Who Safeguards California Farm Workers’ Rights? Part 3 – Bargaining in Bad Faith

What Does “Bad Faith” Mean?

By Laurie Greene, Founding Editor

Our ongoing coverage of developments among United Farm Workers (UFW), Agricultural Labor Relations Board (ALRB), Gerawan Farming, Inc. and California farm workers chronicles the continuing, increasingly complex quagmire that masquerades as protecting California farm workers’ rights.

As previously published, ALRB Administrative Law Judge William L. Schmidt issued a decision on April 14 in favor of the UFW, finding Gerawan violated labor law by negotiating a collective-bargaining agreement with UFW “in bad faith—commonly called “surface bargaining”—in the eight-month period from January 2013 through August 2013.

“Candidly,” said Anthony Raimondo, president and owner of Raimondo & Associates and attorney for Silvia Lopez, the Gerawan Farming employee and petitioner to decertify the UFW from representing Gerawan farm workers, “it is not surprising to me at all that this type of decision went against the company, because this ALRB has been in the pocket of the [UFW] … this whole time.”

“This is very much what happened to the workers in the [decertification] election case,” Raimondo said, “when the ALRB refused to count the ballots. They slammed the workers for exercising their right to free speech—to protest. They attacked the workers for engaging in actions of civil disobedience, and they denied the workers the right to vote, essentially, by refusing to count the ballots.”

On March 20, the UFW filed a claim alleging that Gerawan violated the ALRA by “proposing and insisting on” the exclusion of the farm labor contractor (FLC) employees from the terms of any collective bargaining agreement the parties might conclude.

“What the union was claiming here,” Raimondo explained, “is that Gerawan had made a contract proposal, as I understand it, that said that the employees that it receives from farm labor contractors would be excluded from the terms of the collective bargaining agreement. According to both the UFW and the Agricultural Labor Relations Board, making such a proposal alone represents “bad faith bargaining.”

Raimondo Bad Faith“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

ALRB Notice to Gerawan Employees

“When you have a law that is designed to grant farm workers their voice, and their right to self-determination, as we have with this agricultural labor relations act, it seems to me to be an abomination, when you can acknowledge that workers organize themselves to be heard, and then you deny them that voice because of something that their employer did. What control do the workers have over their employer? The workers are now responsible for things that the employer does, that cost them their right to vote?”

“There is no basis in the law for this idea that the entire process is somehow tainted in a way that invalidates the election,” Raimondo said. “If you read the Agricultural Labor Relations Act and the case law, the law is very clear that when an election is held, the only time that we reverse the outcome of an election, or ignore the outcome of the ballots, is when there has been misconduct by a party that actually affected the outcome of the election.

“You can go back to cases from the ’70s and ’80s,” Raimondo continued, “where the UFW had protestors out there at the polls, and employers complained that that affected or influenced the workers, or intimidated them in some way. Unless the employer could show that there was some actual effect on how the workers voted—that affected the outcome of the election—the election would be upheld.”

“No one in this case has ever produced the slightest shred of evidence that anything that Gerawan did or said ever affected how these workers voted, or how they felt about the union. This idea of a so-called ‘tainted election,’ is something that was invented in the last few years by ALRB judges. It doesn’t appear in the law. This whole process has been biased.”

“In fact, more than anything else, the thing that shaped how the farm workers felt about the union was the 17 years when the union wasn’t there. The union has never had to defend their absence from Gerawan employees because the ALRB never forces them to answer for it. The ALRB considers that to be irrelevant.”

“Yet, they slander Gerawan. They discredit the workers’ efforts to organize themselves. They want to discredit the entire movement that exists amongst the Gerawan workers. They deny the workers the right to vote, but they completely ignore the fact that the union failed in its most fundamental purpose, which is to represent workers.”

Featured Photo: Attorney Anthony Raimondo


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

More California Ag News

Who Safeguards California Farm Workers’ Rights? Mudslinging in the Field By Laurie Greene, Founding Editor In his 1984 Address to the Commonwealth Club of California, American labor leader and civ...
Safeguarding CA Farm Workers Rights – Part 2 Updates on California Farm Workers' Rights  By Laurie Greene, Founding Editor Our ongoing coverage of developments among United Farm Workers (UFW), ...
ALRB Discharges Farmworker Vote, Part 2 Exclusive ... Anthony Raimondo, "Let the People Vote!"   In an exclusive interview with Fresno attorney Anthony Raimondo, California Ag Today's Patrick Cav...
ALRB Discharges Farmworker Vote, Part 1 ALRB Abolishes Gerawan Farmworker Vote By Laurie Greene, Editor The Ninth Amendment to the Constitution of the United States pays tribute to "unenum...

Safeguarding CA Farm Workers Rights – Part 2

Updates on California Farm Workers’ Rights 

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.

UFW Underpaid Employees – UPDATE

As previously reported, on March 26, Monterey County Superior Court Judge Thomas Wills ruled that the UFW underpaid their own employees and mandated the UFW to pay a $1.2 million award that covers former employees, organizers, and other members of the class action suit, as well as penalties for California Labor Code Violations.

On April 27, Judge Wills added $772,000 to UFW’s court expenses for attorney fees incurred by Noland, Hamerly, Etienne & Hoss (NHEH), the law firm that represented former UFW employee Francisco Cerritos in the class action and Private Attorney General Act lawsuit on behalf of himself and other current and former UFW employees.

In issuing the additional costs to the UFW, according to a May 3 NHEH press release, Judge Wills stated that, “The Court has not placed an amount to destroy someone, and the union does serve a socially laudable purpose, but (the union) has to follow the law; and when it doesn’t do so at the expense of others and that results in drawn out, protracted and complex litigation, it cannot expect the Court to turn a blind eye to what the consequences of what that conduct are.”

Gerawan Violated Labor Law by Negotiating “in bad faith”— UPDATE

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.

In an April 17 news release, Gerawan Farming called the April 14 decision of the Administrative Law Judge “erroneous” in that Gerawan did bargain in good faith. Further, Gerawan maintains that imposed mandatory mediation and conciliation does not constitute volitional negotiations. Gerawan will appeal this decision. The following are excerpts from this press release:

This unprecedented ruling would punish an employer for failing to “negotiate” the terms of a “contract” dictated and imposed by the ALRB. This is an in-house judge who is not independent; he is an employee of the ALRB. He criticizes Gerawan’s positions and second-guesses how it participated in what was supposed to be a confidential mediation and trial-like arbitration, but he never asked the only relevant question: How does this forced contracting process resemble a “negotiation”?

The so-called “mandatory mediation and conciliation” procedures (MMC) 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.

Gerawan had no choice but to submit to this coercive process.

…The UFW did not bargain; it asked the ALRB to impose terms, based on a forced contracting process the California Court of Appeal has since ruled to be unconstitutional (and is now under review before the California Supreme Court).

To date, UFW’s unexplained 17-year disappearance from the Gerawan farm workers remains unexplained. During its absence, the UFW never negotiated a single wage increase for any Gerawan employee, nor did it attempt to bargain for a contract, collect dues, or file a single grievance on behalf of the employees. Meanwhile, Gerawan claims its workers are among the highest paid in the industry.

Yet, the ALRB’s controversial 2002 MMC provision appears to allow this AWOL union to force current Gerawan farm workers to choose between paying union dues or losing their jobs. The majority of Gerawan 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 and election process. This was the first time in the history of the ALRB that a court oversaw an ALRB election.

As yet, ballots cast by Gerawan farm workers in the sanctioned November 2013 election to decertify the UFW have never been counted, are being stored in an undisclosed and possibly an insecure location, and are the target of legal attempts by the ALRB and UFW to be destroyed.

The Court of Appeal is preparing to decide whether the ALRB may deny employees the right to choose who will represent them at the bargaining table—a seemingly basic American democratic right. The California Supreme Court is preparing to decide whether the UFW’s longstanding abandonment of Gerawan’s employees justifies this forced contracting process. California farm workers deserve a full and fair hearing on these issues.


Who Safeguards California Farm Workers’ Rights? Part 3 – Bargaining in Bad Faith


Resources:

Gerawan February 27, 2017 press release, Gerawan Farming Asks Court to Order Disclosure of Information Related to ALRB ‘Whistleblower’ Allegations: A 30-year ALRB Employee Alleges Corruption Inside ALRB.”

More California Ag News

Who Safeguards California Farm Workers’ Rights? Mudslinging in the Field By Laurie Greene, Founding Editor In his 1984 Address to the Commonwealth Club of California, American labor leader and civ...
Conflict of Interest Between ALRB and UFW ALRB and UFW Conflicts Concern Industry By Brian German, Associate Broadcaster Governor Jerry Brown's appointments to the Agricultural Labor Relat...
Clinton’s Backdoor UFW Endorsement Deal Trum... Assemblyman Patterson Comments on Clinton's UFW Endorsement vs. Farmworkers' Rights   By Laurie Greene, Editor   As reported in, "Leak...
ALRB Discharges Farmworker Vote, Part 1 ALRB Abolishes Gerawan Farmworker Vote By Laurie Greene, Editor The Ninth Amendment to the Constitution of the United States pays tribute to "unenum...

Who Safeguards California Farm Workers’ Rights?

Mudslinging in the Field

By Laurie Greene, Founding Editor

In his 1984 Address to the Commonwealth Club of California, American labor leader and civil rights activist Cesar Chavez explained that he cofounded the National Farm Workers Association, the forerunner to UFW, in 1962 “to overthrow a farm labor system in this nation which treats farm workers as if they were not important human beings.” Yet recent developments among United Farm Workers (UFW), Agricultural Labor Relations Board (ALRB), Gerawan Farming, Inc. and farm workers illustrate the continuing, increasingly complex quagmire that masquerades as protecting California farm workers’ rights.

ALRB Chairman William B. Gould IV, who resigned on January 13, wrote to Governor Jerry Brown that the Agricultural Labor Relations Act (ALRA) is irrelevant to farm workers because they are unaware of the law’s provisions, procedures and rights.

“The instances of unfair labor practice charges and invocation of the Mandatory Mediation and Conciliation Act (MMC) are few and far between,” Gould explained. “There is no union organizing which might make workers aware of the [ALRA].” He added that only one union representation petition was filed during his 3-year tenure.

Nevertheless, under Gould’s watch, the ALRB doubled both its staff and taxpayer-funded budget to harass Gerawan and its farm workers.

Remarkably, on March 26, Monterey County Superior Court Judge Thomas Wills ruled that the UFW underpaid their own employees. Consequently, UFW must pay a $1.2 million award that includes funds to plaintiff former UFW employee Francisco Cerritos and other internal organizers, sums to other members of the class action suit for pay stub violations and penalties for California Labor Code Violations.

“It’s unfortunate that a union asks for laws to be respected,” plaintiff Cerritos said, “but [the union does] not respect them.” The UFW, Cesar Chavez’s legacy, has shortchanged its own workers.

Furthermore, ALRB whistleblower Pauline Alvarez, a 30-year former ALRB field examiner, filed a retaliation lawsuit in 2015 against the ALRB, which is still pending in Sacramento Superior Court. According to a February 27 Gerawan press release, Alvarez alleges that she recommended to former ALRB chief counsel Sylvia Torres-Guillén the dismissal of cases in which the UFW failed to cooperate and provide witnesses and evidence to support its allegations. Alvarez claims Torres-Guillén directed her and other field examiners “to dredge up witnesses that would assist the UFW’s position.”

Alvarez also asserts that she protested the settlement of farm worker cases against the UFW that contained sufficient evidence to establish UFW violations of the law. Stunningly, she affirms that the ALRB refused “to notify workers of their rights to file charges against the UFW when the UFW violated the workers’ rights,” and the “ghostwriting” of the UFW legal brief by the ALRB staff.

Perhaps most astonishing, the ALRB withheld this whistleblower’s report from ongoing legal proceedings with Gerawan and Gerawan farm workers for seven months.

Most recently, 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.

To explain this decision in context, the UFW was voted in by Gerawan farmworkers in a runoff election in 1990 and certified by the ALRB in 1992. Significantly, UFW never reached a contract to represent Gerawan farm workers in wage negotiations with their employer. Neither did the UFW collect dues from or provide services for the farm workers, reportedly among the highest-paid in the industry.

The UFW effectively abandoned the Gerawan farm workers – that is, until 2012, after the California State Legislature amended the Agricultural Labor Relations Act to allow and accelerate an imposed mandatory mediation and conciliation process for union contracts. Thus, UFW offered a new contract proposal, via imposed mandatory mediation, to Gerawan farm workers.

Meanwhile, during the same time period in which Gerawan supposedly negotiated with UFW in bad faith, Gerawan farm workers were actively collecting signatures to petition the decertification of the UFW as their bargaining representative. The ballots cast in the ALRB-certified election in November 2013 have never been counted, to this day. Rather, they were sealed and stored in an undisclosed location, allegedly in ALRB custody.

Who is safeguarding California farm workers’ rights?

An ongoing conversation.



Safeguarding CA Farm Workers Rights – Part 2



Resources

Chavez, Cesar. “Address to the Commonwealth Club of California,” San Francisco, CA, November 9, 1984.

Cloud, Tal and Matt Patterson, “The ALRB and UFW: Partners in Crime,” The Fresno Bee, 4/24/17.

Gould’s January 13, 2017 Resignation Letter provided by the LA Times.

Grimes, Katy, “ALRB Spent $10 Million To Prevent Gerawan Workers’ Ballots From Being Counted,” FlashReport, March 22, 2016.

Mohan, Geoffrey, “California Farm Labor Board Chairman Quits in Anger,” LA Times, January 13, 2017, http://www.latimes.com/business/la-fi-alrb-resignation-20170112-story.html 

Sheehan,Tim, “Rising expenses, accusations of bias confront state agency in Gerawan farm-labor conflict,” Fresno Bee, July 31, 2015.

State of California Agricultural Labor Relations Board Decision And Recommended Order, signed by William L. Schmidt, ALRB Administrative Law Judge, on April 14, 2017.

Wu, Amy, “UFW ordered to pay $1.2M in wages, OT,” The Californian, March 29, 2017, updated March 31, 2017.