In response to passage of the Farm Workforce Modernization Act by voice vote in the House Judiciary Committee, Nov.20, Western Growers President & CEO Tom Nassif issued the following statement:
“Western Growers applauds today’s passage of the Farm Workforce Modernization Act in the House Judiciary Committee. We thank the lead authors, Congresswoman Zoe Lofgren and Congressman Dan Newhouse, and the bipartisan group of legislators who have negotiated and supported this bill.
“Throughout the U.S., agriculture is experiencing a critical shortage of labor that jeopardizes our ability to continue producing an abundant, safe and affordable domestic food supply. Securing a reliable and skilled workforce is critical to the future viability of America’s family farms,” said Nassif.
This bill does exactly that.
“By protecting existing, experienced farm workers, and streamlining the agricultural guest worker program to provide a more accessible, predictable and flexible future flow of labor, the Farm Workforce Modernization Act contains real solutions to the labor crisis facing the industry.
“This bipartisan bill, which has 29 Democratic and 23 Republican co-sponsors, has been carefully crafted through a series of difficult stakeholder-driven negotiations, and has garnered the widespread support of nearly 300 agricultural organizations across the country, as well as the U.S. Chamber of Commerce and farm worker unions.
“While the Farm Workforce Modernization Act is not perfect, we remain committed to working through the legislative process to address our outstanding concerns, and encourage to Speaker to bring this bill before the House floor for a vote as soon as possible.”
New Farm Workforce Act Would Be Big Step to Immigration Reform
Noting that California farmers and ranchers have long sought reforms and improvements to immigration laws that would enhance the lives of agricultural employees and their families, the California Farm Bureau Federation said it supports a bipartisan bill introduced today.
The Farm Workforce Modernization Act of 2019, introduced by Reps. Zoe Lofgren, D-San Jose, and Dan Newhouse, R-Wash., would improve agricultural visa programs and accommodate immigrant agricultural employees already in the United States, while assuring border security.
“This comprehensive legislation contains key elements that address current and future workforce needs for agricultural employers and employees in California and throughout the nation,” CFBF President Jamie Johansson said. “The reforms in the Farm Workforce Modernization Act of 2019 will provide much-needed solutions for agricultural employers and employees.”
The act would allow immigrant agricultural employees in the United States to earn legal status through continued agricultural employment.
“We need to deal fairly with the existing agricultural workforce and their immediate families,” Johansson said. “The people who work on farms and ranches are valued members of rural communities. Their contributions to our communities and our food system should be recognized by allowing them a chance to gain legal status.”
The bill would also modernize and streamline the existing H-2A agricultural visa program, to provide more flexibility for employers and ensure critical protections for foreign employees.
“Improvements to the H-2A program would make it much more flexible and valuable to California farm employers and employees,” Johansson said. “For example, a pilot program in the bill would allow H-2A employees to move from farm to farm for employment, a portability option California producers have long sought. And, for the first time, the bill would accommodate guestworker visas for year-round operations such as dairies and nurseries.”
The California Farm Bureau Federation works to protect family farms and ranches on behalf of nearly 36,000 members statewide and as part of a nationwide network of nearly 5.6 million Farm Bureau members.
From California Citrus Mutual
It is with great excitement that California Citrus Mutual announces our support for the “Farm Workforce Modernziation Act” introduced today by Congresswomen Zoe Lofgren, chair of the Judiciary Committee.
“We applaud Congresswoman Zoe Lofgren and members of the California congressional delegation that provided leadership on this critical issue,” states California Citrus Mutual President Casey Creamer. “The Farm Workforce Modernization Act creates a pathway to securing a legal workforce now and in the future while also providing stability and security to our employees and their families.
“This legislation is critical to the sustainability of the fresh produce industry and our continued ability to grow fresh and healthy citrus products in California. The existing system is out-of-date and does not meet the needs of employers or employees. We must put aside political differences and create a reasonable solution. California Citrus Mutual remains committed to working with our partners, Representative Lofgren, and members of Congress to resolve outstanding concerns and reach a deal that can supported in the United States Senate and signed by the President,” continues Creamer.
From Western Growers Association
“On behalf of Western Growers members, farmers across the country who depend on an adequate supply of labor for their livelihoods, and American consumers who prefer a safe and secure domestic food supply, we wish to thank Representatives Zoe Lofgren and Dan Newhouse for approaching the agricultural labor crisis in a thorough, practical and bipartisan manner.
“The Farm Workforce Modernization Act addresses two critical needs for American agriculture – to retain existing, experienced workers and to ensure a reliable future flow of guest workers. Furthermore, after a satisfactory transition period, the bill includes E-Verify for agricultural employers, demonstrating the commitment our industry has made toward a long-term labor solution.
“The introduction of this bill, which is the product of many months of dedicated work and careful negotiation between legislators, staff, and key stakeholders, constitutes an agreement that few thought was possible. However, this is just the beginning. What lies ahead is a very important process that will require the support of both political parties and the President.
“The Farm Workforce Modernization Act has the resounding support of the agriculture community, and contains principles that have historically received backing on both sides of the aisle. We, along with our Congressional champions and partners in the Agriculture Workforce Coalition, commit ourselves to moving the Farm Workforce Modernization Act forward this legislative session.”
Chavez Spent His life Trying to Improve Farm Worker’s Lives, Instead of Threatening Their Lives
By Jesse Rojas, Spokesperson for Pick Justice
Cesar Chavez spent his life trying to improve life for farmworkers, fighting for changes he felt would bring about civil rights and justice for workers. At the end of this month, California state legislators plan to honor Cesar Chavez’s birthday as a day of public service.
The work Cesar Chavez did organizing farmworkers is credited with spurring better working conditions and increased wages, putting people who perform difficult work but still struggle to provide for their families a step closer to achieving the American Dream in California.
Cesar Chavez has been portrayed as the founder of The United Farm Workers union to help struggling farm workers achieve a better life. Growing up in the fields in the Central Valley town of Delano, this fight begun by Cesar Chavez is personal to me. I too come from an immigrant background, I’ve eaten with the farmworkers who fought alongside Cesar Chavez and heard their stories.
Today, however, Cesar Chavez would be saddened to see what the UFW has become.
After voting overwhelmingly to leave the UFW, Gerawan farmworkers spent five long years in court fighting the UFW and the ALRB, who refused to count their votes until they were ordered to by a judge. The Gerawan workers, just like the farmworker activists before they were fighting for a better life – and against a UFW contract that would have lowered their pay.
While in Cesar Chavez’s time the UFW gave farmworkers a voice, today’s UFW instead seeks to silence the workers.
When Gerawan farmworker activist Silvia Lopez, one of the leaders of the fight to leave the UFW, tried to speak with former Governor Jerry Brown, a top UFW leader physically blocked her way. The whole incident was captured on video and reported by the Sacramento Bee.
Cesar Chavez spoke out against humiliation and oppression, such as the methods of today’s UFW bosses.
The Gerawan farmworkers are far from alone. Today, the UFW represents just 1 percent of farmworkers, and more petition the ALRB to leave all the time. As reportedby the Los Angeles Times, former ALRB Chairman William B. Gould IV, who resigned from the agency in disgust, stated the ALRB now spends more time on petitions from workers trying to leave the union than those trying to join.
In fact, the UFW even abuses its own workers, who the Los Angeles Times reported had to take the union to court to force the union to pay almost $2 million in unpaid wages and penalties.
Cesar Chavez devoted his life to fighting for workers rights. He supported workers right to choose whether or not to join a union. Civil rights for farmworkers cannot be achieved when the government looks the other way when workers are abused, regardless of who is committing the acts of oppression.
That’s why we cannot honor Cesar Chavez’s legacy without speaking out against the abuses of today’s UFW.
Jesse Rojas is a farm worker rights activist, spokesperson for Pick Justice, and founder of California Farm Workers & Families PAC. Rojas is a tireless advocate for liberty and civil rights and often provides news commentary on issues such as entrepreneurship, labor relations, and politics.
Rojas also launched Mi America En La Radio, the first conservative Spanish-language radio show in the Central Valley. As CEO of The Redd Group, LLC, his organization offers labor relations, human resources consulting, public relations and political consulting.
Steve Scaroni, along with his wife Brenda, owns Fresh Harvest, a premier labor provider, staffing and harvesting company for the agricultural industry in the western United States.
“Expansion for Fresh Harvest is coming, but the main emphasis is crops related to salads. They even expanded into citrus last year,” Scaroni said.
Fresh Harvest has also expanded into pears. Vegetables are the heart and soul of Fresh Harvest.
“Anything that goes into a salad, a lot of lettuce, romaine, broccoli; we touch a lot of salads every day,” he said.
The H-2A temporary agricultural program allows agricultural employers who expect a shortage in domestic workers to bring non-migrant foreign workers to the U.S. to perform agricultural services for a temporary or seasonal nature.
“If it wasn’t for H-2A, I wouldn’t be in business,” Scaroni said.
Scaroni explained that the H-2A gets legal workers to serve his customers demands for the services he offers. A majority of the demands are labor and harvesting, along with other farm services.
“We’re bringing up 100 irrigators this year to put throughout the Salinas Valley because our Salinas customers can’t get enough irrigators,” he said.
Laborers that show great work ethic will be able to work for a longer period of time. A worker could technically stay if moved from contract to contract.
“If the timing works, he gets up to three years, but then he has to go back for 90 days,” Scaroni said.
When temperatures are heating up, it’s important that growers are keeping farm employees safe to prevent exhaustion and heat-related illnesses and to ensure that their employees go home to their families at the end of the day.
On an average day, temperatures in fields can range from eight to 10 degrees hotter than the average temperature in the area.
“We try always to have a regular tailgate meeting to remind all of our farm employees about the hazards of working when temperatures are more than 80 degrees,” said Ron Samuelson, a Fresno County grower who produces almonds and cherries. “We educate our employees about the importance of drinking water, the emergency procedures if needed. And for increased prevention, we are in constant contact with the workers throughout the day.”
Samuelson said that shade is essential once temperatures reach around 80 degrees and they make sure there is adequate shade in the morning if temperatures are going to get to that high.
“If field employees are in an almond orchard where there are mature trees, there is adequate \shade for them to sit and rest under a tree to cool down,” Samuelson explained. “And when the temperature begins to reach 100 degrees, it’s not uncommon for work to stop to give employees a break from the heat.”
“If temperatures go over 95 degrees, we employ other procedures. The first thing we would do is to talk to the guys to get their input as to what’s their thoughts on how soon they want to stop working for the day.”
“A lot of times, we’ll start a little bit earlier and knock off earlier. Then we take breaks more often as well. We try to maintain that, encourage them to drink at least a quart per hour throughout the day. We make sure they let us know if the water jugs are down to a gallon are less. That way we can get them refilled right away.”
Employee safety is paramount because it would be impossible for farmers to farm without them.
“So it’s essential to help them get through the day and avoid heat stress. At the end of the day, our employees matter most,” Samuelson said.
H2-A employees are the heart of one major farm labor company. Steve Scaroni owns Fresh Harvest, a premier labor provider and staffing and harvesting company to the agricultural industry and the western United States. But the company’s main emphasis has always harvested crops related to salads; they have also expanded into permanent crops.
“Last year, we started citrus and pears, and we will continue to expand in vegetables with anything that goes into a salad, lots of head lettuce, romaine, and broccoli, which is what we have been doing for a long time,” Scaroni said.
And then we touch a lot of salads every day. The H2-A temporary agricultural program allows agricultural employers when anticipating a shortage in domestic workers to bring non-migrant foreign workers to the US to perform agricultural services for a temporary or seasonal nature.
“If it wasn’t for H2-A, I wouldn’t be in business. I mean that’s the only way to get a legal worker into California to serve my customers demands for the services we offer, which is mostly labor and harvesting,” Scaroni said.
“And we’re even starting to do a lot of farm services. We’re bringing up 100 irrigators this year to put throughout the Salinas Valley because our Salinas customers can’t get enough irrigators,” he said.
Being a labor contractor has its difficulties. It takes a lot of work. It’s a very bureaucratic process-driven application process.
“Laborers that show great work ethic will be able to work for a longer period of time. A worker could technically stay if I can move it from contract to contract, and I can keep the temporary employee for three years,” Scaroni said. “But then he has to go back for 90 days, but it’s very hard to time the contracts for that to work.”
“So most guys, they’ll do five, six, seven months. They’ll go home before they can come back. And then the guys that are really good workers with and a great attitude and really get it done for us. We’ll move to another contract. Will even retrain them in a different crop if they have the right attitude and work ethic,” he said.
Farm Workers and Dreamers Work Hard To Reach the American Dream
By Patrick Cavanaugh, Farm News Director
Joe Del Bosque is a diversified farmer in western Fresno and Merced counties. At one time, Del Bosque was a farm worker in the field and eventually was able to buy some acreage and expand over time. Now, Del Bosque has his own farm worker employees who are climbing the economic ladder like he did.
“When I see the farm workers on my farm, it’s like looking at my ancestors. It’s like looking at how hard they worked, working in the fields, picking crops, and so forth, and trying to do the best they can to raise their families and give their children a push-up the way I got it,” Del Bosque said.
“I know that my farm workers are trying to do the same thing. They’ve got children, they’re trying to push them up, and I see that happening because a lot of them have children in college right now. They’re getting educated, they’re going to go on to become professionals, and I’m very happy about that,” he said.
“There’s no doubt. They’re definitely climbing the economic ladder. I see on our farm that a lot of our farm workers have bought homes. Even some of the Dreamers, who are now at risk of being deported, have bought homes and they’re worried about what’s going to happen to them,” Del Bosque explained. “Some of them, and other folks in our communities that have invested in small businesses and so forth, have really become members of our society, of our economy, and their efforts are sometimes underappreciated.”
Del Bosque spoke of Dreamers that are working with him. “We have one, for instance – he does maintenance for us. He’s so skilled with repairing equipment and building things and so forth. He’s been with us for a while, and is a very valuable member of our team.”
Post-Labor Day, Forced Unionization Hearing at CA Supreme Court
By Laurie Greene, Founding Editor
Forced Unionization Hearing
On Tuesday, Sept. 5, one day after Labor Day, busloads of concerned farmers and farm workers will arrive at the Supreme Court of California in San Francisco to support Gerawan Farming and farm workers—and quite possibly 80,000 family farms in the state—against forced unionization in the first case on the Court’s agenda: Gerawan Farming, Inc. v. Agricultural Labor Relations Board (United Farm Workers of America, Real Party in Interest) and Consolidated Case, S227243 (Kline, P. J., assigned justice pro tempore).
Gerawan Case History
Explaining the case history, David Schwarz, attorney for Gerawan Farming, Inc. from the Los Angeles-based law firm of Irell & Manella LLP, said, “This case began almost five years ago in mid-October of 2012. The United Farm Workers (UFW) sent a letter to Gerawan Farming demanding that the company resume bargaining over a collective bargaining agreement. The UFW had won an election at Gerawan in 1990 and was certified to represent the workers by the California Agricultural Labor Relations Board (ALRB) in 1992. After one preliminary negotiating session in early 1995, the union disappeared and wasn’t heard from by Gerawan for nearly 20 years.”
“The UFW resurfaced in late 2012 demanding negotiations,” Schwarz stated, “but after ten bargaining sessions, the union abandoned the bargaining table.” This scenario was similar to UFW’s behavior after having won several certification elections by California farm workers employed on separately-owned farms but was unable to obtain first contracts with many growers on behalf of these farm workers.
Farm Worker Rights under the Agricultural Labor Relations Act
According to the ALRB website, all agricultural employees in California, whether or not they are represented by a labor organization (union), have certain rights under the Agricultural Labor Relations Act (ALRA or Act). The purpose of the Act is to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations. The ALRA became law in 1975.
The Act describes and protects the rights of agricultural employees to make their own decisions about whether or not they want a union to negotiate with their employer about their wages, hours, and other working conditions. Where the employees, through a secret ballot election, have selected a union to represent them, the Act requires that the employer bargain in good faith with the union concerning wages, hours, and other working conditions.
The Agricultural Labor Relations Board (ALRB) is the state agency established to enforce the Act.
Mandatory Mediation and Conciliation (MMC)
“At this juncture, UFW invoked a process known as “Mandatory Mediation and Conciliation (MMC), a euphemism for forced-contracting, passed by the legislature in 2002 at the behest of UFW,” Schwarz explained. “Through MMC, the State of California imposes a contract on the employer and its farm workers at the union’s request. In Gerawan’s case, the failure to reach a contract can be explained by the failure of the UFW to show up and attempt to negotiate; however, that failure to bargain—or for that matter, the union’s complete abandonment of the Gerawan farm workers—was deemed irrelevant in the eyes of the ALRB.”
“The ALRB argued that the union certification in 1992 means the UFW remains the perpetual representative of Gerawan workers now and forever,” said Schwarz, “and until such time as the workers vote the union out through a petitioned election process known as decertification.” The ALRB disregarded both UFW’s failure to represent Gerawan farm workers in any successful contract negotiation and the UFW’s failure to qualify to collect union dues from Gerawan farm workers. Most significantly, the ALRB disregarded the legally-sanctioned and ALRB-supervised election on November 5, 2013, in which Gerawan farm workers had the opportunity to vote to decertify the UFW or not—the ballots of which have never been counted and are believed to be stored in an unknown, unsecured location.
“Let’s be clear,” Schwarz explained, “at no point after this union was certified until this union invoked the MMC process, was there an allegation that Gerawan refused to show up or refused to negotiate the terms of the contract. So this is not a case about a grower refusing to show up at the bargaining table or a grower inserting that the abandonment forfeits the right of the union to bargain.”
“Rather, this is a case about whether or not the union’s abandonment means that it forfeits the right to compel the State of California to force a contracting process on the workers. And that’s the key difference: between duty to bargain, which is a continuous bargain, and the right, as the union claims, to impose a state-ordered contract.”
What is at Stake for Farm Workers?
Tal Cloud, president and co-founder of Fresno-based family-owned Paper Pulp & Film, Inc., a converter of printing and industrial papers, including raisin (drying) trays, is part of the team that organized the trip. Cloud said, “The UFW and the California ALRB are hoping the California Supreme Court will rule in their favor by forcing unionization on California farms and farm workers—the next flash point in the two-decade long battle between Gerawan Farming and the UFW.”
“People don’t understand that this is incrementalism,” Cloud said. “If the California Supreme Court rules against Gerawan, it literally puts every agricultural operation of any size in the state right in the “bulls-eye” for mandatory UFW unionization, and that is what is so concerning. And although people do not understand it, the laws are already all there; they just need to be formalized. So, yes, it is really scary.”
“The ALRB has power in these courts due to California legislators who have given the ALRB all these powers, but without checks or balances,” said Cloud. “So, you have an agency that basically plays god with people’s lives and there are no legitimate governmental organizations or courts looking at it, until now that [the forced unionization case] has come to the California Supreme Court.”
The upcoming California Supreme Court hearing follows the UFW’s appeal of a lower court ruling in favor of Gerawan on the same issue in 2015. “We are hoping that the Court goes by the law, and does not give [the ALRB and UFW] this kind of opportunity to really put all of our operations in California at risk for forced unionization and forced contracts,” Cloud said.
“The bus trip on Tuesday is to make a statement and not sit by silently. The hearing is at 9:00 A.M., and more than 300 people from the Valley are going. We are leaving at 3:30 AM, providing food for our passengers and protesting outside the Supreme Court. The UFW also will be rallying at the Supreme Court.
It remains uncertain if farm workers will be allowed inside the courtroom. Cloud said, “There has already been a lot of back and forth about not allowing any farm workers, or Silvia Lopez (the Gerawan farm worker spokesperson) into the courtroom. The attorneys are still fighting on that. But there will be a big protest, so to speak, outside.”
“There are public areas for us to be in, and we will be peaceful like all the other demonstrations that we have done,” Cloud said. “My hope is that everyone stays safe and we do not have extremists or rabble-rousers there who try to cause problems.”
Cloud said there is a glimmer of hope for the farming industry because the UFW lost to the lower courts. “But, you just don’t know. We are hoping these farmers, farm workers and protesters will bring attention to this issue,” he said.
Once the California Supreme Court hearing is completed, the court will have 90 days to make its ruling. “The reality is: If agriculture does not get behind the effort against MMC now, and the California Supreme Court reverses the lower court’s decision, literally every farming organization in California could face unionization. And that is a scary thought,” said Cloud.
“Likewise, if the ruling goes against the UFW,” Cloud said, “I am sure the case will go to United States Supreme Court, which would certainly be a do-or-die point for agriculture.”
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.
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.
The majority of employees twice asked ALRB for an election to decertify the UFW. At the ALRB’s request, the Fresno Superior Court intervened and supervised the decertification petition process—the first time in ALRB history that a court oversaw an ALRB election.
On November 5, 2013, thousands of Gerawan workers cast secret ballots to decide whether to decertify the UFW. The ALRB impounded the ballots, which remain uncounted to this date in an undisclosed (possibly insecure) location.
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.”
“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.”
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
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.”
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.
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 andattorney 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 March20, the UFW filed a claim alleging that Gerawan violated the ALRA by “proposing and insisting on” theexclusion 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.”