Editor’s Note: Anthony Raimondo with Raimondo & Associates filed a motion with the Fifth District Court of Appeal in Fresno to count Gerawan ballots.
SILVIA LOPEZ AND GERAWAN FARMING, INC V. AGRICULTURAL LABOR RELATIONS BOARD
COURT OF APPEAL OF THE STATE OF CALIFORNIA IN AND FOR THE FIFTH APPELLATE DISTRICT (FRESNO)
To Whom It May Concern:
On May 30, 2018, the Fifth District Court of Appeal in Fresno issued a unanimous decision that the Agricultural Labor Relations Board (ALRB) violated farmworkers’ Constitutional and statutory rights by refusing to count their ballots, essentially stripping them of their right to decide for themselves whether to be represented by a union.
Silvia Lopez and her co-workers from Gerawan Farms organized themselves in opposition to the state’s effort to force the United Farm Workers Union, a dying union looking to save itself with money from their paychecks, and through determination, organization, and civil disobedience forced the ALRB to hold what was the largest farmworker vote in history. From the dawn hours to late in the evening, thousands of farmworkers voted on whether to be represented by the union. Sadly, the ALRB, in cahoots with the union, refused to count the votes, suppressing the workers’ vote in order to protect the UFW.
Since that time, the workers have been fighting to expose ALRB corruption and get their ballots counted. While they believed that day had finally come, the ALRB has chosen to defy the court and continues to refuse to count the ballots. In fact, the ALRB refuses to confirm where the ballots are stored, or whether it has them at all.
On behalf of the Gerawan workers, Silvia Lopez has filed a motion with the Fifth District Court of Appeal in Fresno, respectfully requesting that the Court order the state to immediately open the ballots, complete the election process, and preserve the record of the election as appeals wind their way through the Court.
The workers believe, as the Court ruled, that to suppress worker votes violates not only principles of democracy, but principles of government transparency as well. In the view of the workers, there is simply no justification to refuse to count the ballots, except for a desire to avoid exposing the overwhelming worker opposition to UFW representation.
Labor Issues—Costs and Farmworker Shortages—Challenge Growers
By Brian German, Associate Broadcaster
This year, farmers grappled with labor issues such as shortages and increased labor costs. Some growers had more than enough workers available, while others experienced difficulty in meeting their labor needs. Dave Phippen, co-owner of Travaille & Phippen Inc., a vertically integrated company that grows, packs and ships their own almonds, described some of their struggles with labor this year. “We employ a little more than 50 people year-round, but for harvest we ramp up an extra 15-20 people. There was a squeeze on the availability of the labor and a challenge with what we thought was an acceptable rate of pay,” said Phippen.
As minimum wage increases incrementally every year, growers will struggle to keep up with the higher wages. “There was a new reality in the typical forklift driver, people working in receiving, people sampling,” Phippen elaborated. “We’re paying a little bit more for all of those tasks this year, and because there were more employment [opportunities], it was harder to find people who were available and willing to work.” Phippen also noted that employees “were requiring a greater compensation rate than last year for the same job.”
Travaille & Phippen’s operation has had to reevaluate employee compensation. Phippen explained the principle that as minimum wage increases, compensation rates compress, such that a person who was earning $15 used to be $5 above minimum wage, but is now is only $4 above minimum wage,” Phippen said.
The current federal minimum wage, established in 2009, is $7.25 per hour, up from $5.85 just two years prior. Of the top 10 agricultural producing states in the country, only 4 have minimum wage rates higher than the federal level. California and Massachusetts have the highest minimum wage levels of any other states.
Travaille & Phippen was already compensating a great deal of their labor force above minimum wage; however, to stay competitive and retain their workers, they increased their compensation rates, which caused a ripple effect throughout the supply chain. As their labor costs increased, they had to charge growers more for processing. “It had a big impact on them,” said Phippen, “particularly because those growers are receiving less revenue for their crop this year than they did last year. It was quite a squeeze for our growers and we were caught in the middle of that squeeze,” Phippen explained.
Labor issues have also been a significant concern for Mark Van Klaveren, a diversified farmer in Madera who grows almonds, watermelons and Thompson seedless grapes. Van Klaveren noted that timing plays a big role in their labor situation. “Since we tend to pick our Thompson seedless late, when there is a lot of sugar, we were able to get plenty of labor because most of the other vineyards were finished. Their farmworkers were looking for someplace to work.”
Van Klaveren reported that labor proved more challenging for their other crops. “I have a steady crew for watermelons, although with the new laws coming into effect, we are going to have to make some changes and mechanize a lot more of that harvest,” Van Klaveren noted.
Labor costs will become further complicated in the years ahead as overtime limitations established in AB 1066 phase in, beginning in 2019, with all agricultural operations expected to be in compliance by 2025. The combination of increased wages and the limitation of hours will change the way many farms operate. Some growers will increase mechanization. Others growers of labor-intensive crops may replace their crops with commodities that require fewer hours to harvest.
Van Klavern noted, “The only options we have are to mechanize or get out—one of the two. We can’t afford to produce at the same prices we’re getting right now with much higher labor costs. Some machinery out there can do what we need to do and we will look real hard to get some of that in our operation,” said Van Klavern.
An economic analysis conducted by the Highland Economics firm, shows AB 1066 having significant consequences for California agriculture. The study found the policy would reduce farm production as well as farmworker income, and the new time constraints on farmworkers would negatively impact California’s overall economy.
Van Klaveren is skeptical the new legislation will create any positive outcomes. “Workers want to put in the hours. They want to work. If we’ve got to pay them higher wages to start with, and then overtime on top of that after eight hours? There are certain jobs that won’t sustain the higher wages,” Van Klavern said.
In addition to increased costs for employers, increased minimum wage negatively affects workers who are trying to get their foot in the door of a farming operation. When the government raises the entry-level wage so high that people really have to produce a lot per hour, Van Klavern clarified, inexperienced applicants will suffer. “If you cannot produce a volume of work that is worth $15 an hour or more, you cannot work because nobody is going to hire you to lose money,” noted Van Klaveren.
Collectively, farmers are looking at overall labor cost increases between 5 and 15% over the next few years, depending on the crop. Van Klavern expressed a widely-held view that continued government intervention, particularly in the area of wages, is making farming in California unnecessarily difficult. “The whole issue of employment is a private agreement between an employee and employer, as in, ‘I will work for you for so much an hour and try to produce to your expectations.’ In other words, if somebody is willing to work for $8 an hour, why not let them work for $8 an hour? If it is fine with them and fine with the employer, then why not?” said Van Klavern.
The costs of labor and limitations on farmworker hours, combined with the costs of water and increasing environmental regulations, may prove insurmountable for California agriculture. “The economics is all simple, but the government steps in and complicates everything. I guess that leaves it to us to have to figure out how to swerve between all the regulations and stay in business,” noted Van Klavern.
By Patrick Cavanaugh, Farm News Director and Brian German, Associate Broadcaster
California ag leaders hoped that Governor Brown would see how the AB 1066 overtime bill would actually hurt farmworkers and veto it. Now that the Governor has signed it, the following ag leaders weigh in on AB 1066 consequences: Norm Groot, executive director of the Monterey County Farm Bureau; Bryan Van Groningen, field manager for Van Groningen & Sons Farms; and Anthony Raimondo, a Fresno-based attorney who has been representing farmers and farm labor contractors for over 15 years, among them.
Norm Groot anticipated, “The end result of AB 1066 is a big move to mechanized harvesting, which probably means a change in some of the crops that we’re growing here simply because currently we can’t harvest lettuce or strawberries or some of the other vegetable crops by mechanized means. Lawmakers are forcing the hand of the growers to move into crops that are less labor intensive and thus, save the [labor] cost,” said Groot.
Groot noted the inaccurate AB 1066 assumption—that an increase in overtime hours and pay will result from its passage. “We will probably see their hours cut back to the eight hours a day and forty hours per week,” he explained, as stipulated in the law. “Growers will adjust their planning schedules to the amount of laborers that they think they have available for harvest. It’s not an automatic given that we’re going to see all these paychecks increase, simply because we’re putting overtime at more than eight hours a day or after forty hours a week,” Groot said.
Groot added that farmworkers are not in favor of losing 33% of their income at this point. “I think overall, the unions have been supportive of this particular change, but the unions do not represent the majority of the laborers or field workers at this point,” he said.
“I think if you were to ask the average field worker whether he wants to work ten hours a day and sixty hours a week, he would probably say yes. Field workers want that income. They know they work in a seasonal business; they have to earn their income when they can,” he explained.
Bryan Van Groningen
“Our farmworkers, our employees, love to put in the extra hours because this is the time that they’re making wages. Our company is accustomed to paying overtime if that’s what it requires,” said Van Groningen, “and the majority of our workers are already satisfied with the existing compensation structure.”
But Van Groningen noted the problem lies in what is considered overtime. With a shorter workday, overtime compensation rates will kick in much earlier than in the past, which will end up being a tremendous cost to the employer. “That’s going to cause our farm to mechanize a little bit more to try to get through the harvest more bit quickly because [the cost] is going to become too big of a burden,” he said.
Growers want to help their employees as best they can, but Van Groningen predicts reduced hours may become a necessity. “It’s just smart business. We don’t want to cut hours, but if we’re forced to because our bottom line is starting to become an issue, that’s what we’ll have to seriously consider,” he said.
Anthony Raimondo foresaw the effects of AB 1066 could put California at a disadvantage in the global marketplace. “At the very least,” Raimondo said, “employers will be forced to evaluate where they can cut production costs.”
“The increased overtime in some industries is going to drive automation,” said Raimondo. “So you are going to lose jobs because now it’s worth it for people to do the research and development to have more automation, more machine-harvested crops and less labor.”
Raimondo also expects some employers to add more H-2A temporary agricultural guest workers to make sure hours stay low enough to prevent their costs from increasing. “In the end, this is really going to cost farmworkers in terms of their real wages and it creates a massive economic disadvantage for California’s agricultural industry,” he said.
Policies like AB 1066 become increasingly problematic as the global agricultural industry continues to become more competitive. “Increasingly, agriculture has become a global marketplace in which we compete against countries that do not maintain the same labor standards nor the same environmental standards that we maintain, so our agricultural industry continues to remain at an economic disadvantage with the rest of the world,” noted Raimondo.
Featured photo: Norm Groot, Monterey County Farm Bureau executive director
In an exclusive interview with Fresno attorney Anthony Raimondo, California Ag Today’s Patrick Cavanaugh discussed the significance to farmworkers of yesterday’s Agricultural Labor Relations Board (ALRB) decisionto “set aside” Gerawan farmworker votes from the ALRB-sanctioned November 2013 election to decertify the UFW. Raimondo is the attorney for the UFW union decertification petitioner, Silvia Lopez, an employee of Gerawan Farming, a Fresno County diversified tree fruit operation.
California Ag Today: The central California agricultural industry is flabbergasted this week following the California Agricultural Labor Relations Board’s decision to set aside—and not count—the ballots of 2,600 Gerawan farmworkers cast in 2013. What is your take on this decision?
Raimondo: It is unfair because from the outset, we have argued all along that this entire process has been unfair and has denied the workers their “day in court” and their due process. From the first day that Silvia Lopez walked into the ALRB office in Visalia, the greatest opposition to her filing for an election has been the ALRB itself.
We had a judge who couldn’t stay awake for the hearing. We have board members who are—shall we say at the least—biased. In the case of ALRB board member, Genevieve Shiroma, we have a person whose entire career is intertwined with the UFW’s primary paid lobbyist. There’s no way these folks can be objective in a case that has this kind of stakes in the UFW.
And this case is all about money. If they can get a contract with Gerawan, the UFW will essentially double its revenue and double its membership overnight.
California Ag Today: What is at stake for the UFW?
Raimondo: There is a clear reason why the State would end up spending $10 million on this case: They want to silence these workers and save the UFW. There is no union organizing in the field; the UFW has abandoned organizing. They’re not out there getting the workers to support and join the union.
They’re in the courtroom and in the back halls of Sacramento, making deals to take control of these workers’ future, whether the workers want it or not.
California Ag Today: In denying the ballot votes to be counted, the ALRB said it was unfair that the employer—Gerawan in this case—gave the workers a pay raise without permission of the state government or the UFW.
Raimondo: But even with this illegitimate process, the only thing that the Board actually found was that the employer violated the law—not the workers.
So the Board is going to punish the employees by destroying their ballots, like some sort of third-world dictator. What control does the farmworker have over what the company does? What can the workers do to protect their right to vote if their right to vote can be thwarted by what a third party—the company—does?
The workers’ right to vote shouldn’t be in the hands of the company, or of the union, or of anybody else. The California Constitution says that when people cast votes in our state, those votes must be counted. That’s apparently true, unless you’re a farmworker.
California Ag Today: And the agricultural industry is asking, “How can the State of California and the state ALRB get away with this?”
Raimondo: It’s appalling what they’ve done here. It really is appalling. They’ve decided that the best way to control the behavior of an employer is to punish the workers who have no control over that employer.
You know there’s no reason that, if they believe that that election was tainted, they can’t run another election. I’ve spoken to Silvia, and Silvia’s not afraid of letting the people vote. I wonder if the UFW is as brave.
Let the people vote.
California Ag Today: Is the ALRB and the UFW requesting a new vote?
Raimondo: No, they want the farmworkers to stand off to the side and be quiet while the UFW makes the deal through political moves to take their money.
California Ag Today: What’s next?
Raimondo: We are planning, on Silvia’s behalf, to file briefs in the ongoing mandatory arbitration case that is sitting before the California Supreme Court. The UFW has a brief due and the Court has not yet set a hearing date.
We’re hoping that the Supreme Court will be kind enough to give us the opportunity to speak in that case, as the Court of Appeal did. So that case still provides us with a very real chance to vindicate the workers’ rights.
In the election case that was just decided, we are planning on filing a petition for reconsideration with the Board. We think that they need to think twice before they destroy people’s ballots.
California Ag Today: The ballots have not been destroyed at this point, right?
Raimondo: We don’t know. That’s a question only the ALRB can answer.
From my view, I would hope that they were not rushing to have a bonfire today.
I would think that because these votes are precious and irreplaceable, the Board would show the restraint to withhold taking any action on the ballots until the parties have had the opportunity to pursue the various legal options that we have to challenge this decision and make sure they are doing the right thing.
The Ninth Amendment to the Constitution of the United States pays tribute to “unenumerated” rights of citizens—rights not specified—such as the right to travel, to vote, to keep personal matters private and to make important decisions about one’s health care or body, as upheld by the Supreme Court over the years. Likewise, the cherished American legal notion of “No taxation without representation,” generally attributed to James Otisembraces “actual representation” over “virtual representation.”
-Petitioner Silvia Lopez, a Gerawan farmworker, solicited and received an unlawful donation from an association of which Gerawan was a member.
The ALRB concluded these unlawful actions (a) make it impossible to know if the signatures collected represent the workers’ true sentiments and (b) created an environment, which would have made it impossible for true employee free choice when it came time to vote.
“As a result of the employer’s unlawful support and assistance,” Judge Soble, in September 2015, called for “setting aside the decertification election and dismissing the decertification petition. Given that the unlawful conduct tainted the entire decertification process, any election results would not sufficiently reflect the unrestrained free expression of the bargaining unit members.”
Thus, the UFW, voted in by Gerawan farmworkers in a runoff election in 1990, certified by the ALRB in 1992, never reached a contract to represent the farmworkers in wage negotiations with their employer, and did not collect dues from or provide services for the farmworkers, reportedly among the highest paid in the industry, effectively abandoned the Gerawan farmworkers.
When the California State Legislature amended the Agricultural Labor Relations Act in 2002 and 2011 to allow and to accelerate the process for imposed mandatory mediation and conciliation for a union contract, UFW offered a new contract proposal—after having abandoned the Gerawan farmworkers from 1995 and 2012.
Despite a lower court’s rejection of the so-called mandatory mediation and conciliation provision, the ALRB appears to have been successful in forcing UFW representation and mandatory dues collection on current Gerawan employees, after 25 years of ineffective UFW involvement that encompassed about 18 years of no involvement whatsoever—and certainly without counting their votes.
Center for Community Advocacy (CCA) and Monterey County Ag Commissioner’s Office Join Hands
A farmworker advocacy group and the agency that regulates pesticide use in Monterey County TODAY announced the establishment of a farmworker advisory committee to advise the agency and to connect field workers to resources that the agency can use to help them.
“The advisory committee gives us direct access to farmworker leaders; to their concerns and to their suggestions,” said Eric Lauritzen, the Agricultural Commissioner of the County of Monterey.
“This gives us the opportunity to engage in positive, productive conversations that will help us fulfill our obligations to the farmworker community and to the agricultural industry in general.”
Farmworker leaders trained by the Center for Community Advocacy (CCA) will compose the advisory committee.
“CCA strives to develop leadership capacity among farmworkers at the neighborhood level,” explained Juan Uranga, CCA’s executive director and lead attorney. “We use CCA’s housing, health and programs to spot, recruit and engage neighborhood leaders throughout the Salinas and Pajaro Valleys. These leaders first improve conditions in their housing units and neighborhoods. We then create venues where these neighborhood leaders can use their collective power to strengthen their families and create positive change in their communities.”
Six of these CCA-trained neighborhood leaders will comprise the advisory committee.
“We are excited about creating this opportunity,” said one of the CCA neighborhood leaders. “We are pioneers and we hope we’ll be able to work together to help our brothers and sisters who work in the fields. We had a ‘meet and greet’ session with the Commissioner and his staff and we were impressed by their willingness to work with us.”
The Committee will advise the Commissioner’s Office on policies and practices as they impact field workers in Monterey County. The advisory committee and the Agricultural Commissioner’s Office will strive to improve protocols that protect farmworkers from pesticide exposure and other protocols within the Commissioner’s jurisdiction that protect the health and safety of farmworkers. The partnership will also help disseminate information about resources and programs that the Commissioner’s Office can make available to the farmworker community.
The advisory committee comes after negotiations that led to a Statement of Purpose between CCA and the Agricultural Commissioner’s Office. The Statement describes the following functions for the committee:
1. To meet at regular intervals with the Commissioner and his/her staff to exchange information and ideas that will improve the safety of farmworkers.
2. To help disseminate safety information from the Commissioner’s Office to the farmworker community, as the need arises
3. To host annual community dialogues where farmworkers and the Commissioner’s Office meet to discuss the Commissioner’s jurisdiction over agricultural lands in Monterey County.
4. To promote a more sustainable agricultural economy in Monterey County by protecting its most critical resource: farmworkers.
Discussions about forming the committee began several years ago. Working through a rocky start, both the Commissioner’s Office and CCA saw the incredible potential in developing a working relationship.
The two agencies had never worked together. Each had questions about the other’s willingness to work cooperatively. The two agencies developed their relationship by working together on several projects including the AgKnowledge Program hosted by the Grower-Shipper Foundation and a series of small forums between the Commissioner’s Office and CCA-trained leaders. Now, both the Agricultural Commissioner’s office and CCA look forward to this joint effort.
Shawn Stevenson is the Vice President of Harlan Ranch, a third-generation family-owned and operated farm located in Fresno County. He says this is the toughest time the ranch has experienced in its history.
Stevenson spoke as a bulldozer uprooted productive trees last week. “Once we finished pushing these trees, we’re going to be out about 400 acres of the 1200 acres that’s pushed. In addition, we have another 140 acres we’re just giving enough water to barely keep alive,” said Stevenson. “The balance of our crops are receiving 66 percent of their normal water. So no matter what kind of crop that is out here on Harlan Ranch this year, it’s a very tough year as far as water goes,” he added.
Stevenson explained that the lack of water isn’t just about crops, but the people involved as well.
“There’s not enough water. It impacts the trees. It impacts our employees. Earlier this year I had my first layoffs I ever done because of lack of work, and that’s because we are pushing out so many trees. About 30 percent of our employees were let go. That was the probably the most devastating time that I’ve faced here,” said Stevenson.
He added that this reaches far more than just his farm, that the drought permeates all aspects of the industry, not just growers.
Stevenson predicted that this coming season, he’ll produce and deliver to the packing house about 25 percent of the volume of citrus produced in the past year. “That impacts not only our employees but the packers at the packing house, the people who sell the fruit, and the people we buy pesticides and fertilizers from,” Stevenson added.
With drought reaching the majority of the state, with 58 percent of California at the highest drought-level, according to a U.S. Drought Monitorreport, some farmers are thinking about the future of the industry in California.
“Now, I understand not all of Fresno and not all of California looks this bad, but imagine that we’re like the “canary in the coal mine”. This is what the future of California looks like. This kind of devastation that you see here is what our future looks like. If we continue to have no or little surface water deliveries, and as the groundwater situation continues to deteriorate. Without more surface water, without more water supplies, this is the future of the Central Valley,” said Stevenson.
“Several months ago, I looked back at what the worst case scenario would be and started making plans for that worst case scenario. And, the worst case scenario is about right on track. I don’t think a lot of people realize that is like a natural disaster, like Hurricane Katrina, or a wildfire or an earthquake, it’s just going to take a lot longer time to happen. It’s going to happen slowly—the devastation to our economy, to peoples’ lives, to whole communities,” he said.
Stevenson also mentioned communities such as Mendota and Orange Cove, which rely completely on the agriculture industry for employment, and added, “without work, this can leave entire cities in dire situations.”
“Our water infrastructure has been far out-stripped by the people in this state, so it’s time we update it and figure out how to get more water to more people in the state and try to preserve agriculture for our state, our country, and our world,” Stevenson said.