Major Farm Operations With UFW Contracts Have Shut Down
By Patrick Cavanaugh, Editor
Farms operations shutting down due to labor unions and UFW contracts is something that is suspected, but businesses do not outright admit it, said Robert Roy, President/General Counsel at the Ventura County Agricultural Association based out of Camarillo.
“Last year, you had the closure of all of the strawberry operations for Dole,” Roy said. “They shut down all of the strawberry operations in Ventura and Santa Maria and Watsonville, so that was at one time very large UFW-contracted operations. They had over 1,500 workers since the mid-1990s.”
Roy explained that workers see no reason to pay three percent of their wages for many of the things that farmers are now providing that maybe they didn’t previously when UFW was around.
“Farmers have basically caught up with many of these UFW contracts, and selling the union to the workers is a much more difficult proposition, especially when they have to pay three percent of their wages,” he said.
Roy says that most Supreme Court decisions have been pro-worker as of recently, including a recent case involving a Starbucks employee.
“We have been watching some of their decisions over the last 12 months, and they’re very nuanced decisions dealing with wage and hour issues and rounding practices,” Roy said. “They recently issued a decision on a class action case where a Starbucks employee was owed $112 because after he clocked out, he would lock the door, and do other tasks. The California Supreme Court came back and said, ‘well, you know, $112 to some people is a week of groceries. He’s owed it.’ So the California Supreme Court is very pro-worker.”
Historic Day Following Five Years of Vote Count Suppression
News Release Edited By Patrick Cavanaugh
Today, the Agricultural Labor Relations Board announced that it will count the votes of Gerawan Farms workers after five years of illegally refusing to tally the ballots.
Determined to avoid having union dues taken from their wages by a union that had abandoned the workers for almost two decades, Silvia Lopez and the Gerawan Farms employees courageously organized themselves in opposition to forced union membership. In November of 2013, thousands of Gerawan Farms employees voted on whether or not they would be represented by the United Farm Workers (UFW) in the largest worker election in ALRB history.
For five long years, the ALRB has suppressed the vote by refusing to count the ballots while the workers fought to vindicate their civil rights. The Fifth District Court of Appeal in Fresno ruled in May that the suppression of the vote violated the workers’ statutory and Constitutional rights, and ordered the votes counted. Only after a dismissal of all appeals by the California Supreme Court did the government finally agree to count the ballots.
At 8:30 am on September 18, 2018, the ballots will be removed from the ALRB safe for inspection by the parties, and transportation to Fresno.
The ballots will be counted at 2550 Mariposa Mall, Room 1036 in Fresno at approximately 10:00 am. This tally represents a victory for farmworker rights over a union and a government agency that has tried to silence them.
Pick Justice’s Jesse Rojas and Gerawan Employees Will Never Give Up
By Laurie Greene, Founding Editor
For nearly five full years, Gerawan Farming Inc. employees have fought a legal battle for the State of California to count their votes cast in the November 2013 election to decertify the United Farm Workers (UFW) as their bargaining representative. According to Jesse Rojas, a farm worker rights activist and spokesperson for Pick Justice, “Anything the UFW does, the California Agricultural Labor Relations Board (ALRB) is right next to them; and anything the ALRB does, the UFW is right next to them. They are one single entity for the most part; they are a partnership.”
Rojas said the ALRB and UFW filed an appeal to the state Supreme Court this week of the Fifth District Court of Appeal decision to count the votes. “We would not be surprised if the state Supreme Court accepts the appeal because Governor Brown appointees and friendly judges would always be likely to take the case,” said Rojas.
“This is where the UFW and the ALRB have failed to mention to the public the fact that we are just asking for the votes to be counted,” Rojas explained. “We are not saying, ‘Certify the results.’ We are not saying, ‘Once you open them and count them, let that be the final choice.’”
“We are saying, ‘You can still litigate it,’” Rojas continued. “‘You can still appeal it. You can still destroy [the ballots] if you want but count them. So why are you so afraid to simply count them?’”
‘This is the perfect question for the UFW, the ALRB, and our California legislators: Why are you so afraid? Employees deserve to know what the choice was, even if you choose to destroy [the ballots] afterward,” Rojas said.
Rojas explained how Governor Brown appointed people to the ALRB who are UFW sympathizers or people who have worked for the UFW.
“It is not only corrupt, it is also very sad and unfair to see over the last years how many companies and jobs have been lost. How many employees and families have been affected? I am not talking just about Gerawan Farming Inc. workers. We can go on and on in McFarland, Delano, Bakersfield, Salinas and Santa Maria for similar examples of how the ALRB has failed to protect farm workers.”
“Launching Pick Justice was great because it started with thousands of Gerawan farm employees who have been very courageous and have not given up,” Rojas explained. “Pick Justice expanded when other workers started reaching out to us from different companies, perhaps dealing with different issues. For example, we have a lot of workers from the Monterey and Salinas area that have been under a UFW contract for decades, but the UFW fails to protect them.”
“The UFW neglects its members by not reporting certain things to them, by segregating those employees who are unhappy with [the UFW] as well as keeping them away from information or meetings,” Rojas said. “Also, by being on the side of the employer—whatever the employer wants to force upon the workers, even if it’s not in their best interests—and forcing it down their throats.”
“After I reached out to Silvia Lopez, we started to meet over the following months. Many of the workers reached out to me. I have spoken to them on my phone. I’ve gone to their houses. I know their spouses. I know their children. I’ve eaten with them, and that’s where I became even more passionate. I said, ‘Look, you guys are the face of this. Your courage is what makes this effort great over so many years; you just don’t give up. You know what you want, and you know what is right.’ ”
“All I have to do,” Rojas continued, “is help you with communication media using techniques that I know, which is so simple. Social media, digital marketing, things that I grew up with and that I’m very good at. Pick Justice is not about me; it’s about them. If they weren’t still fighting, if they weren’t as strong and courageous as they are, we would not have Pick Justice today.”
“In this fight, we’ve gone up against almost all odds. We are going against the state government. We are going against a three- to four-decade-old system, with views, opinions, and decades-long teachings of the UFW and its leaders—its idols, per se—who have parks, schools, and streets named after them.”
“We’ve been attacked, and we continue to be attacked. But we know what we’re doing is right, and we have the numbers. If I didn’t have thousands of workers standing behind me, I wouldn’t be able to do this.”
Rojas said the Gerawan farm workers absolutely knew if they kept fighting, they would be vindicated.
“They did not give up; they are so motivated. And now, we’re in a waiting game for the most of accounting, but the stakes are high.”
“Think about Silvia Lopez,” he said. “You don’t think she’s going to be attacked by the UFW after attending Ivanka Trump’s recent Central Valley event? You don’t think I’m going to be attacked? I’ll give you an example. When Silvia met Tim Donnelly, a 2014 gubernatorial candidate who cared about her story, the UFW circulated a flyer of that picture and called her a racist towards all employees. Why? Because she’s searching for help for farm workers.”
“The UFW is weak; they represent less than one percent of the farm workers. California has an estimated average of 800,000 farm workers in the state—could be more, could be less,” Rojas said. “Current UFW membership fluctuates around 5,000 active members—less than one percent of farm workers. So for them to continue to be quoted as ‘the champions for farm workers and for Latino workers’ is absolutely wrong.”
“Specifically, their words and their actions do not go with one another,” he continued, “including their stance on immigration. If people simply looked up some of the legislation opposed by the UFW, they would see that the UFW is actually not for immigration. It is ironic and hypocritical to keep quoting and portraying the current UFW leadership as pro-employee and pro-Latino.”
“I know I will never give up and I know that thousands of workers behind me will never give up.”
Court Allows UFW to Force Representation and Dues on Gerawan Employees
By Laurie Greene, Founding Editor
The California Supreme Court announced their decision on Nov. 27, 2017 in favor of forced UFW representation on Gerawan employees, thus mandating these workers pay three percent of their wages to the UFW or lose their jobs.
As background, the UFW was elected to represent Gerawan employees in 1990, but never successfully represented them in contract negotiations. Subsequently, the UFW disappeared from this farm operation for nearly two decades, so 99% of current Gerawan employees never voted for union representation; many were born after 1990. In addition, Gerawan employees have reportedly been paid the highest wages in the industry.
Below is the transcript (in English) of the message, which was recorded in Spanish, that all Gerawan employees heard when they called in on Nov. 27, 2017 to hear their work schedules.
Hi, this is Dan Gerawan.
Unfortunately, the California Supreme Court today decided to overturn the lower court that had said you should have the right to choose whether a contract is forced on you. Instead, the California Supreme Court agreed with UFW and ALRB that you should not have the right to choose, even though you have to pay UFW.
Fortunately, today’s decision does not strip your right to decide whether the UFW can represent you. The majority of you asked for the right to make that decision, and the ALRB held a decertification election over four years ago.
Nothing in today’s court decision prevents your ballots from being counted. As you may know, the California Fifth District Court of Appeal is still going to decide whether your votes from the November 2013 election will be counted.
You are entitled to the same dignity and respect that all other workers in our state and country have, which is the right to choose who represents you.
As for today’s decision, we intend to ask the United States Supreme Court to review it.
Thank you for listening.
According to the November 27, 2017 press release posted by David A. Schwarz, legal counsel for Gerawan Farming, “We believe that coerced contracts are constitutionally at odds with free choice. The employees are entitled to the dignity and respect that they earned by giving them what is their right. A secret ballot election allows them to decide for themselves who will speak for them at the bargaining table.”
CA Supreme Court Hears Case of Gerawan Farming, Inc. vs. UFW/ ALRB
By Laurie Greene, Founding Editor
A significant labor hearing occurred at the California Supreme Court (Court) in San Francisco yesterday, the day after Labor Day, between the team of the United Farm Workers (UFW) and the California Agricultural Labor Relations Board (ALRB or Board) versus Fresno County-based Gerawan Farming, Inc. over self-determination. At stake is the right of farm workers to determine if they want to be represented by the union or not. Under scrutiny is the Mandatory Mediation and Conciliation (MMC) provision of the Agricultural Labor Relations Act that paves the road for the UFW to force unionization on all farm workers.
“Although Gerawan farm workers attempted to participate in this hearing, as well as other hearings, they were denied legal participation in the trial by the state of California and by the UFW,” according to Anthony Raimondo, of Fresno-based Raimondo & Associates and lawyer for Gerawan farm worker spokesperson, Silvia Lopez. Nevertheless, hundreds of Gerawan employees in blue t-shirts attended the proceedings and protested outside the courthouse, lending their voices, exercising their free speech and showing their legitimate Gerawan company ID cards and payroll stubs.
Dan Gerawan, who co-owns Gerawan Farming, Inc., with his brother Mike and father Ray, commented on the court hearing just after it ended. “It is frightening to see the deference that the Court gives to the ALRB. Everyone in our industry and all farm workers should be scared by the deference this Court gives to a Board that is clearly not interested in the employees’ best interests.” Describing his perceptions in the courtroom, Gerawan said, “It was Orwellian to hear the government attorneys argue that they are defending self-determination, when in fact, what they are doing is the exact opposite.”
“That said,” he continued, “I am encouraged by the questions I heard from the Court. They obviously are taking this very seriously, and I’m hopeful that they will side with our employees and us.”
Members of the UFW were also present at the Court in red t-shirts, though only one person claimed to be a Gerawan employee. Marc Grossman, spokesperson for the United Farm Workers of America and communications director of the Cesar Chavez Foundation, said that the Gerawan operation should be unionized because the UFW was elected in 1990 by Gerawan farm workers and certified in 1992 by the ALRB.
However, the UFW did not successfully reach a contract for the Gerawan farm workers, and therefore did not collect dues. Furthermore, the UFW abandoned the Gerawan farm workers for nearly 20 years.
Grossman said the Court discussed today the long-standing principle that a union is certified until it is decertified. Workers have a right to decertify the union but it has to be the workers—not the company. It is patently illegal for an employer to have anything to do with determining union representation by his or her employees.
When asked to account for UFW abandonment of Gerawan farm workers, Grossman said, “Bogus issue! The UFW never abandoned the workers at Gerawan. It repeatedly attempted to negotiate with Gerawan. At every step, it was met with virulent resistance by the company. It became apparent that only a law that would allow neutral state mediators to be brought in to hammer out a union agreement when the grower refused to do so would be the only course, and we followed it.”
Grossman asked us to read the September 5 ‘News from UFW’ press release he provided, entitled, “Giant grower challenging law giving farm workers the union contracts they voted for already owes its workers $10 million under a state-imposed union contract.” Here are excerpts:
What about Gerawan’s claim the union “abandoned” the workers for 20 years?
Even before the Mandatory Mediation statute was adopted in 2002, the ALRB and the courts consistently rejected employer claims that unions should not be deemed workers’ bargaining representatives if they allegedly “abandoned” them. It is long-established law that a union remains certified as bargaining representative until workers—and only workers—vote to decertify it. At the time of the law’s passage in 2002, Gerawan was one of the 243 companies where farm workers voted for the UFW but the companies never agreed to contracts. (See UFW-Gerawan chronology)
1995-2002: Gerawan workers and the UFW continued working to improve conditions while the ALRB stopped enforcing the farm labor law under Republican political appointees.
2002: The Mandatory Media law was enacted. The agricultural industry mounted a major constitutional challenge.
2006: The Third District Court of Appeals in Sacramento upheld the Mandatory Mediation law. The industry appealed to the state Supreme Court, which refused to take the case. The industry declined an appeal to the U.S. Supreme Court—and the law’s constitutionality was settled.
2012: The UFW sent a new negotiations request to Gerawan. At least 10 bargaining sessions failed to produce a union contract.
March 2013: The UFW requested mandatory mediation at Gerawan with the ALRB.
The above chronology vaguely refers to UFW involvement between 1995 and 2002 that remains unsubstantiated. UFW contact with Gerawan farm workers appears to have been reestablished in 2012.
The ALRB did supervise a sanctioned election for Gerawan farm workers to decertify the UFW on November 5, 2013; however, the ballots were collected, sealed and never counted.
When told that UFW representative Grossman said they never walked away, Gerawan asked, “If they didn’t abandon, then where were they for almost two decades? They did not phone us or send us a fax. They did not show up on our property. They did not inquire on behalf any of our employees. They did not file an unfair labor practice. They did nothing during that time. They abandoned our employees.”
One of Gerawan’s attorneys, Ron Barsamian, managing shareholder of Fresno-based Barsamian & Moody, stated, “I’m very encouraged. I think the Justices’ questions indicated that they understood the issue we were raising. I think they certainly read the briefs. I think they understand the difficulty in how locked-in workers, such as the [Gerawan] ones behind us, can be under the way this law works: if you have an MMC contract, [the workers] never have an opportunity to decertify the union. Even the questions asked by the justices that we expected to be against us were great, and I certainly loved the answers that Mr. Schwartz gave.”
Barsamian was referring to another Gerawan attorney, David Schwarz, from the law firm, Irell & Manella, who addressed the central issues of the case: “I think it was a full and fair hearing. I think the Court—all members—are deeply concerned about the unaccounted for two-decade [UFW] absence, an unaccountable power given to a mediator [ALRB], and uncheckable power given to the union [UFW] to compel one grower and one group of employees into this process. Ultimately, I think the justices were very much focused on and troubled by the inability of the [ALRB] agency to step in in a situation of gross abandonment where a contract is being imposed by that agency.”
The California Supreme Court typically releases it decisions and commentaries after 90 days.
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) decisionto “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?
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.