Gerawan Workers Have Been Vindicated

Gerawan Workers Will See Vote Counted After 4.5 Years of Seeking Justice

By Laurie Greene, Founding Editor

Following the Nov. 5, 2013 Gerawan Farming, Inc. employees’ legally unresolved election to decertify the United Farm Workers (UFW) as their collective bargaining representative, the employees’ message has been simple: Count the votes!

Silvia Lopez, Gerawan Employee

Yesterday, California’s 5th District Court of Appeals—in a 3-0 decision—ordered the California Agriculture Labor Relations Board (ALRB) to unseal the ballots, count them and issue an official tally.

Dan Gerawan, who co-owns Gerawan Farming, Inc. with his brother Mike and father Ray, said “This is a victory for our employees who never gave up the struggle to achieve the same rights that all other workers have. And we never wavered from our support of their right to choose.”

Dan Gerawan, co-owner Gerawan Farming, Inc.
Dan Gerawan, co-owner Gerawan Farming, Inc.

“I have no clue when the votes are to be counted,” Gerawan explained. “The ARLB and UFW are going to appeal this decision to the California Supreme Court. I do not know if the California Supreme Court will take it.

“But I’m certain that ARLB and UFW are going to try to get the California Supreme Court to take it because the last thing they want is for our employees to have a choice. They want this unionization forced on them against their will,” Gerawan said.

“This is a huge victory and well deserved to these thousands of Latino immigrant farmworkers who have been fighting and sacrificing their time and families’ future to simply have the right to choose and vote in America,” Jesse Rojas, Spokesperson for Pick Justice, an advocacy group for Gerawan farm employees.

“The ALRB and UFW clearly continue to show that they are afraid to let workers vote and show what they want and what is better for their families. After glancing through the Fifth District Court of Appeals decision, I find the attached highlighted screenshots worth noting,” said Rojas.

Anthony Raimondo, president of Fresno-based Raimondo & Associates, is the attorney for Gerawan Farms employee Silvia Lopez, who started the petition and campaign to oust the UFW when they returned to the farm following 20 years of absence. The UFW never successfully represented the employees in reaching a contract with their employer, nor did it ever collect union dues from employees.

“The Court of Appeal is very clear,” said Raimondo. “It just says, ‘You’ve got to count the ballots.’”

Anthony Raimondo
Anthony Raimondo

“The first thing that Silvia said to me was how happy she is to get this decision from the Court,” Raimondo continued. “This is a vindication of what the workers have been fighting for, for more than five years now, since they first began this effort to expel the union. They aimed to protect their income from going to fund the UFW’s efforts,” Raimondo stated.

“The workers have been ignored. Their rights have been trampled on by the ALRB. The ALRB has disregarded them. They were told that they didn’t matter. They were told that their voice would never be heard, but they never gave up,” Raimondo said. “They never stopped fighting. This decision is a vindication of the fact that justice can be done and that the right thing can happen when people remain committed to it. I can’t say enough about the commitment these workers have shown to this effort.”

“This is a huge victory for these farm employees,” said California Assemblymember  Jim Patterson who represents the 23rd Assembly District that covers parts of Fresno and Tulare Counties.

Jim Patterson

“I’m happy for them. Justice is being done, although it is taking a long, long time. It’s another indication of just how far off base the ALRB is. Primarily, the ALRB is a tool for the UFW to force the Gerawan field employees into contracts that they do not want, cannot approve, and did not vote for. So it’s a very good decision for these workers to have the kinds of freedoms that everybody else has.”

Patterson emphasized that the ALRB’s goal is to take those kinds of freedoms away. “The vote count will probably go forward. My guess is ALRB will try to drag their feet. But I think this is a solid [Court] opinion. And now we wait and see if the ALRB considers themselves to be above and beyond the law, or whether they recognize that they have gone far afield, and they’re going to have to correct some very, very illegal behavior,” Patterson said.

Raimondo explained, “There is no substantive history in the record that demonstrates that the ALRB had any jurisdiction or any legal standing to take those ballots and stash them away for all of these years. It was a blatant effort to stifle their votes to do the bidding of the UFW. They have gotten caught at it, and now they’re going to have to correct their illegal activity. If they don’t, I think they are going to suffer some severe decisions with these Courts. I think if they don’t comply, they’re going to get very close to breaking Court orders and breaking the law.”

Gerawan added, “Don’t forget, fifteen million taxpayer dollars have been spent to suppress those ballots. That kind of money spent by anyone, even the government, could [indicate] a lot of fraud took place with that ballot box.”

Raimondo claimed, “It is clear that the Gerawan farm employees are not cynical. They believe in the promise of America. They believe in our system of justice. That’s why they have continued to fight. It’s why they have continued to protest. It’s why they have continued to assert their voice in Court.”

“They knew from the very beginning that this was an injustice,” Raimondo continued..”They knew that the ALRB was mistreating them. They knew that they were treated like second-class citizens, but they also believed that if they continued to fight and to do things the right way—through peaceful protest and by asserting their positions in Court—that the right thing would happen. The workers had faith that the system works, that judges would ultimately hear their voices and that justice would be done.”

“The reality here,  I believe, and the Gerawan workers believe, is that in the end, justice will prevail. We believe we will be heard and corruption will not win. The workers’ voice is going to win here. Democracy is going to win here. Those votes will be counted,” Raimondo said.

Officials Applaud Ruling in Gerawan Employees’ Favor

Ballots in UFW Decertification Vote Must be Counted

By Joanne Lui, Associate Editor

Two officials spoke out via press release following today’s ruling that the Agricultural Labor Relations Board (ALRB) must count the ballots cast by Gerawan employees in the 2013 vote to decertify the United Farm Workers (UFW) as their union bargaining representative.

George Radanovich, President of the California Fresh Fruit Association, applauded the decision by the 5th District Court of Appeal.

George Radanovich
George Radanovich

Radanovich stated, “This has been a long time coming. We are encouraged and pleased to see the Court account for the most important opinion in this entire matter, the prerogative of the employees.”

Gerawan employees voted in a sanctioned election in November 2013 to decertify the United Farm Workers as their bargaining representative. Despite having ordered, sanctioned and supervised the election, the ALRB impounded the ballots, withheld a final vote count, and thereby denied recognition and acceptance of the employees’ decision.

Radanovich continued, “Today’s Court action would not have occurred without the determined effort of Gerawan Farming, Inc.; the Gerawan family; and in particular, company president Dan Gerawan, for defending his company and his employees’ right to choose. Finally, sunlight has been cast onto this injustice and the farmworkers’ voice will be heard.”

Assemblymember Jim Patterson (R-Fresno) made the following statement regarding today’s ruling:

Jim Patterson

“This moment is the next step in the most important civil rights battle of our time. More than 2,600 immigrant farmworkers from the Central Valley cast their ballots to determine their own future. Those votes were locked up tight and stowed away by the ALRB—the same agency whose job it is to protect the rights of farmworkers.”

“These hard-working men and women know exactly why their ballots were taken, and they have spent countless hours fighting for the fundamental right to have their votes counted so their voices can be heard loud and clear. Today is victory for them.”

Who Safeguards California Farm Employees’ Rights?

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.

Gerawan Employees
Gerawan Farm Workers Protest against UFW at California Supreme Court.

 

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.”

Who Safeguards CA Farm Workers’ Rights? # 7 – CA Supreme Court

CA Supreme Court Hears Case of Gerawan Farming, Inc. vs. UFW/ ALRB

 

By Laurie Greene, Founding Editor

 

Gerawan Farm Workers Show Company IDs and Paystubs (Identification has been blurred out for privacy reasons.)

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.

 

Anthony Raimondo, of Fresno-based Raimondo & Associates, lawyer for Gerawan farm worker spokesperson, Silvia Lopez

“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.”

 

Silvia Lopez, Gerawan farm worker spokesperson

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.

Marc Grossman, spokesperson for the United Farm Workers of America

 

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.

Dan Gerawan, co-owner Gerawan Farming, Inc.
Dan Gerawan, co-owner Gerawan Farming, Inc.

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.”

Ron Barsamian, attorney for Gerawan Farming, Inc.

 

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.”

David Schwarz, attorney for Gerawan Farming, Inc.

 

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.

Protesting are Gerawan farm workers (in blue) and UFW members (in red)
Protesting are Gerawan farm workers (in blue) and UFW members (in red)

Who Safeguards Farm Worker Rights? – Part 8

Pick Justice, Gerawan Farm Workers Protest Forced Unionization

Who Safeguards CA Farm Workers’ Rights? Part 4 – Motion to Disqualify ALRB Member Hall

ALRB Rejects Gerawan’s Motion to Disqualify Isadore Hall III

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.

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.

BACKGROUND

Condensed Early History

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 Gerawan farm workers harvesting tree fruit
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 processthe 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.

Current History – 2017

Appointment of Isadore Hall III to ALRB

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
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.

Agricultural Community Responds to Hall’s Appointment

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.
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.”

ALRB Decides Gerawan Negotiated “in Bad Faith”

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.

Gerawan Files Motion to Disqualify Member Hall from participating in “Bad Faith” Negotiating Case

Isadore Hall III UFW flag ALRB
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.”

ALRB Rejects Gerawan’s Motions to Disqualify ALRB Member Hall and to Request a Stay from Participating in “Bad Faith” Negotiating Case

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.”

Gerawan Files Motion for Reconsideration of the Board’s Order Denying Motion to Disqualify Member Hall

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.’”

ALRB Denies Gerawan’s Motion For Reconsideration to Disqualify Board Member Hall from Deliberations in this Case

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.”

Next Steps

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.”


Featured photo:  Isadore Hall III marching with UFW prior to ALRB appointment.

Who Safeguards CA Farm Workers’ Rights? Part 5


Resources

Farmers Deserve a Balanced Ag Labor Board,” by George Radanovich, Joel Nelsen, and Tom Nassif, Sacramento Bee, February 23, 2017.

Mandatory Mediation and Conciliation


 

INTERVIEW WITH DAN GERAWAN

UFW and ALRB Want to Impose Contract on Gerawan Employees

“The UFW won an election to represent Gerawan workers 23 years ago; but then, after only one bargaining session, the union disappeared and hasn’t been heard from in 20 years,” Gerawan Farming said in a recent statement. “Last October, the union reappeared and is using decade-old legislation to now impose a contract on the employer and the employees without a vote.”
California Ag Today associate editor Laurie Greene interviewed Dan Gerawan this week on what he is going through regarding the UFW and ALRB. 
Greene: Please introduce your company’s products, # employees, etc.
Dan Gerawan: Gerawan Farming Inc., which grows and ships under the Prima label, is the world’s largest peach grower and employs about 3,000 workers. The company also farms table grapes, nectarines, and plums. We are a family-owned and operated company. Despite our size, I farm with my father, Ray, my brother, Mike, and my wife, Norma. We are very hands-on; this is what we do.
Greene: There are press reports that Gerawan is having a dispute with the UFW. What is that dispute?
Gerawan: We are not having a dispute with the UFW. Our employees are having a dispute. As a company, our dispute is with the state government that is trying to force a contract on us without giving the workers an opportunity to vote. People need to understand that this is not a normal union situation; it has to do with a law being used for something it was never meant for.
Greene: What is your stance on employees having a vote?
Gerawan: We believe the employees should have a vote, and they have made it known they want a vote. They are not saying how they will vote; they just want a vote. When they often express their opinions to us, we stop them and say, “Don’t tell us your preference; we support your right to vote, that’s enough. Everything else is your choice.”
Greene: Can you describe the chronology of your circumstances with the UFW and ALRB?
Gerawan: We lost an election with the UFW in 1990. We had our only bargaining session in 1995. There was never a contract, and the union failed to continue bargaining. The union disappeared; they abandoned our workers.
To this day, we don’t know why. They have told us, “We have no legal obligation to tell you.” We responded, “But you do have a moral obligation. How can you come back after 20 years and tell our workers that you want 3% of their money or you are going to fire them?”
The UFW wrote us a letter in October 2012 saying, “We’re ready to negotiate.” At the time, we couldn’t believe it since the employees didn’t even know they were represented by the union and had been working quite happily earning the industry’s highest wages. But then attorneys explained to us that the UFW would force us into a mandatory process where the state would actually impose the contract on us and our employees, and we would have no right to opt out.
So, the UFW pretended to negotiate for a while. After just eight brief bargaining sessions over a three-month period, during which the UFW never made an economic proposal, the UFW suddenly asked the government to step in to write and impose a contract us.
Greene: Can you explain the Mandatory Mediation Law?
Gerawan: In 2002, the state legislature passed an amendment to 1975’s Agricultural Labor Relations Act. That amendment allowed for mandatory mediation to be imposed in ag labor situations. However, ‘mediation’ is a misnomer; it is really mandatory arbitration. The legislature passed the law in response to a few employers, including one employer (not us) who supposedly dragged out negotiations for many years, 20 years in that particular case.
When the legislature passed that 2002 law, their thought was that that if an employee votes for a union, they are voting for a contract. However, in most industries, employees vote for representation and negotiation for a contract. This is not a normal situation where the union comes in to negotiate, with power, backing up the workers, and then the two parties negotiate a mutual agreement. This is the union invoking a law that allows the state to literally force a contract on the employer and employees.
Keep in mind that the law was meant to remedy dragged-out negotiations. There were no negotiations here to drag out; the union had disappeared. There is nothing in the legislative history that shows the law was to be used in these situations. The UFW’s and ALRB’s stance is basically, “The letter of the law… says if you failed to reach an ‘agreement,’ we can invoke this.” We responded, “That implies that you tried to reach an agreement. You guys never tried. You went away.” Their response, “Well the law doesn’t say we had to try, so we are using that law now to impose a contract.”
Greene: How do you respond to ALRB’s accusations of coercion and forgeries?
Gerawan:  The Company has done nothing to coerce any signatures. We do not know anything about forgeries. We don’t know how many there supposedly are. We don’t know who caused those forgeries, and by that I mean I don’t know if they are saying we caused them or the union caused them.
It doesn’t take any coercion for the highest paid employees in the industry to realize that it is wrong for a union to come back after a twenty-year absence and tell them they will take 3% of their pay or fire them—without a vote. Not even a vote to ratify any contract that might happen.
After hearing this for a few months and being harassed at their homes multiple times by UFW people, the employees, on their own, began a decertification effort. They started a petition and turned it in to the ALRB. Immediately, the UFW started filing unfair labor practice charges against us saying that we were coercing our employees. That is silly.
We did not coerce, and in fact we invited ALRB to go out to our fields to make sure the workers understood they have the right to vote however they want. The ALRB did that.
We also did that. My wife, Norma, and I met with all the employees and told them, “Do whatever you want, choose however you want to choose. But congratulations on having achieved that right through your petition. We are not asking how you will vote.”
Greene: Could the signatures have been forged after you submitted them?
Gerawan: I really don’t know. All I know is thousands of signatures apparently were delivered.
Keep in mind, the union does not want the employees to have a choice, and they are fighting hard to stop the employees from having a choice, especially when the adjudicating agency has shown overwhelming bias against the employer and the employees.
The ALRB’s role, under the Agriculture Labor Relations Act, is to protect employees’ rights as a whole and to cause peace in the fields (which we had before the UFW and ALRB came into the situation). So why is the ALRB stopping the employees from having their vote just because of a relatively few questionable signatures from an unknown source?
After all, this is merely a vote.
We need to keep in mind that this is a declining union that has been gone for twenty years, has done nothing for these workers, and has returned only to pick the pockets of the industry’s highest paid workers and not even allow them to have a vote. I think it is unconscionable that the ALRB has done nothing to stop it, but in fact has taken every opportunity to accommodate this travesty.
Greene: Gerawan Farming has claimed that the ruling by Silas Shawver, regional director of ALRB, failed to provide a count of signatures filed, the number needed for a vote, and the number judged invalid.
Gerawan: This is correct. The ALRB blocked the election citing forgeries and coercion. Mr. Shawver is refusing to give out any information.
My wife and I informed our employees that the ALRB regional director in Visalia canceled their vote because supposedly we and the management of our company coerced our workers’ signatures. Our employees told me flat out that the only coercion has come from UFW and ALRB themselves.”
To continue this interview, please press “more” below!  


Greene: What is behind the ALRB’s finding that Gerawan directly assisted the petitioner and others in the decertification effort?
Gerawan: We have not directly assisted the petitioner. So, what the ALRB is saying is not true. It is simply did not happen.  
When the employees turned in their petition, the ALRB did not announce an election. The employees got very upset and demonstrated at the ALRB office in Visalia to demand their right to vote.
ALRB did not respond, but subsequently cancelled the vote, citing forgeries and coercion. The regional director is refusing to give out any information.
So, on September 30,over 1,500 of our employees reacted by going on strike to protest the ALRB’s and UFW’s cancellation of the vote. We thought we’d be harvesting peaches and grapes that day, but we didn’t.
Greene: Did Gerawan support the stoppage?
Gerawan: Oh no, we did not support the stoppage. We support the workers’ right to choose. But we did not want to see work stopped because we had fruit to harvest that day. But because the workers did stop, the cost for us was significant.
Greene: In a statement you said, “It is unfortunate that our employees felt they needed to take such a drastic action to have their voices heard. We are still hopeful that [the board] will protect the workers’ right to choose.” Are employees grateful for your company’s advocacy or opposed?
Gerawan: The employees have told us that they are grateful that we support their right to choose. At no time have we ever expressed a preference to them one way or the other. We want them to choose.
Greene: What rights do the UFW and ALRB have?
Gerawan: The UFW itself doesn’t have much power because they have such a small membership and are declining, but they have been handed an inordinate amount of power by the legislature. With such power, the UFW no longer needs workers’ support. They no longer need to organize the way a normal union organizes. Their members are created by legislation, not a vote.
We are about to have a contract literally written for us by a state agency and imposed on us. No one signs anything. Neither we nor our employees can opt out.
This type of ag labor unrest hasn’t happened since the 60’s and 70’s, and back then it was completely the opposite of what’s happening now. Back then, the workers wanted union and government protections. Now, the workers are fighting to be free from union coercion and government imposition. It’s hard to believe that the very law that was created to protect farm worker rights is now being used to rob those workers of their rights.
Greene: Why do you think the UFW is targeting Gerawan Farms?
Gerawan: I think they are going after the old abandoned elections.
We have the highest paid employees in the table grapes and tree fruit industry. No one disputes that, not even the union.
By the way, the union has no contracts with table grapes or stone fruit farm employees, and they have not been able to secure any. The last contract they had was with a Hanford farmer, and after a few years, those workers voted to throw the union out.
Clearly we are the biggest target, especially for a union that now is barely 3,000 members. If they prevail against our employees, this would double their size. Overnight, the majority of UFW members will be co-opted members created by legislative fiat, not by worker choice. The UFW needs this badly because their expenses exceed their income, and this is all public knowledge.
Greene:  What is the employer mandated to do?
Gerawan: To live within the terms of the contract. There will be no other option. As an example of what the imposed contract will do, it will throw out our meritocracy, which has been an important part of our success, and replace it with seniority. That’s something we specifically told the ALRB arbitrator would harm us.
We made it clear to the ALRB, “Do not mess with that. We have been a shining example of success in creating high wages in an industry that has had a lot of failures. Don’t mess with our formula for success, please.” They completely ignored our plea.
Imagine any business having a contract written by the state and imposed on them–wages, working conditions and everything else. It’s hard to believe that it is actually happening, especially when we’re already paying the highest wages and benefits.
Greene:  Did they have to prove any wrongdoing to do this?
Gerawan: To invoke mandatory mediation there has to be an unfair labor practice. We were found guilty of an unfair labor practice in the 1990s after the election. I think it was for laying off a crew at the end of the season.
Now that the union has come back, we have more unfair labor practice allegations. For example, for the buses to Sacramento, that we had nothing to do with, we have an unfair labor practice charge against us. For the employee walk out, that we had nothing to do with and which cost us a huge amount of money, we have an unfair labor charge against us.
Who adjudicates them? The ALRB. A charge does not mean you are truly guilty of doing something; it only means that the union has accused you of something.
Greene: What are your other unfair labor practice charges?
Gerawan: There have been many. It seems to be part of the game. For example, last October, when the union came in, we felt compelled to let our employees know about this. With our lawyers’ review, we sent our employees a letter with the facts only, but we received an unfair labor practice charge just for that.
So, because the UFW suddenly decides to reappear after being gone twenty years, we can no longer communicate with our employees?
Once the union files an unfair labor practice charge, the ALRB investigates, which takes months. Then, they will often side with the union against the employer and file official changes, which will eventually be heard by an administrative law judge. It could be a year or more before the facts come out. Meanwhile, the ALRB and UFW use those charges to damage your reputation, even though there has been no proper discovery or hearing.
Plus, if the unfair labor charge is used to block an election, and the investigation takes months, then the available time window for the election will probably lapse, and the employees’ right to a vote will be taken away from them. The system actually seems designed for that to happen.
Greene: Is there a pattern of unfair labor practices against you?
Gerawan: They come in batches. We got seven a few days ago for the bus trip, the strike, for whatever they conjure up. The unfair labor practice charges are just one or two sentences. From the union standpoint, they fill out a form, and then ALRB does the rest. ALRB sends their team of investigators out to “prove or disprove the unfair labor practice,” but I do not think they want to disprove anything. The ALRB has shown a clear pattern of wanting to rob our employees of their right to choose.
Greene: Gerawan is well known in taking good care of their employees. With this in mind, what could the UFW offer that is missing?
Gerawan: First of all, wage-wise, we are far above the rest of the industry. In fact, many in the industry have told me that they cannot believe that this is happening to the company that pays the highest wages and offers the best working conditions.
So what could the UFW possibly offer? Whatever it is that the state feels it can force the grower to pay whether or not it makes sense or is viable for the business. Again, this is not a normal situation where union organizers represent workers at the bargaining table.
Greene: What is it like for your employees?
Gerawan: The employees have told me that they cannot believe this is happening to them. They say they left Mexico because of things like this. They said, “You wait Dan, we’re going to have a vote.” I said, guys, I hope you do, but you may not have the chance. The employees said, “What do you mean? This is America! When the state hears that all we want is to vote, then they will understand.”
I had to tell them that I was sorry that this it is such a tragedy. We all assume that we will have the simple basic right to vote, but apparently that’s not how it is anymore.
Greene: You have met with Sylvia Torres-Guillén, the general counsel with the California ALRB. How did your conversation go with her?
Gerawan: Yes, my wife and I met her during one of our hearings. She was very cordial. We both had just heard my attorney tell the Judge that ALRB was so biased that it would never let our workers have a vote. We told her that we hoped that she would prove my attorney wrong because our employees need her help to protect their right to vote.
She said she would let them vote if… at which point I politely interrupted and pleaded to her that it was her responsibility to get rid of the “if,” and to make sure the rights of the workers were protected so that peace would be restored to our fields.