The following document, “Refuting the Absurdities of UFW’s Press Release – Setting the Record Straight” is a detailed response by Gerawan Farming, Inc. to a recent UFW press release.
On Tuesday, Sept. 5, one day after Labor Day, busloads of concerned farmers and farm workers will arrive at the Supreme Court of California in San Francisco to support Gerawan Farming and farm workers—and quite possibly 80,000 family farms in the state—against forced unionization in the first case on the Court’s agenda: Gerawan Farming, Inc. v. Agricultural Labor Relations Board (United Farm Workers of America, Real Party in Interest) and Consolidated Case, S227243 (Kline, P. J., assigned justice pro tempore).
Explaining the case history, David Schwarz, attorney for Gerawan Farming, Inc. from the Los Angeles-based law firm of Irell & Manella LLP, said, “This case began almost five years ago in mid-October of 2012. The United Farm Workers (UFW) sent a letter to Gerawan Farming demanding that the company resume bargaining over a collective bargaining agreement. The UFW had won an election at Gerawan in 1990 and was certified to represent the workers by the California Agricultural Labor Relations Board (ALRB) in 1992. After one preliminary negotiating session in early 1995, the union disappeared and wasn’t heard from by Gerawan for nearly 20 years.”
“The UFW resurfaced in late 2012 demanding negotiations,” Schwarz stated, “but after ten bargaining sessions, the union abandoned the bargaining table.” This scenario was similar to UFW’s behavior after having won several certification elections by California farm workers employed on separately-owned farms but was unable to obtain first contracts with many growers on behalf of these farm workers.
According to the ALRB website, all agricultural employees in California, whether or not they are represented by a labor organization (union), have certain rights under the Agricultural Labor Relations Act (ALRA or Act). The purpose of the Act is to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations. The ALRA became law in 1975.
The Act describes and protects the rights of agricultural employees to make their own decisions about whether or not they want a union to negotiate with their employer about their wages, hours, and other working conditions. Where the employees, through a secret ballot election, have selected a union to represent them, the Act requires that the employer bargain in good faith with the union concerning wages, hours, and other working conditions.
The Agricultural Labor Relations Board (ALRB) is the state agency established to enforce the Act.
“At this juncture, UFW invoked a process known as “Mandatory Mediation and Conciliation (MMC), a euphemism for forced-contracting, passed by the legislature in 2002 at the behest of UFW,” Schwarz explained. “Through MMC, the State of California imposes a contract on the employer and its farm workers at the union’s request. In Gerawan’s case, the failure to reach a contract can be explained by the failure of the UFW to show up and attempt to negotiate; however, that failure to bargain—or for that matter, the union’s complete abandonment of the Gerawan farm workers—was deemed irrelevant in the eyes of the ALRB.”
“The ALRB argued that the union certification in 1992 means the UFW remains the perpetual representative of Gerawan workers now and forever,” said Schwarz, “and until such time as the workers vote the union out through a petitioned election process known as decertification.” The ALRB disregarded both UFW’s failure to represent Gerawan farm workers in any successful contract negotiation and the UFW’s failure to qualify to collect union dues from Gerawan farm workers. Most significantly, the ALRB disregarded the legally-sanctioned and ALRB-supervised election on November 5, 2013, in which Gerawan farm workers had the opportunity to vote to decertify the UFW or not—the ballots of which have never been counted and are believed to be stored in an unknown, unsecured location.
“Let’s be clear,” Schwarz explained, “at no point after this union was certified until this union invoked the MMC process, was there an allegation that Gerawan refused to show up or refused to negotiate the terms of the contract. So this is not a case about a grower refusing to show up at the bargaining table or a grower inserting that the abandonment forfeits the right of the union to bargain.”
“Rather, this is a case about whether or not the union’s abandonment means that it forfeits the right to compel the State of California to force a contracting process on the workers. And that’s the key difference: between duty to bargain, which is a continuous bargain, and the right, as the union claims, to impose a state-ordered contract.”
Tal Cloud, president and co-founder of Fresno-based family-owned Paper Pulp & Film, Inc., a converter of printing and industrial papers, including raisin (drying) trays, is part of the team that organized the trip. Cloud said, “The UFW and the California ALRB are hoping the California Supreme Court will rule in their favor by forcing unionization on California farms and farm workers—the next flash point in the two-decade long battle between Gerawan Farming and the UFW.”
“People don’t understand that this is incrementalism,” Cloud said. “If the California Supreme Court rules against Gerawan, it literally puts every agricultural operation of any size in the state right in the “bulls-eye” for mandatory UFW unionization, and that is what is so concerning. And although people do not understand it, the laws are already all there; they just need to be formalized. So, yes, it is really scary.”
“The ALRB has power in these courts due to California legislators who have given the ALRB all these powers, but without checks or balances,” said Cloud. “So, you have an agency that basically plays god with people’s lives and there are no legitimate governmental organizations or courts looking at it, until now that [the forced unionization case] has come to the California Supreme Court.”
The upcoming California Supreme Court hearing follows the UFW’s appeal of a lower court ruling in favor of Gerawan on the same issue in 2015. “We are hoping that the Court goes by the law, and does not give [the ALRB and UFW] this kind of opportunity to really put all of our operations in California at risk for forced unionization and forced contracts,” Cloud said.
“The bus trip on Tuesday is to make a statement and not sit by silently. The hearing is at 9:00 A.M., and more than 300 people from the Valley are going. We are leaving at 3:30 AM, providing food for our passengers and protesting outside the Supreme Court. The UFW also will be rallying at the Supreme Court.
It remains uncertain if farm workers will be allowed inside the courtroom. Cloud said, “There has already been a lot of back and forth about not allowing any farm workers, or Silvia Lopez (the Gerawan farm worker spokesperson) into the courtroom. The attorneys are still fighting on that. But there will be a big protest, so to speak, outside.”
“There are public areas for us to be in, and we will be peaceful like all the other demonstrations that we have done,” Cloud said. “My hope is that everyone stays safe and we do not have extremists or rabble-rousers there who try to cause problems.”
Cloud said there is a glimmer of hope for the farming industry because the UFW lost to the lower courts. “But, you just don’t know. We are hoping these farmers, farm workers and protesters will bring attention to this issue,” he said.
Once the California Supreme Court hearing is completed, the court will have 90 days to make its ruling. “The reality is: If agriculture does not get behind the effort against MMC now, and the California Supreme Court reverses the lower court’s decision, literally every farming organization in California could face unionization. And that is a scary thought,” said Cloud.
“Likewise, if the ruling goes against the UFW,” Cloud said, “I am sure the case will go to United States Supreme Court, which would certainly be a do-or-die point for agriculture.”
Our ongoing coverage of developments among United Farm Workers (UFW), Agricultural Labor Relations Board (ALRB), Gerawan Farming, Inc. and California farm workers chronicles the continuing, increasingly complex quagmire that masquerades as protecting California farm workers’ rights.
In short, after a series of legal volleys between Gerawan Farming and ALRB this past spring, the ALRB, again, refused to disqualify ALRB Member Isadore Hall III, former state senator (35th District, D-Compton), from participating in specific Gerawan legal cases on the basis of alleged pro-UFW bias.
In legal terms, ALRB issued an administrative order on June 9, 2017, denying Gerawan Farming, Inc.’s May 23, 2017 motion for reconsideration of request to disqualify Isadore Hall III from participating in specific case deliberations and decisions regarding Gerawan Farming, Inc. Likewise, ALRB also denied Gerawan’s request for a stay of the proceedings pending resolution of Mr. Hall’s participation.
The UFW was certified as the bargaining representative for Gerawan’s agricultural employees in July 1992, after a 1990 election. After one preliminary negotiating session in February 1995, the UFW disappeared for almost two decades, having never collected dues, negotiated for a wage increase, attempted to bargain for a contract or filed a single grievance on behalf of Gerawan employees during their abandonment, according to an April 17, 2017, Gerawan news release.
In 2013, the UFW invoked a controversial 2002 Mandatory Mediation and Conciliation (MMC) law that allows the ALRB to draft and impose a “contract” on the employer and employees against their will. UFW also proposed that Gerawan employees pay 3% of their wages to the UFW or be fired. Fewer than 1% of the current Gerawan workforce voted in the 1990 election, and many current employees were not even born when that election took place.
California farm workers harvesting tree fruit
The majority of employees twice asked ALRB for an election to decertify the UFW. At the ALRB’s request, the Fresno Superior Court intervened and supervised the decertification petition process—the first time in ALRB history that a court oversaw an ALRB election.
On November 5, 2013, thousands of Gerawan workers cast secret ballots to decide whether to decertify the UFW. The ALRB impounded the ballots, which remain uncounted to this date in an undisclosed (possibly insecure) location.
In his January 13, 2017, letter of resignation to Governor Brown as ALRB Chairman, William B. Gould IV stated that the Agricultural Labor Relations Act [ALRA or “Act”] “is now irrelevant to farm workers, in particular, because, for the most part, they are not aware of the provisions, procedures, and rights contained in the law.”
“I have pointed out [in several speeches] that only one representation petition has been filed during the 34 months of my Chairmanship,” Gould continued. “More than 99% of the agricultural workforce appears to be unrepresented and the instances of unfair labor practice charges and invocation of the Mandatory Mediation and Conciliation Act (MMC) are few and far between.”
William Gould, IV, former ALRB chair
“Regrettably, though the Board adopted the proposed rule 14 months ago for worker education about the Act’s features, the rule has languished in the bowels of state bureaucracy for the past 14 months. My view is that this long delay is substantially attributable to the fact that the ALRB, unlike the NLRB, is not a standalone, independent administrative agency.”
Also on January 13, 2017, Governor Brown designated Genevieve Shiroma as Chair of the ALRB, where she had served as a member since 1999, an appointment that did not require Senate confirmation. Likewise, Governor Brown appointed Isadore Hall III, and the California Senate confirmed his appointment, despite Hall’s public history of pro-UFW activity and endorsements and allegations that he threatened farmers who opposed his nomination.
In “Farmers Deserve a Balanced Ag Labor Board,”a letter published in the Sacramento Bee on February 23, 2017 by George Radanovich, (president of the California Fresh Fruit Association), Joel Nelsen (president of California Citrus Mutual) and Tom Nassif (president of Western Growers Association), the authors explained, “The purpose of the Agricultural Labor Relations Act (ALRA) was to bring about a sense of justice and fair play during a tumultuous time in the farm fields of California in 1975.”
“When the ALRB was formed in 1975,” the authors stated, “it was with the understanding that membership would consist of two members representing labor, two representing agriculture, and one public or neutral member. Instead, the board has become one of the most contentious, lopsided administrative boards ever assembled by the state of California. The recent resignation of Chairman William Gould IV and his prompt replacement by former state Sen. Isadore Hall, D- Compton, only further illustrate this imbalance.”
Tree fruit farm worker in California.
In place of conducting outreach to all affected stakeholders, including agriculture, “in a matter of 48 hours, Gov. Jerry Brown appointed a termed-out state senator and failed congressional candidate who has no labor law background whatsoever but with strong ties to the UFW.”
Hall’s UFW ties were listed as “financial support by the UFW, personal ties with UFW President Arturo Rodriguez and raising the union banner while marching with the UFW. While a state senator, Hall was the principal co-author of two UFW-sponsored bills and voted in favor of two other bills that would make it easier to force ALRB-written contracts on farmers and workers. These close ties should disqualify him from the position where he will judge UFW issues almost daily.”
“There is no denying that the ALRB’S recent decision to prevent the disclosure of the November 2013 election results, from the high-profile decertification fiasco of Gerawan Farming of Fresno was to cover up the fact that most farm workers don’t want to unionize.”
“Today, California farm workers are protected by the strictest labor laws in the nation, and they decline to unionize because they value a good employer over a union. Brown should recognize this and rewrite the ALRA to guarantee employer representation on the board. California farmers deserve better than a lopsided Agricultural Labor Relations Board.”
On April 14, 2017, ALRB Administrative Law Judge (ALJ) William Schmidt issued an interim decision finding that Gerawan committed an unfair labor practice by refusing to negotiate “in good faith” with the UFW. Essentially Judge Schmidt contended, “Gerawan engaged in collective bargaining negotiations with the UFW with no intention of reaching an agreement covering the wages, hours, and other terms and conditions of employment for the employees in the collective bargaining unit.”
According to David Schwarz, counsel for Gerawan Farming, “This decision was riddled with legal and factual errors. The most glaring of these errors was the fact that ALJ Schmidt found that Gerawan failed to negotiate when it had already been ordered to [follow] a process [MMC] where traditional give-and-take negotiation had been replaced by government-imposed forced contracting.”
According to an April 17, 2017 Gerawan newss release, “The so-called MMC procedures are neither consensual nor voluntary. It is forced contracting. The ALRB tells the employer what wages to pay, what employees to hire, or fire, or promote, and what portion of the employees’ salary will be turned over to the union. The employer may not opt out and the employees are not given the choice to ratify or reject the so-called contract that will be forced on them, even if there are provisions detrimental to them.”
“There is a fundamental – and constitutional – difference between consensual bargaining and state-compelled contracting,” said Dan Gerawan, president and CEO of Gerawan Farming. “The ALJ obliterates this distinction.”
Gerawan added that MMC does not facilitate negotiations. Rather, it is an imposed agreement by force of law and Gerawan was compelled to abide by it.
Schwarz explained, “Per the ALRB’s own regulations, MMC kicks in only after the Board has certified that further negotiation between the parties would be futile.”
At that point, according to Schwarz, a government-appointed arbitrator steps in, hears evidence from each party, drafts a CBA (or collective bargaining agreement), which the Board approves and imposes on the parties by force of law. Since there is no place for negotiation in this process, Schwarz contends there is no logical or legal basis for ALJ Schmidt to conclude that Gerawan’s conduct during MMC could justify his finding that Gerawan failed to negotiate in good faith with the UFW.
Isadore Hall III with UFW flag prior to his appointment to the ALRB.
On April 28, 2017, Gerawan Farming, Inc. filed a Motion to Disqualify Board Member Isadore Hall from participating in the deliberations in the case above based on documented “sweeping prejudicial” statements Member Hall made against Gerawan.
“Our DQ motion was very compelling,” Dan Gerawan said. “Hall marched specifically against us and our employees and received an endorsement from UFW in return. It’s ridiculous that he was assigned to a job where 90% of his work will be to adjudicate UFW-related issues, and half of his work will be Gerawan-related.”
On May 18, 2017, the ALRB rejected Gerawan’s motions to disqualify ALRB member Isadore Hall and to request a stay in order to resolve the motion to disqualify.
“Hall’s disqualification would leave the ALRB without a current valid quorum of three members to hear the case,” Schwarz said, “thus lacking the statutory power to act. The Governor can resolve this issue by simply doing what the ALRA requires him to do – appoint two additional ALRB members, thus bringing the Board to its statutorily-requisite composition, which is five members.”
On May 23, 2017, Gerawan filed a Motion for Reconsideration of the Board’s Order Denying Motion to Disqualify Member Hall, repeating its request for a stay of the proceedings pending resolution of the motion.
“Gerawan filed this motion for reconsideration both to correct serious legal errors in the Board’s initial decision,” Schwarz said, “and to bring to light new evidence regarding the identity of an individual who participated in a conversation with Mr. Hall in which Mr. Hall stated that he was going to ‘get’ Gerawan once he was a member of the Board. This individual, Mr. Shaun Ramirez, provided a declaration in support of Gerawan’s first motion to disqualify Member Hall. However, Mr. Ramirez and his employer, concerned that the Board (or Mr. Hall) might retaliate against them for speaking out, initially asked that Mr. Ramirez’s identity remain confidential.”
“The Board initially refused to consider Mr. Ramirez’s declaration – precisely because he asked that Gerawan not reveal his name for fear of retaliation. After the Board denied Gerawan’s motion to disqualify Mr. Hall, Mr. Ramirez allowed Gerawan to file an unredacted version of his declaration with this motion for reconsideration. This declaration set out in great detail Mr. Ramirez’s interactions with Mr. Hall and Mr. Hall’s statement, in reference to Gerawan, ‘I am going to get their ass.’”
On June 9, 2017, ALRB denied both Gerawan’s motion for reconsideration to disqualify Board Member Hall from deliberations in the case and Gerawan’s request for reconsideration of an immediate stay of the proceedings.
“As discussed,” Schwarz said, “Gerawan filed a motion for reconsideration with an unredacted version of Mr. Ramirez’s declaration. The Board again refused to consider Mr. Ramirez’s detailed account of his conversation with Member Hall. The Board took the position that it was under no requirement to consider such evidence in a motion for reconsideration, as the declaration was not ‘newly discovered’ or ‘previously unavailable.’ The Board discounted Mr. Ramirez’s reasons for desiring anonymity, and disregarded the merits of his sworn statement, without explaining why the revelation of his identity did not require it to reconsider the basis [the anonymity of the declarant] for disregarding it in the first place.”
“Of equal significance is that Mr. Hall participated in deciding his own disqualification motion,” Schwarz added. “This violates a basic rule of due process and long-standing Board precedent that a member accused of bias cannot decide his own disqualification motion. Instead, Member Hall offered his own statement that he was not biased against Gerawan, albeit without denying or affirming the truth of Mr. Ramirez’s declaration.”
“Unlike Mr. Ramirez,” said Schwarz, “Member Hall’s ‘concurring’ opinion was not under oath.”
In the official ALRB Decision, Hall wrote, “I reject the claims of bias leveled against me by Gerawan and decline to recuse myself from participation in the deliberations in this case.”
In reaction to the Board’s refusal to disqualify Member Hall, Schwarz said, “Gerawan will appeal the Board’s decision. We are confident that this unprecedented and unconstitutional decision will not stand.”
“Farmers Deserve a Balanced Ag Labor Board,” by George Radanovich, Joel Nelsen, and Tom Nassif, Sacramento Bee, February 23, 2017.
Mandatory Mediation and Conciliation
By Laurie Greene, Founding Editor
Our ongoing coverage of developments among United Farm Workers (UFW), Agricultural Labor Relations Board (ALRB), Gerawan Farming, Inc. and California farm workers chronicles the continuing, increasingly complex quagmire that masquerades as protecting California farm workers’ rights.
As previously published, ALRB Administrative Law Judge William L. Schmidt issued a decision on April 14 in favor of the UFW, finding Gerawan violated labor law by negotiating a collective-bargaining agreement with UFW “in bad faith—commonly called “surface bargaining”—in the eight-month period from January 2013 through August 2013.
“Candidly,” said Anthony Raimondo, president and owner of Raimondo & Associates and attorney for Silvia Lopez, the Gerawan Farming employee and petitioner to decertify the UFW from representing Gerawan farm workers, “it is not surprising to me at all that this type of decision went against the company, because this ALRB has been in the pocket of the [UFW] … this whole time.”
“This is very much what happened to the workers in the [decertification] election case,” Raimondo said, “when the ALRB refused to count the ballots. They slammed the workers for exercising their right to free speech—to protest. They attacked the workers for engaging in actions of civil disobedience, and they denied the workers the right to vote, essentially, by refusing to count the ballots.”
On March 20, the UFW filed a claim alleging that Gerawan violated the ALRA by “proposing and insisting on” the exclusion of the farm labor contractor (FLC) employees from the terms of any collective bargaining agreement the parties might conclude.
“What the union was claiming here,” Raimondo explained, “is that Gerawan had made a contract proposal, as I understand it, that said that the employees that it receives from farm labor contractors would be excluded from the terms of the collective bargaining agreement. According to both the UFW and the Agricultural Labor Relations Board, making such a proposal alone represents “bad faith bargaining.”
“Bad faith bargaining is when you bargain without the intention to make an agreement,” Raimondo said. “In this case, for example, I don’t see how that could be possible in the Gerawan case because I’ve seen UFW contracts from the past that did exactly that—they agreed to exclude labor contract farm employees.”
“It is very common,” Raimondo explained. “I negotiate collective bargaining agreements all the time. It’s very common when you’re negotiating a collective bargaining agreement to look at other contracts in the same industry, with the same union, to get an idea of what they’ve agreed to in the past. I do not know how recently they’ve done it, but in past years, I have certainly seen contracts that the union has agreed to, where labor contractor employees were excluded.”
Among the mandates issued by ALRB Administrative Law Judge William L. Schmidt in his April 14 decision on Case 2013-CE-010-VIS is a requirement that Gerawan Farming cease and desist from persisting in its refusal to bargain with the UFW about the wages, hours and other terms and conditions of employment for those members of the above bargaining unit who are employed by farm labor contractors.
“I personally am very skeptical of this decision,” Raimondo commented. “It seems to me to be a stretch of the whole idea of bad faith bargaining, which is bargaining without the intention to reach an agreement, especially since what we’re talking about here is a proposal. But the fact that an administrative law judge of the ALRB made a decision in favor of the UFW does not shock me at all.”
“It’s difficult for me to see how proposing something that a union had agreed to in another contract, with another employer, would trigger an accusation of ‘bad faith bargaining.’ I would be surprised if this stands up an appeal, but to me, it’s most indicative of what we’ve seen from the ALRB over the last few years, and it’s likely to continue. The ALRB is no longer an objective, independent state agency that enforces the law. This is an arm of the United Farm Workers Union, whose mission is to save this obsolete union from the consequences of its own failures.”
“Biased as the original election decision was against the farm workers, the one thing that really stood out to me, even for this biased judge,” Raimondo said, “is even the ALRB admitted that the movement in favor of decertification of the UFW was not started by Dan Gerawan. It was a movement that started organically among the workers; they organized themselves to take the action that they wanted to take.”
“The fact is,” Raimondo continued, “these workers had their minds made up. They were disgusted by the UFW’s absence, they were disgusted by the union trying to force a contract on them, without even talking to them about it first. When they found out that this contract was going be shoved down their throats, they organized themselves and they fought back. The ALRB wants to discredit the entire movement that exists amongst the Gerawan workers.”
ALRB Notice to Gerawan Employees
“When you have a law that is designed to grant farm workers their voice, and their right to self-determination, as we have with this agricultural labor relations act, it seems to me to be an abomination, when you can acknowledge that workers organize themselves to be heard, and then you deny them that voice because of something that their employer did. What control do the workers have over their employer? The workers are now responsible for things that the employer does, that cost them their right to vote?”
“There is no basis in the law for this idea that the entire process is somehow tainted in a way that invalidates the election,” Raimondo said. “If you read the Agricultural Labor Relations Act and the case law, the law is very clear that when an election is held, the only time that we reverse the outcome of an election, or ignore the outcome of the ballots, is when there has been misconduct by a party that actually affected the outcome of the election.”
“You can go back to cases from the ’70s and ’80s,” Raimondo continued, “where the UFW had protestors out there at the polls, and employers complained that that affected or influenced the workers, or intimidated them in some way. Unless the employer could show that there was some actual effect on how the workers voted—that affected the outcome of the election—the election would be upheld.”
“No one in this case has ever produced the slightest shred of evidence that anything that Gerawan did or said ever affected how these workers voted, or how they felt about the union. This idea of a so-called ‘tainted election,’ is something that was invented in the last few years by ALRB judges. It doesn’t appear in the law. This whole process has been biased.”
“In fact, more than anything else, the thing that shaped how the farm workers felt about the union was the 17 years when the union wasn’t there. The union has never had to defend their absence from Gerawan employees because the ALRB never forces them to answer for it. The ALRB considers that to be irrelevant.”
“Yet, they slander Gerawan. They discredit the workers’ efforts to organize themselves. They want to discredit the entire movement that exists amongst the Gerawan workers. They deny the workers the right to vote, but they completely ignore the fact that the union failed in its most fundamental purpose, which is to represent workers.”
Featured Photo: Attorney Anthony Raimondo
As previously reported, on March 26, Monterey County Superior Court Judge Thomas Wills ruled that the UFW underpaid their own employees and mandated the UFW to pay a $1.2 million award that covers former employees, organizers, and other members of the class action suit, as well as penalties for California Labor Code Violations.
On April 27, Judge Wills added $772,000 to UFW’s court expenses for attorney fees incurred by Noland, Hamerly, Etienne & Hoss (NHEH), the law firm that represented former UFW employee Francisco Cerritos in the class action and Private Attorney General Act lawsuit on behalf of himself and other current and former UFW employees.
In issuing the additional costs to the UFW, according to a May 3 NHEH press release, Judge Wills stated that, “The Court has not placed an amount to destroy someone, and the union does serve a socially laudable purpose, but (the union) has to follow the law; and when it doesn’t do so at the expense of others and that results in drawn out, protracted and complex litigation, it cannot expect the Court to turn a blind eye to what the consequences of what that conduct are.”
As previously published, ALRB Administrative Law Judge William L. Schmidt issued a decision on April 14 in favor of the UFW, finding Gerawan violated labor law by negotiating a collective-bargaining agreement with UFW “in bad faith—commonly called “surface bargaining”—in the eight-month period from January 2013 through August 2013.
In an April 17 news release, Gerawan Farming called the April 14 decision of the Administrative Law Judge “erroneous” in that Gerawan did bargain in good faith. Further, Gerawan maintains that imposed mandatory mediation and conciliation does not constitute volitional negotiations. Gerawan will appeal this decision. The following are excerpts from this press release:
This unprecedented ruling would punish an employer for failing to “negotiate” the terms of a “contract” dictated and imposed by the ALRB. This is an in-house judge who is not independent; he is an employee of the ALRB. He criticizes Gerawan’s positions and second-guesses how it participated in what was supposed to be a confidential mediation and trial-like arbitration, but he never asked the only relevant question: How does this forced contracting process resemble a “negotiation”?
The so-called “mandatory mediation and conciliation” procedures (MMC) are neither consensual nor voluntary. It is forced contracting. The ALRB tells the employer what wages to pay, what employees to hire or fire or promote, and what portion of the employees’ salary will be turned over to the union. The employer may not opt out, and the employees are not given the choice to ratify or reject the so-called contract that will be forced on them, even if there are provisions detrimental to them.
Gerawan had no choice but to submit to this coercive process.
…The UFW did not bargain; it asked the ALRB to impose terms, based on a forced contracting process the California Court of Appeal has since ruled to be unconstitutional (and is now under review before the California Supreme Court).
To date, UFW’s unexplained 17-year disappearance from the Gerawan farm workers remains unexplained. During its absence, the UFW never negotiated a single wage increase for any Gerawan employee, nor did it attempt to bargain for a contract, collect dues, or file a single grievance on behalf of the employees. Meanwhile, Gerawan claims its workers are among the highest paid in the industry.
Yet, the ALRB’s controversial 2002 MMC provision appears to allow this AWOL union to force current Gerawan farm workers to choose between paying union dues or losing their jobs. The majority of Gerawan employees twice asked ALRB for an election to decertify the UFW. At the ALRB’s request, the Fresno Superior Court intervened and supervised the decertification petition and election process. This was the first time in the history of the ALRB that a court oversaw an ALRB election.
As yet, ballots cast by Gerawan farm workers in the sanctioned November 2013 election to decertify the UFW have never been counted, are being stored in an undisclosed and possibly an insecure location, and are the target of legal attempts by the ALRB and UFW to be destroyed.
The Court of Appeal is preparing to decide whether the ALRB may deny employees the right to choose who will represent them at the bargaining table—a seemingly basic American democratic right. The California Supreme Court is preparing to decide whether the UFW’s longstanding abandonment of Gerawan’s employees justifies this forced contracting process. California farm workers deserve a full and fair hearing on these issues.
Gerawan February 27, 2017 press release, “Gerawan Farming Asks Court to Order Disclosure of Information Related to ALRB ‘Whistleblower’ Allegations: A 30-year ALRB Employee Alleges Corruption Inside ALRB.”
By Laurie Greene, Founding Editor
In his 1984 Address to the Commonwealth Club of California, American labor leader and civil rights activist Cesar Chavez explained that he cofounded the National Farm Workers Association, the forerunner to UFW, in 1962 “to overthrow a farm labor system in this nation which treats farm workers as if they were not important human beings.” Yet recent developments among United Farm Workers (UFW), Agricultural Labor Relations Board (ALRB), Gerawan Farming, Inc. and farm workers illustrate the continuing, increasingly complex quagmire that masquerades as protecting California farm workers’ rights.
ALRB Chairman William B. Gould IV, who resigned on January 13, wrote to Governor Jerry Brown that the Agricultural Labor Relations Act (ALRA) is irrelevant to farm workers because they are unaware of the law’s provisions, procedures and rights.
“The instances of unfair labor practice charges and invocation of the Mandatory Mediation and Conciliation Act (MMC) are few and far between,” Gould explained. “There is no union organizing which might make workers aware of the [ALRA].” He added that only one union representation petition was filed during his 3-year tenure.
Nevertheless, under Gould’s watch, the ALRB doubled both its staff and taxpayer-funded budget to harass Gerawan and its farm workers.
Remarkably, on March 26, Monterey County Superior Court Judge Thomas Wills ruled that the UFW underpaid their own employees. Consequently, UFW must pay a $1.2 million award that includes funds to plaintiff former UFW employee Francisco Cerritos and other internal organizers, sums to other members of the class action suit for pay stub violations and penalties for California Labor Code Violations.
“It’s unfortunate that a union asks for laws to be respected,” plaintiff Cerritos said, “but [the union does] not respect them.” The UFW, Cesar Chavez’s legacy, has shortchanged its own workers.
Furthermore, ALRB whistleblower Pauline Alvarez, a 30-year former ALRB field examiner, filed a retaliation lawsuit in 2015 against the ALRB, which is still pending in Sacramento Superior Court. According to a February 27 Gerawan press release, Alvarez alleges that she recommended to former ALRB chief counsel Sylvia Torres-Guillén the dismissal of cases in which the UFW failed to cooperate and provide witnesses and evidence to support its allegations. Alvarez claims Torres-Guillén directed her and other field examiners “to dredge up witnesses that would assist the UFW’s position.”
Alvarez also asserts that she protested the settlement of farm worker cases against the UFW that contained sufficient evidence to establish UFW violations of the law. Stunningly, she affirms that the ALRB refused “to notify workers of their rights to file charges against the UFW when the UFW violated the workers’ rights,” and the “ghostwriting” of the UFW legal brief by the ALRB staff.
Perhaps most astonishing, the ALRB withheld this whistleblower’s report from ongoing legal proceedings with Gerawan and Gerawan farm workers for seven months.
Most recently, ALRB Administrative Law Judge William L. Schmidt issued a decision on April 14 in favor of the UFW, finding Gerawan violated labor law by negotiating a collective-bargaining agreement with UFW “in bad faith”— commonly called “surface bargaining”— in the eight-month period from January 2013 through August 2013.
To explain this decision in context, the UFW was voted in by Gerawan farmworkers in a runoff election in 1990 and certified by the ALRB in 1992. Significantly, UFW never reached a contract to represent Gerawan farm workers in wage negotiations with their employer. Neither did the UFW collect dues from or provide services for the farm workers, reportedly among the highest-paid in the industry.
The UFW effectively abandoned the Gerawan farm workers – that is, until 2012, after the California State Legislature amended the Agricultural Labor Relations Act to allow and accelerate an imposed mandatory mediation and conciliation process for union contracts. Thus, UFW offered a new contract proposal, via imposed mandatory mediation, to Gerawan farm workers.
Meanwhile, during the same time period in which Gerawan supposedly negotiated with UFW in bad faith, Gerawan farm workers were actively collecting signatures to petition the decertification of the UFW as their bargaining representative. The ballots cast in the ALRB-certified election in November 2013 have never been counted, to this day. Rather, they were sealed and stored in an undisclosed location, allegedly in ALRB custody.
Who is safeguarding California farm workers’ rights?
An ongoing conversation.
Chavez, Cesar. “Address to the Commonwealth Club of California,” San Francisco, CA, November 9, 1984.
Cloud, Tal and Matt Patterson, “The ALRB and UFW: Partners in Crime,” The Fresno Bee, 4/24/17.
Gould’s January 13, 2017 Resignation Letter provided by the LA Times.
Grimes, Katy, “ALRB Spent $10 Million To Prevent Gerawan Workers’ Ballots From Being Counted,” FlashReport, March 22, 2016.
Mohan, Geoffrey, “California Farm Labor Board Chairman Quits in Anger,” LA Times, January 13, 2017, http://www.latimes.com/business/la-fi-alrb-resignation-20170112-story.html
Sheehan,Tim, “Rising expenses, accusations of bias confront state agency in Gerawan farm-labor conflict,” Fresno Bee, July 31, 2015.
State of California Agricultural Labor Relations Board Decision And Recommended Order, signed by William L. Schmidt, ALRB Administrative Law Judge, on April 14, 2017.
Wu, Amy, “UFW ordered to pay $1.2M in wages, OT,” The Californian, March 29, 2017, updated March 31, 2017.
By Brian German, Associate Broadcaster
Governor Jerry Brown’s appointments to the Agricultural Labor Relations Board (ALRB) is causing quite a bit of concern for farmworkers and ag employers alike.
George Radanovich is the President of the California Fresh Fruit Association and a former California congressman who served from 1995 until 2011, representing California’s 19th District. He expressed his disappointment in so many United Farm Workers of America advocates being appointed to the ALRB.
“The board is there to protect the interests of the farmworker. What they’re doing is trying to protect the interests of the United Farm Workers, and that goes completely against what they were created by law to do,” Radanovich said.
William Gould, who was appointed by Governor Brown to chair the ALRB in 2014, announced his resignation recently. In his resignation letter, he noted that during his tenure, only one petition for unionization had come before the board. Gould also previously noted that the board spent more of its time on petitions from workers trying to kick out the UFW, rather than petitions seeking to join the union. That seems pretty telling as to how desirable the UFW is to farm workers.
“The UFW only represents about 2 precent of farmworkers in the state,” Radanovich said. “And the reason is, is because farmworkers are happy with the growers. I mean, there’s a very good relationship there, and they view the UFW as intrusive.”
Radanovich referenced what happened with Gerawan Farms as an illustration of the already problematic relationship between ALRB and the UFW. “Way back in the ’90s, there was a union vote to unionize, and the UFW just sat back and didn’t mobilize. They didn’t unionize the farmworkers. Twenty years later, they walk back into the operation and say, ‘Okay, it takes effect now.’ Where would that happen anywhere else?” Radanovich said.
The Gerawan workers decided to have a new election, with a majority of workers expressing their disinterest in joining the UFW. However, those votes were never officially counted.
“They refused to count the votes because it’s real obvious that they’re going to lose, the union would. So the ALRB says, ‘Well, we just won’t count the votes,’ ” Radanovich explained.
According to him, the employment landscape has changed dramatically since the establishment of the UFW in 1962, essentially making the UFW obsolete. “The reason UFW is so weak and they can’t get membership is because the farmworker is pretty well off today having a good relationship with their employer, and that’s better than union status. The farmworker really is in a better position if he’s got a good relationship with the grower, which accounts for about 90 percent of what’s out there in ag labor today,” Radanovich said.
Radanovich is also a wine grape grower in Mariposa and has a first-hand understanding of just how hardworking and appreciated farmworkers are. “Growers know that if they don’t take care of their farmworkers, there’s going to be nobody there to pick the fruit. So there’s a natural inclination for the farmer to want to take care of the farmworker. And none of that is accounted for in the way that the ALRB implements these rules.”
The ALRB is designed to be a neutral organization, but filling it with so many UFW sympathizers appears to be a significant conflict of interest. “It’s really unjust. The ALRB is not there to promote union membership; they’re there to protect the farmworker and I think they’ve lost their focus. … I mean, you only need a union in there if the grower has failed the farmworker and that’s not happening,” Radanovich said. “They’re taking good care of their farmworkers and giving them opportunity and providing them a living at the prevailing wage.”
As reported in, “Leaked Clinton emails include pledge to help UFW in fight with Gerawan Farming,” published by the Fresno Bee last Friday, presidential candidate Hillary Clinton, traded support for the United Farm Workers Union (UFW) endorsement and then conspired to undermine Fresno County-based Gerawan Farming and its farmworkers’ rights.
Assemblyman Jim Patterson (R-Fresno)
Assemblyman Jim Patterson (R-Fresno) has been supportive of the constitutional rights of farmworkers at Gerawan Farming whose votes cast in a sanctioned 2013 election to decertify UFW representation have never been counted. Under the jurisdiction of the California Agricultural Labor Relations Board (ALRB), the ballots were collected, sealed, and locked away. To date, election results and the location of the ballots are unknown.
In an exclusive interview, Assemblyman Patterson stated:
I think it’s the height of hypocrisy when a candidate for president of the United States goes behind closed doors and makes a backroom deal with an institution that is trying to deny the very privilege of having a free election to decide whether or not [farmworkers] want to be a part of the UFW.
Not supporting or recognizing the Gerawan workers’ right to an election to determine their own future—how they wish to organize, how they wish to value their labor and how they wish to conduct the relationship with their employer through elections—is to me, a slap in the face of the electoral process, of the fundamental constitutional right of everyone to be able to vote and to have a say in their labor and in their future.
It also demonstrates just how deep and wide this intertwining web of deceitfulness really is. Of all things, for the democratic nominee for President of the United States to make a deal over something that is happening in Central California, with 3,000 workers who decided that they wanted to have elections?”
After the election, the ALRB took and hid the ballots. The ballots were never counted. Election results were never announced. The election was not the expression of individual farmworkers exercising their right to vote, but considered [by the ALRB] an unfair labor practice.
[The Democratic nominee] decided to make a deal with the UFW over this. It tells me in no uncertain terms that the revolution that is happening with Silvia Lopez and the Gerawan workers—the independence, the thinking for themselves, the willingness to chart their own course with their employer—is frightening the UFW and the ALRB to its foundations.
To the degree that [the UFW] would literally go into a back room and get a pledge from the democratic nominee. . . Notwithstanding the facts—information about the election, the efforts of the ALRB and UFW to suppress [decertification] elections, and their choices for making decisions themselves. . . but to just simply decide to go low . . . and in this instance, go so low that she would be making a deal to abridge—destroy—the fundamental right of an election. That is just unconscionable.
California ag leaders hoped that Governor Brown would see how the AB 1066 overtime bill would actually hurt farmworkers and veto it. Now that the Governor has signed it, the following ag leaders weigh in on AB 1066 consequences: Norm Groot, executive director of the Monterey County Farm Bureau; Bryan Van Groningen, field manager for Van Groningen & Sons Farms; and Anthony Raimondo, a Fresno-based attorney who has been representing farmers and farm labor contractors for over 15 years, among them.
Norm Groot
Norm Groot anticipated, “The end result of AB 1066 is a big move to mechanized harvesting, which probably means a change in some of the crops that we’re growing here simply because currently we can’t harvest lettuce or strawberries or some of the other vegetable crops by mechanized means. Lawmakers are forcing the hand of the growers to move into crops that are less labor intensive and thus, save the [labor] cost,” said Groot.
Groot noted the inaccurate AB 1066 assumption—that an increase in overtime hours and pay will result from its passage. “We will probably see their hours cut back to the eight hours a day and forty hours per week,” he explained, as stipulated in the law. “Growers will adjust their planning schedules to the amount of laborers that they think they have available for harvest. It’s not an automatic given that we’re going to see all these paychecks increase, simply because we’re putting overtime at more than eight hours a day or after forty hours a week,” Groot said.
Groot added that farmworkers are not in favor of losing 33% of their income at this point. “I think overall, the unions have been supportive of this particular change, but the unions do not represent the majority of the laborers or field workers at this point,” he said.
“I think if you were to ask the average field worker whether he wants to work ten hours a day and sixty hours a week, he would probably say yes. Field workers want that income. They know they work in a seasonal business; they have to earn their income when they can,” he explained.
Bryan Van Groningen
Bryan Van Groningen
“Our farmworkers, our employees, love to put in the extra hours because this is the time that they’re making wages. Our company is accustomed to paying overtime if that’s what it requires,” said Van Groningen, “and the majority of our workers are already satisfied with the existing compensation structure.”
But Van Groningen noted the problem lies in what is considered overtime. With a shorter workday, overtime compensation rates will kick in much earlier than in the past, which will end up being a tremendous cost to the employer. “That’s going to cause our farm to mechanize a little bit more to try to get through the harvest more bit quickly because [the cost] is going to become too big of a burden,” he said.
Growers want to help their employees as best they can, but Van Groningen predicts reduced hours may become a necessity. “It’s just smart business. We don’t want to cut hours, but if we’re forced to because our bottom line is starting to become an issue, that’s what we’ll have to seriously consider,” he said.
Anthony Raimondo
Anthony Raimondo
Anthony Raimondo foresaw the effects of AB 1066 could put California at a disadvantage in the global marketplace. “At the very least,” Raimondo said, “employers will be forced to evaluate where they can cut production costs.”
“The increased overtime in some industries is going to drive automation,” said Raimondo. “So you are going to lose jobs because now it’s worth it for people to do the research and development to have more automation, more machine-harvested crops and less labor.”
Raimondo also expects some employers to add more H-2A temporary agricultural guest workers to make sure hours stay low enough to prevent their costs from increasing. “In the end, this is really going to cost farmworkers in terms of their real wages and it creates a massive economic disadvantage for California’s agricultural industry,” he said.
Policies like AB 1066 become increasingly problematic as the global agricultural industry continues to become more competitive. “Increasingly, agriculture has become a global marketplace in which we compete against countries that do not maintain the same labor standards nor the same environmental standards that we maintain, so our agricultural industry continues to remain at an economic disadvantage with the rest of the world,” noted Raimondo.
Featured photo: Norm Groot, Monterey County Farm Bureau executive director
California Assembly Bill 2757, which called to end the 10-hour workday for farm laborers (by enforcing overtime) and to illuminate extra work time opportunities, was voted down in June 2016, but a new version of the bill, AB 1066, is back on the drawing table.
Brad Goehring, treasurer of the California Association of Winegrape Growers (CAWG) Board of Directors and current chair of the CAWG State Government Affairs Committee, spoke about the process of fighting back on this bill. “We already beat it and we had a major victory in the California State Assembly earlier in the year. The author of the bill didn’t like that result, and it is all union-backed and backed by taxpayer groups like California Rural Legal Association, Inc. (CRLA),” Goehring said.
“But the pressure is back,” said Goehring, also a fourth–generation winegrape grower and owner of Goehring Vineyards, in Clements, near Lodi. “They did a dirty gut and amend bill¹, which is a slide of hand and basically reintroduces the bill again under a different bill number. This time it’s going to start in the Senate and we’re expecting a tough battle; but we’ve got a very organized coalition of Ag associations and we’re going to put the same energy into fighting this that we did before,” explained Goehring.
“It was a bloody fight in the Assembly,” noted Goehring. “But still, we’re optimistic as there are plenty of no votes from the party that wanted this to go through that we think it will be hard for the governor to sign even if [the bill] makes that far.
Goehring maintained, “The key is to educate legislators that the bill would hurt farmworkers because it would force farmers to minimize work hours to prevent overtime payroll. In fact, farmworkers are pushing for this second bill to fail.”
“Where the lack of understanding lies is the clear line between the urban legislators and the rural legislators,” Goehring commented. “The urban legislators, ironically, are the ones who already hav $15 minimum wage laws in their towns—San Diego, San Jose, Los Angeles, and San Francisco. These legislators are trying to cram it down our throats and our lives here in the rural areas. We’re not having any real hard times getting to agreement with either party, if they are in the rural areas. It’s the urban ones that are doing all the damage.”
“We’ve had these legislators out to our farms. We’ve walked away and let them talk openly with our employees, and our employees have told them they don’t want it,” Goehring said. “Our employees have told them that they want to make an honest living. They want to teach their kids how to do the same thing. Our employees have taken it one step further; we overheard them telling the legislators they are not even in favor of any of the entitlement programs because that’s not the way to make an honest living that they want for their kids.”
“With all that said,” Goehring concluded, “the urban legislators are turning their backs on and ignoring our employees. This is all about unions and CRLA. They don’t care about the employees—is basically what they’re saying,” noted Goehring.
¹GUT AND AMEND is when amendments to a bill remove the current contents in their entirety and replace them with different provisions. (Source: California State Legislature Glossary of Legislative Terms).
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