Farmworkers Win One

Barry Bedwell: Court Decision Returns Constitutional Rights to Farmworkers

By Patrick Cavanaugh, Deputy Editor

Barry Bedwell, president of the Fresno-based California Fresh Fruit Association, discussed the implications of a unanimous decision on May 9, 2016, the California Fifth District Court of Appeal struck down as unconstitutional a 2002 law that stripped workers of their constitutional right to seek invalidation of unlawful Agricultural Labor Relations Board (ALRB) decisions in Superior Court.

Barry Bedwell, president of California Fresh Fruit Association

According to a Gerawan press release:

This case arose after a Gerawan farmworker Lupe Garcia filed a lawsuit in Fresno Superior Court in which he claimed that the First Amendment was violated when the ALRB refused to permit him to silently observe the ALRB’s “on the record” proceedings concerning the terms of a contract to be imposed on him and all other Gerawan farm employees. Gerawan Farming supported Mr. Garcia in the Court of Appeal and in the Superior Court, and filed its own action seeking the same relief. The 39-page decision in Garcia and Gerawan Farming, Inc. v. ALRB, Case No. F069896, held that the California Constitution barred the California Legislature from stripping workers of the right to bring claims in Superior Court. In reversing the dismissal of Mr. Garcia’s lawsuit, the Court of Appeal directed the Superior Court to hear the employee’s case.

Bedwell said while this was good news for the farmworkers because they can’t be barred from secret meetings, “it’s even more technical than that. It says [ALRB] cannot deny [farmworkers] the right to sue to be there.” Previously, according to Bedwell, ALRB claimed farmworkers “could not sue in Superior Court on this issue of being denied access to the mandatory mediation hearing. This Court of Appeals has decided that was unconstitutional, that [farmworkers] can now move forward and sue under the theory that their First Amendment rights were denied.”

“I don’t think [the court decision] solves the entire issue,” Bedwell said, “but it clearly indicates the ALRB has really overstepped their boundaries, not only in the case of denying access to these farmworkers, but not allowing the ballots to be counted. What it really indicates is the ALRB is once again denying farmworker rights at a time they should be representing them. This is just more evidence that, unfortunately, the ALRB seems to be more directed towards protecting the union rather than the workers’ rights. This is a continuing pattern; it’s clear that the ALRB is not representing the farmworkers, they are representing the union, and that’s unfortunate.”

In terms of next steps, Bedwell thinks the ALRB may decide—as a policy—they won’t deny access. He commented, “It essentially may have accomplished what the farmworkers wanted in the whole question—of just being able to observe the mandatory mediation process. These were people who were going to be subject to the [union contract] terms, but the ALRB said, ‘Oh no, we don’t want you in. We only want the union representatives in.’ That’s pretty poor,” stated Bedwell.

“The system unfortunately is so biased and heavily weighted toward organized labor,” he continued. “I’m not sure what it’s going to take. I suspect that if we’re going to find justice for Gerawan employees, it’s not going to come through the agencies in Sacramento; it’s going to have to come through the courts.”

California Ag Today2016-05-31T19:24:04-07:00May 11th, 2016|

ALRB Discharges Farmworker Vote, Part 2 Exclusive Interview with Attorney Raimondo

Anthony Raimondo, “Let the People Vote!”

In an exclusive interview with Fresno attorney Anthony Raimondo, California Ag Today’s Patrick Cavanaugh discussed the significance to farmworkers of yesterday’s Agricultural Labor Relations Board (ALRB) decision to “set aside” Gerawan farmworker votes from the ALRB-sanctioned November 2013 election to decertify the UFW. Raimondo is the attorney for the UFW union decertification petitioner, Silvia Lopez, an employee of Gerawan Farming, a Fresno County diversified tree fruit operation.

California Ag Today: The central California agricultural industry is flabbergasted this week following the California Agricultural Labor Relations Board’s decision to set aside—and not count—the ballots of 2,600 Gerawan farmworkers cast in 2013. What is your take on this decision?

Anthony Raimondo, Fresno County-based attorney

Raimondo: It is unfair because from the outset, we have argued all along that this entire process has been unfair and has denied the workers their “day in court” and their due process. From the first day that Silvia Lopez walked into the ALRB office in Visalia, the greatest opposition to her filing for an election has been the ALRB itself.

We had a judge who couldn’t stay awake for the hearing. We have board members who are—shall we say at the least—biased. In the case of ALRB board member, Genevieve Shiroma, we have a person whose entire career is intertwined with the UFW’s primary paid lobbyist. There’s no way these folks can be objective in a case that has this kind of stakes in the UFW.

And this case is all about money. If they can get a contract with Gerawan, the UFW will essentially double its revenue and double its membership overnight.

California Ag Today: What is at stake for the UFW?

Raimondo: There is a clear reason why the State would end up spending $10 million on this case: They want to silence these workers and save the UFW. There is no union organizing in the field; the UFW has abandoned organizing. They’re not out there getting the workers to support and join the union.

They’re in the courtroom and in the back halls of Sacramento, making deals to take control of these workers’ future, whether the workers want it or not.

California Ag Today: In denying the ballot votes to be counted, the ALRB said it was unfair that the employer—Gerawan in this case—gave the workers a pay raise without permission of the state government or the UFW.

Raimondo: But even with this illegitimate process, the only thing that the Board actually found was that the employer violated the law—not the workers.

So the Board is going to punish the employees by destroying their ballots, like some sort of third-world dictator. What control does the farmworker have over what the company does? What can the workers do to protect their right to vote if their right to vote can be thwarted by what a third party—the company—does?

The workers’ right to vote shouldn’t be in the hands of the company, or of the union, or of anybody else. The California Constitution says that when people cast votes in our state, those votes must be counted. That’s apparently true, unless you’re a farmworker.

California Ag Today: And the agricultural industry is asking, “How can the State of California and the state ALRB get away with this?”

Raimondo: It’s appalling what they’ve done here. It really is appalling. They’ve decided that the best way to control the behavior of an employer is to punish the workers who have no control over that employer.

You know there’s no reason that, if they believe that that election was tainted, they can’t run another election. I’ve spoken to Silvia, and Silvia’s not afraid of letting the people vote. I wonder if the UFW is as brave.

Let the people vote.

California Ag Today: Is the ALRB and the UFW requesting a new vote?

Raimondo: No, they want the farmworkers to stand off to the side and be quiet while the UFW makes the deal through political moves to take their money.

California Ag Today: What’s next?

Raimondo: We are planning, on Silvia’s behalf, to file briefs in the ongoing mandatory arbitration case that is sitting before the California Supreme Court. The UFW has a brief due and the Court has not yet set a hearing date.

We’re hoping that the Supreme Court will be kind enough to give us the opportunity to speak in that case, as the Court of Appeal did. So that case still provides us with a very real chance to vindicate the workers’ rights.

In the election case that was just decided, we are planning on filing a petition for reconsideration with the Board. We think that they need to think twice before they destroy people’s ballots.

California Ag Today: The ballots have not been destroyed at this point, right?

Raimondo: We don’t know. That’s a question only the ALRB can answer.

From my view, I would hope that they were not rushing to have a bonfire today.

I would think that because these votes are precious and irreplaceable, the Board would show the restraint to withhold taking any action on the ballots until the parties have had the opportunity to pursue the various legal options that we have to challenge this decision and make sure they are doing the right thing.

_______________

Resources:

ALRB Decision and Order Case No. 2013-RD-003-VIS, 39 ALRB No. 20, April 15, 2016)

Agricultural Labor Relations Act Employee Questions & Answers ELECTIONS

Petitioner Silvia Lopez’s Petition to Disqualify Board Member Shiroma, ALRB Case No. 2013-RD-003-VIS (39 ALRB No. 20)

California LABOR CODE SECTION 1140-1140.4

Pick Justice

California Ag Today2016-05-31T19:24:06-07:00April 19th, 2016|

ALRB Discharges Farmworker Vote, Part 1

ALRB Abolishes Gerawan Farmworker Vote

By Laurie Greene, Editor

The Ninth Amendment to the Constitution of the United States pays tribute to “unenumerated” rights of citizens—rights not specified—such as the right to travel, to vote, to keep personal matters private and to make important decisions about one’s health care or body, as upheld by the Supreme Court over the years. Likewise, the cherished American legal notion of “No taxation without representation,” generally attributed to James Otis embraces “actual representation” over “virtual representation.”

Yet, Court documents issued on Friday, April 15, 2016, by the Agricultural Labor Relations Board (ALRB) upheld the September 17, 2015 decision by Mark R. Soble, Administrative Law Judge, ALRB, to set aside farmworkers’ ballots in a 2013 election to decertify mandated representation by the United Farm Workers of America (UFW).

The following paraphrased issues were among ALRB findings:

–Gerawan Farming committed unfair labor practices under California Labor Code section 1153 by providing unlawful assistance to the decertification effort against the UFW, directly soliciting grievances and granting employees a wage increase.

-Petitioner Silvia Lopez, a Gerawan farmworker, solicited and received an unlawful donation from an association of which Gerawan was a member.

The ALRB concluded these unlawful actions (a) make it impossible to know if the signatures collected represent the workers’ true sentiments and (b) created an environment, which would have made it impossible for true employee free choice when it came time to vote.

“As a result of the employer’s unlawful support and assistance,” Judge Soble, in September 2015, called for “setting aside the decertification election and dismissing the decertification petition. Given that the unlawful conduct tainted the entire decertification process, any election results would not sufficiently reflect the unrestrained free expression of the bargaining unit members.”

Thus, the UFW, voted in by Gerawan farmworkers in a runoff election in 1990, certified by the ALRB in 1992, never reached a contract to represent the farmworkers in wage negotiations with their employer, and did not collect dues from or provide services for the farmworkers, reportedly among the highest paid in the industry, effectively abandoned the Gerawan farmworkers.

When the California State Legislature amended the Agricultural Labor Relations Act in 2002 and 2011 to allow and to accelerate the process for imposed mandatory mediation and conciliation for a union contract, UFW offered a new contract proposal—after having abandoned the Gerawan farmworkers from 1995 and 2012.

Despite a lower court’s rejection of the so-called mandatory mediation and conciliation provision, the ALRB appears to have been successful in forcing UFW representation and mandatory dues collection on current Gerawan employees, after 25 years of ineffective UFW involvement that encompassed about 18 years of no involvement whatsoever—and certainly without counting their votes.

Click here to read, “ALRB DISCHARGES FARMWORKER VOTE, PART 2 – EXCLUSIVE INTERVIEW WITH ATTORNEY RAIMONDO: LET THE PEOPLE VOTE!”

California Ag Today2016-05-31T19:24:06-07:00April 19th, 2016|

Henry Gonzales, Ventura County Ag Commissioner

Ventura County Ag Commissioner Henry Gonzales Started as Fieldworker

By Patrick Cavanaugh, Deputy Editor

California Ag Today interviewed Henry Gonzales, Ventura County Ag Commissioner, who has served in that post for 7 years. His unique story begins with his birth in Fresno and his work in the California fields at an early age.

Gonzales: My parents were migrant farmworkers, and back in the day, there was no day care for us, so they took us to the fields with them. I like to think I my career started in agriculture when I was old enough to pick up a plum and put it in their basket. We worked a lot in the Fresno area, but also in the San Jose area and Imperial County, following the crops as most migrant farmers do.

CalAgToday: You started working as a child, and what happened next? Did you and your family continue as a farmworkers?

Gonzales: We continued farm working for many years. We used to live in farm labor camps, whenever they were available. Sometimes we stayed with relatives or anywhere we could find. There were times when the only places we could find were the trees in the orchard, so sometimes we stayed there.

CalAgToday: So, when you were 13, you went off on your own?

Gonzales: Yes, when I was 13, I did what I thought I should do—work under my own social security card. I started working in the fields around Salinas. I was actually in the same lettuce harvesting crew with my grandfather who was 69 at the time.

CalAgToday: Well, Henry, walk me through it. How many years did you work with your grandfather?

Gonzales: I worked every summer and weekends since I was 13 through high school in the fields around Salinas.

This painting was done by Henry Gonzales’s mother depicting his early work in the fields.

CalAgToday: Tell me about high school.

Gonzales: I felt very strongly about completing high school because I know my parents did not. But you may find it interesting that when I was working in the fields around Salinas, I was a card-carrying member of the United Farm Workers (UFW).

CalAgToday: So the UFW recruited you early, or were you a supporter?

Gonzales: Well, it was a closed-shop situation; if you worked in that company, you were a member. So I believe I am the only ag commissioner who was once a card-carrying member of the UFW.

CalAgToday: And why is that significant to you, Henry?

Gonzales: As you know, in agriculture, farmworkers are, almost literally, the backbone of the industry. They are the ones doing all the heavy lifting. So, having that background really provides me with a broader perspective because I can understand farming from the ground level up. Coupled with my Bachelor of Science degree in agricultural science, my field work experience has given me a well-rounded background for agriculture.

I started working for the Monterey County Ag Commissioner’s office over 30 years ago. All Ag Commissioners start at the bottom of the organization, so I began as an agricultural inspector-biologist and worked my way up to deputy, chief deputy, and then seven years ago, I became Ag Commissioner here in Ventura County.

CalAgToday: So suddenly a job became available in Ventura County?

Gonzales: That was kind of interesting. I was in Monterey County with a great job, a great boss, and I could do pretty much what I wanted. But I got a call from Ventura County inviting me to apply for their ag commissioner position. I checked with my wife, and she said ‘Sure, why not? Try it!’ I did, and as they say, the rest is history.

I applied and got the position. I was reappointed here three years ago, and I am hoping to do at least one more term after my current term is over. I think all my years working for the Monterey County Ag Commissioner’s office, my degree in Ag Science, and my master’s in public administration, coupled with my childhood years working in the field really gives me a broad background in agriculture, especially as it exists in Ventura County and in the state of California.

CalAgToday: How did you have time to get a masters degree in public administration?

Gonzales: Well, while I was working for Monterey County, I spent a lot of sleepless nights and weekends in order to earn that degree from Golden Gate University’s satellite office in Monterey.

CalAgToday: When you look back, you have come so far from your beginnings as a farmworker, and you have seen so much. How do you put all of that together?

Gonzales: My experience has provided me with the broadest perspective, so when I deal with a challenging issue, I can see it from all vantage points, and that is very helpful to me in doing my job.

California Ag Today2021-05-12T11:06:00-07:00December 30th, 2015|

ALRB on Entering Private Property

ALRB on Entering Private Property to Educate Workers: Is the ALRB going too far?

By Patrick Cavanaugh, Deputy Editor

The California Agricultural Labor Relations Board (ALRB) wants to enter private property farmland for the purpose of educating farmworkers on their rights as farm laborers in California. Of course, farmers want their workers to be happy and content with their work and that means knowing and understanding their rights as farmworkers.

“But the ALRB is going too far,” said attorney Ron Barsamian of Barsamian & Moody in Fresno, which represents many agricultural businesses throughout California in labor and employment law.

“I wanted to get into some pragmatic issues that I feel have not been considered. For instance, the lack of efficiency in trying to get access to all these different ranches is just not going to work,” said Barsamian. “You are going to have staff tied up forever. I don’t think they have taken into account the different geographical areas, the different ag sectors. For instance, are you going to spend as much time educating two or three people working at a dairy as you would a crew of 50-60 people?”

California Ag Today2016-05-31T19:27:06-07:00October 15th, 2015|

Exclusive Interview with ALRB Chairman Bill Gould

ALRB Chairman Bill Gould Defends ALRB’s Actions

By Patrick Cavanaugh, Deputy Editor

California Ag Today exclusively interviewed William B. Gould IV, member and chairman of the California Agricultural Labor Relations Board (ALRB), and previously chairman of the National Labor Relations Board. ALRB Chairman Bill Gould described his extensive experience in labor law, “I have been practicing in labor law both on the union and employer side. I’ve arbitrated labor disputes for 50 years as an impartial arbitrator, and I’ve been in academics, teaching law, and of course in government service as well.”

Chairman Gould defined the Board’s role, “The ALRB is a quasi-judicial neutral agency that was established to interpret and administer the Agricultural Labor Relations Act of 1975. It deals with the cases in front of it the best it can and tries to promote rulemaking to implement the objectives of the statute.

When pressed to address a widely held belief that the ALRB is biased in favor of the United Farm Workers (UFW), particularly against Gerawan Family Farms, a Fresno County tree fruit operation which for several years has witnessed a majority of its farmworkers attempt to fight mandatory-mediation-imposed UFW representation and fees, Chairman Gould replied, “The ALRB is a government agency that is concerned with enforcing and administering labor laws. I think when you get in the business of interpreting law and finding facts, sometimes people don’t always agree, and that has happened in a number of cases. A lot of people don’t understand that the statute is written fundamentally to protect the rights of workers to engage in freedom of association and in concert under conditions they consider unfair. The Act also protects employees from retaliation for these freedoms. We are an impartial agency that attempts to take into account the interests of all parties; but fundamentally, we have to find all the facts before us and make decisions and determinations.”

When asked if, in general, farmers were taking care of their workers, Gould answered, “I’m not in a position to say whether farmers are taking care of their farmworkers. That’s really a broader mission than the one that the legislation has given to us. We are concerned with whether, in particular cases, violations of the statute have occurred, and in remedying those violations.”

“And while farmers would agree that farmworkers should have the right to speak up when something is wrong without any retaliation,” Gould elaborated, “bosses are not forced to correct any wrong or to change things. And the boss is not obliged under our statute to do anything about wages, health or safety concerns. We are concerned with giving workers the ability to speak up and engage in concerted activity with protection against employer retaliation.”

On September 17, ALRB administrative judge Mark Soble ruled to prohibit Gerawan employees from learning the outcome of ballots cast in 2013 to decertify the UFW union, angering the agricultural industry and the Gerawan farmworkers, in particular. Gould said, “I can’t make any comments about that matter at all.”

Recently the ALRB hosted three hearings in the state to learn how to better educate farmworkers about their labor rights and to establish legal access to communicate directly with them during work hours at their work sites. Prompted to explain this ALRB request to access private farm property, during production hours, Gould replied, “The problem is the difficulty in reaching those with lack of legal status and who live in the shadow of the law and are afraid to protest. As the most recent witness testified, this population is sometimes cut off by language barriers and might not know the content of the law.”

“Putting aside language and documented status,” Gould continued, “many workers don’t know some very basic aspects of the National Labor Relations Act because of the inability of the Board under the Act to communicate with those workers. So what we are looking at is our ability to communicate the content of the law and the procedures we employ more effectively than in the past.”

When asked about other forms of outreach, such as hanging educational posters in different languages that workers understand, Gould said, “These indigenous languages are something that only academics read. I don’t think that many of the farmers are academics.”

Chairman Gould explained the ALRB could reach workers who speak these ancient languages by “having lawyers on private property describe the content of our statutes and our procedures and perhaps show videos that would explain the rules in their own language.”

ALRB Bio

Appointed in March 2014 as a member and chairman of the Agricultural Labor Relations Board, William B. Gould IV has been Charles A. Beardsley professor of law, emeritus at Stanford Law School since 2002, where he has held multiple positions since 1972, including professor of law. He was chairman of the National Labor Relations Board from 1994 to 1998. Mr. Gould was a visiting professor of law at Harvard Law School from 1971 to 1972, professor of law at Wayne State University Law School from 1968 to 1972, and a lawyer at Battle Fowler Stokes and Kheel from 1965 to 1968. He was an attorney-advisor for the National Labor Relations Board from 1963 to 1965 and assistant general counsel for the United Automobile Workers from 1961 to 1962. Mr. Gould is a member of the National Academy of Arbitrators. He earned a Bachelor of Laws degree from Cornell Law School.

Mr. Gould’s term expires January 1, 2017 (Pursuant to Labor Code § 1141(b).)

California Ag Today2016-05-31T19:27:10-07:00September 21st, 2015|

ALRB Education Does Not Require Worksite Access

Barry Bedwell Says ALRB Education for Farmworkers is Okay, But Not Worksite Access

By Patrick Cavanaugh, Deputy Editor

Officials from the California Agricultural Relations Labor Board (ALRB) held a public hearing in Fresno TODAY to talk about their proposal for worksite access– private operating farms–to educate farmworkers about the ALRB, and that did not sit well with ag leaders. Barry Bedwell, president of the California Fresh Fruit Association based in Fresno and other ag leaders questioned the ALRB’s motives.

“The real proposal has to do with granting legal access to ALRB agents to agricultural worksites for the purpose of educating workers about the Agricultural Labor Relations Act,” Bedwell said. “Education alone is something that no one I’ve talked to is against, clearly. We want people to understand their rights under the law.”

The Act provides, encourages and protects collective-bargaining rights for agricultural employees, but as Bedwell explained, access to a private worksite is a totally separate legal issue.

“It’s really complicated, unfortunately, because ALRB’s staff has shown to a great degree over the recent couple of years, a distinct bias towards organized labor,” Bedwell said. “The Act is all about a worker’s right to get one or more people together to complain about work conditions and to ask for certain things. It doesn’t mean the employer has to grant them; it’s really about worker’s rights.”

Bedwell said the request from the ALRB is distinctly not about a union’s rights, and “it’s never been about the employer’s rights,” Bedwell said. “We know that. But in this case, we think it’s at best premature to talk about workplace access without first understanding the issue of knowledge [or the lack thereof] out there currently and the best ways to conduct that education.”

Pointing to heat illness prevention and Cal/OSHA as a great example, Bedwell said, “Cal/OSHA did not ask for access to go onto someone’s private property. Instead, they said, ‘We will create the information systems through various media and through seminars which agriculture helped to organize and fund.’ We think that’s a great model for educational services, and we could help.”

California Ag Today2016-05-31T19:28:05-07:00September 10th, 2015|

Court Awards Right to Choose to Gerawan Farming and its Farmworkers

By Laurie Greene, Editor, and Patrick Cavanaugh, News Director

Gerawan Farming, a major family-owned and operated tree fruit and grape operation in Fresno and Madera Counties, established in 1938, and its farmworkers were victorious yesterday when a panel of 5th District California Court of Appeal judges in Fresno ruled the California Agricultural Labor Relations Board (ALRB) violated the law when it forced Gerawan into a statutory Mandatory Mediation and Conciliation (MMC) process with the United Farm Workers of America (UFW) to reach terms in a collective bargaining agreement.

The Court’s decision, filed May 14, 2015, states:

UFW was certified as the employees’ bargaining representative in 1992, but after engaging in initial discussions with Gerawan, disappeared from the scene for nearly two decades. In late 2012, UFW returned and both parties renewed negotiations. A few months later, at UFW’s request, the ALRB (the Board) ordered the parties to a statutory MMC process pursuant to Labor Code section 1164 et seq.1.

Under the MMC process, if a 30-day mediation period does not succeed in producing a collective bargaining agreement (CBA) by voluntary agreement, the mediator decides what the terms of the CBA should be and reports that determination to the Board. Once the mediator’s report becomes the final order of the Board, the report establishes the terms of an imposed CBA to which the parties are bound.

Following the ALRB’s final order adopting the mediator’s report, Gerawan Farming challenged the validity of the order and the MMC process on both statutory and constitutional grounds.

Over the last two years since, the UFW and Gerawan have been mired in a legal battle over who has the authority to represent the nearly 3,000 Gerawan fieldworkers in contract negotiations with Gerawan Farms, the union or the fieldworkers themselves.

A union contract was never implemented by Gerawan employees in the 1990’s, nor did the UFW collect dues and represent the employees in negotiations. Gerawan employees worked hard to advocate and petition (twice) to hold an ALRB-sanctioned election to decertify the union. The decertification election was held in November 2013; however, the ALRB impounded the ballots, and has not counted the votes to date.

Paul Bower, an attorney representing Sylvia Lopez, a Gerawan employee who helped lead the anti-union drive, said, “Gerawan workers are joyful over the decision.”

Here are excepts from the Court Decision:

Among Gerawan’s claims is the contention that UFW’s lengthy absence resulted in an abandonment of its status as the employee’s bargaining representative. We agree with Gerawan’s statutory argument that it should have been given an opportunity to prove abandonment to the Board once UFW requested the MMC process.

More fundamentally, we agree with Gerawan’s constitutional arguments that the MMC statute violates equal protection principles and constitutes an improper delegation of legislative authority.

Where a union has arguably abandoned the employees but later returns to invoke the MMC process, that situation may create a crisis of representation. It is clear that the employees’ right to a representative of their own choosing would be seriously jeopardized in the situation of abandonment by a union where, as here, the absentee union suddenly reappeared on the scene to demand the MMC process.

A union that has had little or no contact with the employees or the employer over many years (here, decades) would be unlikely to have an adequate working knowledge of the employees’ situation or their wishes. From the employees’ standpoint, that union would be reappearing on the scene as something of a stranger.

Most importantly, during the union’s long absence, the employees’ working conditions, wages and attitude toward the union (if they even knew they had a union) may have significantly changed over the years. Indeed, it may be the case that the employees do not want to be represented by that union or any other union, which Gerawan asserts was the situation here.

[Under the MMC process,] “a collective bargaining agreement will be imposed whether the employees want it or not; and it will be imposed with the formerly absent union, whether the employees want its representation or not.” Accordingly, it is appropriate to allow the employer to raise the abandonment issue at that stage, because only that result will preserve the ALRA’s purpose of protecting the employees’ right to choose.

UFW officials said they would appeal the Court’s decision.

California Ag Today2016-05-31T19:30:24-07:00May 16th, 2015|

Top Ten Issues Facing Ag

The Top Ten Issues Facing Agriculture:

California Fresh Fruit Association’s Bedwell Lays Them Out

By Patrick Cavanaugh, California Ag Today

For the first time in nearly eight decades, the California Fresh Fruit Association met in San Diego to carry on all the traditions established over the previous 79 years by the organization originally known as the California Grape & Tree Fruit League.

“How does that feel?” said President Barry Bedwell as he addressed a big part of his membership. “For the most part, I think the feedback has been more than positive. As we explain the rationale behind the name change and why we have moved from a very dear moniker, if you will, for an association that has such a great history, I think it is altogether fitting and proper to recognize our position in the state of California,” said Bedwell.

The Association covers the state from Lake County in the North to the Coachella Valley in the South, and represents 13 commodities with a combined value of $2.5 billion.

“The new name transition has gone very well,” noted Bedwell. “And as we look at 2015, I think it is a ‘schizophrenic’ time for agriculture. On the one hand, as our chairman, David Jackson, pointed out, economically, things look very strong for most commodities.”

“However, here we are in a situation of increasing anxiety. If you look at the feedback every year on our top ten issues, you can see the concentration of issues that are not simply operational in scope. They may be historic in impact when talking about water availability and groundwater management, as we move forward,” said Bedwell. “The availability of water, along with the availability of labor, are simply game changers. They can change things overnight. And I think, inherently, farmers understand that and all of you in this room working together as a supply chain understand that.”

Bedwell then announced his traditional Top Ten Issues Affecting Ag and the association and discussed how they changed from the prior year:

#10 Workers’ Compensation costs. We bought up our partnership with Zenith Insurance. It’s about how to run programs more efficiently to save you money, but we understand that when it comes to the issue of worker’s comp, it is the issue of the legislature changing the laws to benefit certain classes of participants that leads to higher costs that render our competitiveness more difficult.

#9 Invasive Pest Issues. Look no further than what’s happening with the citrus industry and their struggle agains HLB and the idea of the Citrus psyllid continually being found in new counties throughout the state. Pests for us on one hand are more associated with things like the European Grapevine Moth, where we have done a good job, made progress, and have a chance at eradication, but pests are always on our minds because we are only one quarantine away from not being able to ship our fruit, and we understand that.

#8 Water Quality. We hear so much about water availability, but creeping up into our mindset as well, is water quality because we know we have issues with salts and nitrates in the Valley. How does agriculture get involved with this? It continues to be an issue.

#7 Groundwater Management Legislation. We saw on our list—for the first—groundwater management legislation. This is potentially a game changer. We just had a meeting with some of you in Visalia with the California Water Foundation. They are trying to explain the timeframe for this new law, and quite frankly, the more you learn about it, the more you have to be concerned about any potential outcome other than the scope of agriculture in the state of California.

Because what they are saying in an almost commonsense contradiction is that this has nothing to do with your water rights. Those don’t change, but we may limit the amount of water you can use. That is a tough one to figure out at times, but that is potentially where we are headed in the fourth year of the drought. As you hear the vernacular in Sacramento, the mindset begins to change from one of, ‘Maybe we’ll get rain this year,’ to ‘Maybe we are in the fourth year of a ten-year drought.’ So all of the sudden, the mindset begins to change to more management of water. This is a major concern.

#6 Labor Costs. Knowing and trying to educate legislators about the fact that seventy to perhaps eighty percent of our variable costs as farmers is tied up with labor because we deal with the most labor-intense costs possible with our 13 commodities. I don’t look at any as being machine harvested or machine pruned. So, every time there’s a good-will gesture of, ‘Boy, we should move that minimum wage up,’ we try to explain to people we don’t pay minimum wage. Wages are higher; but incrementally, all of our sectors move up, whether you are a tractor driver or an irrigator, and that has a major impact on our ability to compete on a world-wide basis. And you start to see the labor influence spilling into Baja, California.

As you read recently, workers there are demonstrating because they are making about $8/day, and we are probably more about $12/hour for seasonal labor. But we still have to compete with those instances, so labor is always going to be a concern. We always talk about labor laws and regulations.

#5 Agriculture Labor Relations Act. A year ago at this time, we talked about a case involving one of our members, Gerawan, and the United Farm Workers (UFW), who won an election back in 1990, disappeared for 22 years, then showed up again last summer. The UFW said, “We are the certified representatives for the employees, we’re now here, we want our contract.” The catch was that the employees said: “We don’t know anything about you; we don’t know why we should pay you three percent of our wages for dues.”

That situation resulted in a hearing beginning on September 29th. At that time, the hearing was in front of an administrative law judge in Fresno, and was scheduled to go for ten weeks. Those ten weeks finished up about two weeks ago—after 23 weeks had past. That’s incredible, to think, we have heard it cost as high as 7 million dollars to have that administrative hearing, all paid by California taxpayers.

This is not really how the law was intended to benefit the workers. So, as we move forward, we are always going to see efforts by organized labor to change the law to change the scale for their benefit. We saw it last year with SB 25, which really tried to create a perpetual mandatory mediation situation.

We have to continually push back on these bills. The most effective way to do that is to communicate the voices of those impacted, and in this case it is the employees. And so we have tried very hard to create a relationship with the members on the Agricultural Labor Relations Board, and a couple of weeks ago when we were in Sacramento, we had dinner with two of the three board members. And I know the chairman spent most of the time speaking with Harold McClarty, president of HMC Farms, so I know we are in good shape. It is really about relationships and that is what we continue to work on.

#4 Healthcare Mandates. What is happening with the Affordable Care Act, and how is impacting you?

We saw some very practical instances last year where many of our members who use farm-labor contractors were approached. And the labor contractors said, “Well, because of the Affordable Care Act, I’m going to have to raise my rates from $0.70 to $1.10/hour. But under closer examination, we said: “Well—hold it. What percent of your workforce really has to be covered under the Act?” In many cases we found that it certainly wasn’t 100 percent; it was sometimes closer to 10 percent. So we are trying to help administer the understanding of that Act for the best benefit of our members.

#3 The Continuing Need for Immigration Reform. It hasn’t gone away. I am so pleased to have Tom Stenzel, president of the United Fresh Produce Association, here with us today, along with his Board chairman Ron Carkoski, because we work very closely on these national issues with Tom and Ron. And our voice is still there. Our level of frustration has grown because as we entered this legislative session in Congress, guess what? What did we hear most about? E-Verify; the Legal Workforce Act; and the concern that we have documented workers. We don’t disagree with that. We think that’s a great idea, but you don’t put the cart in front of the horse; you don’t do E-Verify before you create a system for a legal workforce. That’s a very simple message we are trying to get to the leaders in Congress, and Tom and Ron do an absolutely fantastic job in helping to get that message across.

#2 Food Safety. Last July, I received a phone call from one of our members on a Saturday. It was hard to gauge the impact at the time, because that member said, “I want to let you know that we had four peaches show up in Australia, and there was an indication of Listeria.” Now in Australia, there is technically a tolerance for Listeria, and these were such low levels of Listeria, that that shipment was released.

It went on its way with no issues. But under further examination, Listeria was discovered in the plant. As the U.S. and FDA have no tolerance for Listeria and as U.S. law requires, there was a recall. This was not a small recall. It was a period from June 1st to, I think, July 17th. That is a huge amount of product.

During that time, there were no confirmed illnesses. That doesn’t mean there weren’t claims, because once you start a recall and information goes out to the public, there will be plenty of claims. But from an association point-of-view, how do we react and plan for the future with regard to food safety? Because all of the sudden, the perception of tree fruit in this instance, and peaches and nectarines, in particular, being a low-risk commodity, has changed.

Is it really a low-risk commodity? Absolutely, it is a low-risk commodity. But are we immune? Absolutely not. We found out that we have food safety issues, like so many other fresh produce commodities. We had to communicate the right way not only to the segment of our members who were involved. Many of them were, quite frankly, in a state of denial, saying, “This shouldn’t be happening.” Well it happened.

But I want to applaud the industry, and especially our leadership Association, who said, “We have to do the right thing. We have to communicate our concern. We have to be positive about this.” They not only moved forward with our membership aspect, but they also created the partnership with the Center for Produce Safety in Davis to develop the best possible practices as we move ahead.

Food safety was further complicated late in the year because of the apple recall. Now those were candied apples, they had caramel on them. But as you can see, the fact is the Listeria found was attributable to the apples, not the coating. Again, we had an industry that thought, quite rightfully, they were low-risk. And once again, we are learning we are not immune. As we move ahead, food safety is going to be a very important component of our work as an Association.

We have created a food safety sub-committee, chaired by George Nicolate.

#1 Can anybody guess? Water. From our perspective, there are three general areas of water we have to focus on. Number one, the Water Bond, and what happened last summer. It is a very good success story, in that we were able, with the help of individuals in the legislature, to maximize the amount of dollars in that bond for above-ground storage. But in Sacramento today, there are challenges and perceptions regarding dams. People have mindsets that unfortunately go to the extreme and in many case, dams is one of those.

I can guarantee that through the efforts of people who were involved in our Association and through the Agricultural President’s Council, we were able to move up what was first a $2 billion proposal, then $2.5, then $2.7, with a commitment for a subsequent legislation on Cross-Valley conveyance in Kern County.

This was a major accomplishment, but as accomplishments go, unless you follow-through, you’re never going to realize the results. And I think George Soares, attorney with Kahn, Soares, and Conway in Sacramento, said it best when he said, “As these things happen, amnesia sets in with people very quickly. And all the sudden the people with whom you were discussing above-ground storage with will start to say, ‘Well, you know the bond says it doesn’t have to be above-ground storage; maybe we could do local projects, regional projects, or maybe we can do underground banking.’”

Our message has been very clear, “No, the deal that was made was on two above-ground storage units, and the fact is that these will be decided by water commissioners. There are public benefit formulas, and those projects should be at the top. And until they are disqualified, they should be the first two that are qualified.”

As we were up in Sacramento a couple weeks ago, I think there was frustration among our participants as we heard the governor’s point person on water start to demonstrate that amnesia right in front of us. And that was a concern.

Number one, we have to push the true intent of the water bond to the finish line.

Number two, we have to have input into the groundwater management regulations a process that will require regulations sustainable management agencies for local water agencies. This is a very complicated issue. It’s very difficult to talk about what sustainability is. When they set baselines to talk about the ability to use groundwater, it is vital that we have the opportunity to give our input to stress the importance of sustainability and to emphasize that human health also involves vibrant farms and the employment of individuals. We have to have those concepts melded together.

Lastly we have the long-term issues of water conveyance in the state. If we are going to remain the agricultural giant that we are with the, I believe, all time record in 2014, we are going to have to find a more efficient way to move water, whether is that is the governor’s BDC plan, which doesn’t appear to be gaining traction, or not. But longer-term, members have said, “We are not against moving excess water South. We have to make sure the health of the Delta is maintained. We have to respect environmental laws, but we have to respect the impact of agriculture on our quality of life. So, water is at the forefront.

So, how’s the association doing? Very well. Financially we are on strong terms, I feel very good about our name change and our voluntary leadership moving ahead. I think we can take confidence in looking ahead at the future for this Association.

In summary, I just want to reiterate my thanks for being able to work for production agriculture. It is frustrating at times. It’s always difficult. Working with people who sometimes don’t understand, … it reminds me of the saying that I read in the paper yesterday and need to share with you. It is by Mark Twain, who said, “You never want to get into an argument with a stupid person, they will simply drag you down to their level, and then beat you with experience.”

Many times, in the world of public policy, that’s what we’re are dealing with at times. But we tend to look at it as an opportunity to educate as well as advocate. Those are two separate things, you have to be good at both of them, and I think our leadership does a very good job with them.

Bedwell gave special thanks to this year’s Chairman David Jackson and his wife Gale. He also reached out to thank his staff for the great job they are doing back at the office and in the field.

For more information, go to: California Fresh Fruit Association.

Patrick Cavanaugh2016-05-31T19:30:24-07:00May 14th, 2015|

JUDGE ISSUES DECISION IN TRI-FANUCCHI FARMS, INC.

Tri-Fanucchi Farms to Accommodate UFW Requests

Administrative Law Judge (ALJ) Thomas Sobel, issued his 23-page decision TODAY in the Tri-Fanucchi Farms, Inc., Case heard in Visalia on October 21, 2013.

After a long hiatus in bargaining, the United Farm Workers of America, AFL-CIO requested information from and a meeting with Tri-Fanucchi, a farm near Bakersfield.

Tri-Fanucchi refused to provide information to the Union, to recognize the Union as the collective bargaining representative of its employees, and to bargain with the Union on the grounds that UFW had abandoned the farmworkers for 24 years.

ALJ Sobel ruled that the Tri-Fanucchi’s claim of Union abandonment is not available under the Agricultural Labor Relations Act (ALRA) and that, in view of the company’s admissions, the allegations in the Union’s Complaint must be taken as true.

Tri-Fanucchi was ordered, among other things, to provide information to, and to recognize and meet and bargain with the Union as the collective bargaining representative of its employees.

Tri-Fanucchi was also mandated to post the following:

NOTICE TO AGRICULTURAL EMPLOYEES

After investigating charges that were filed by the United Farm Workers of America, in the Visalia Office of the Agricultural Labor Relations Board (ALRB), the General Counsel of the ALRB issued a complaint that we had violated the law. After a hearing at which all parties had an opportunity to present evidence, the ALRB found that we had violated the Agricultural Labor Relations Act (Act) by failing to supply the Union with information to which it was entitled under the Act.

The ALRB has told us to post and publish this Notice.

The Agricultural Labor Relations Act is a law that gives you and all other farm workers in California these rights:

1. To organize yourselves;

2. To form, join or help a labor organization or bargaining representative;

3. To vote in a secret ballot election to decide whether you want a union to represent you;

4. To bargain with your employer about your wages and working conditions through a union chosen by a majority of the employees and certified by the Board;

5. To act together with other workers to help and protect one another; and

6. To decide not to do any of these things.

Because you have these rights, we promise that:

WE WILL NOT refuse to provide the Union with information necessary to foster informed collective bargaining.

WE WILL NOT refuse to meet and to bargain collectively and in good faith with the Union as the representative of our employees for the purpose of collective bargaining.

WE WILL NOT in any like or related manner, refuse to bargain with the Union over wages, hours or conditions of employment, or interfere with, restrain or coerce employees from exercising their right under the Act

DATED:

If you have any questions about your rights as farm workers or about this Notice, you may contact any office of the Agricultural Labor Relations Board.

See Tri-Fanucchi Farms, Inc., Case No. 2013-CE-008-VIS, et al..

Patrick Cavanaugh2016-05-31T19:43:11-07:00November 6th, 2013|

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