to pay the extra cent per pound could choose to source their tomatoes from Mexico or another growing region to avoid paying the higher price in Florida.
Brown and Taylor also were critical of the coalition's tactics in securing the deals. Brown criticized the coalition for "going upstream" instead of dealing directly with farmworkers and their employers.
Taylor said the coalition was guilty of nothing short of extortion.
"They tried to organize our workers and failed miserably, so they took action against our customers," he said. "They went to our employees, and our employees told them to get lost."
Taylor and Brown also say the coalition has unfairly portrayed the labor practices of Florida tomato growers. Brown said the average wage for a tomato picker in Florida is more than twice the federal minimum wage and almost twice Florida's minimum wage.
Taylor said growers' compliance with multiple layers of regulations, including the Migrant and Seasonal Agricultural Worker Protection Act, ensures that workers are treated fairly.
"This is a remarkable reflection of how out of step with the modern world much of Florida agriculture is today," said Lucas Benitez, co-director of the coalition. "Throughout the world thousands of growers of crops, from coffee to bananas, have been happy to join the fair trade market and accept a higher price from their buyers that they then pass on to their employees in the form of higher wages and respect for fundamental labor rights."