What Does “Bad Faith” Mean?
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