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

ALRB Rejects Gerawan’s Motion to Disqualify Isadore Hall III

By Laurie Greene, Founding Editor

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

In short, after a series of legal volleys between Gerawan Farming and ALRB this past spring, the ALRB, again, refused to disqualify ALRB Member Isadore Hall III, former state senator (35th District, D-Compton), from participating in specific Gerawan legal cases on the basis of alleged pro-UFW bias.

In legal terms, ALRB issued an administrative order on June 9, 2017, denying Gerawan Farming, Inc.’s May 23, 2017 motion for reconsideration of request to disqualify Isadore Hall III from participating in specific case deliberations and decisions regarding Gerawan Farming, Inc.  Likewise, ALRB also denied Gerawan’s request for a stay of the proceedings pending resolution of Mr. Hall’s participation.

BACKGROUND

Condensed Early History

The UFW was certified as the bargaining representative for Gerawan’s agricultural employees in July 1992, after a 1990 election. After one preliminary negotiating session in February 1995, the UFW disappeared for almost two decades, having never collected dues, negotiated for a wage increase, attempted to bargain for a contract or filed a single grievance on behalf of Gerawan employees during their abandonment, according to an April 17, 2017, Gerawan news release.

In 2013, the UFW  invoked a controversial 2002 Mandatory Mediation and Conciliation (MMC) law that allows the ALRB to draft and impose a “contract” on the employer and employees against their will. UFW also proposed that Gerawan employees pay 3% of their wages to the UFW or be fired. Fewer than 1% of the current Gerawan workforce voted in the 1990 election, and many current employees were not even born when that election took place.

California Gerawan farm workers harvesting tree fruit
California farm workers harvesting tree fruit

The majority of employees twice asked ALRB for an election to decertify the UFW. At the ALRB’s request, the Fresno Superior Court intervened and supervised the decertification petition processthe first time in ALRB history that a court oversaw an ALRB election.

On November 5, 2013, thousands of Gerawan workers cast secret ballots to decide whether to decertify the UFW. The ALRB impounded the ballots, which remain uncounted to this date in an undisclosed (possibly insecure) location.

Current History – 2017

Appointment of Isadore Hall III to ALRB

In his January 13, 2017, letter of resignation to Governor Brown as ALRB Chairman, William B. Gould IV stated that the Agricultural Labor Relations Act [ALRA or “Act”] “is now irrelevant to farm workers, in particular, because, for the most part, they are not aware of the provisions, procedures, and rights contained in the law.”

“I have pointed out [in several speeches] that only one representation petition has been filed during the 34 months of my Chairmanship,” Gould continued. “More than 99% of the agricultural workforce appears to be unrepresented and the instances of unfair labor practice charges and invocation of the Mandatory Mediation and Conciliation Act (MMC) are few and far between.”

William Gould, IV, former ALRB chair
William Gould, IV, former ALRB chair

“Regrettably, though the Board adopted the proposed rule 14 months ago for worker education about the Act’s features, the rule has languished in the bowels of state bureaucracy for the past 14 months. My view is that this long delay is substantially attributable to the fact that the ALRB, unlike the NLRB, is not a standalone, independent administrative agency.”

Also on January 13, 2017, Governor Brown designated Genevieve Shiroma as Chair of the ALRB, where she had served as a member since 1999, an appointment that did not require Senate confirmation. Likewise, Governor Brown appointed Isadore Hall III, and the California Senate confirmed his appointment, despite Hall’s public history of pro-UFW activity and endorsements and allegations that he threatened farmers who opposed his nomination.

Agricultural Community Responds to Hall’s Appointment

In Farmers Deserve a Balanced Ag Labor Board,”a letter published in the Sacramento Bee on February 23, 2017 by George Radanovich, (president of the California Fresh Fruit Association), Joel Nelsen (president of California Citrus Mutual) and Tom Nassif (president of Western Growers Association), the authors explained, “The purpose of the Agricultural Labor Relations Act (ALRA) was to bring about a sense of justice and fair play during a tumultuous time in the farm fields of California in 1975.”

“When the ALRB was formed in 1975,” the authors stated, “it was with the understanding that membership would consist of two members representing labor, two representing agriculture, and one public or neutral member. Instead, the board has become one of the most contentious, lopsided administrative boards ever assembled by the state of California. The recent resignation of Chairman William Gould IV and his prompt replacement by former state Sen. Isadore Hall, D- Compton, only further illustrate this imbalance.”

Tree fruit farm worker in California.
Tree fruit farm worker in California.

In place of conducting outreach to all affected stakeholders, including agriculture, “in a matter of 48 hours, Gov. Jerry Brown appointed a termed-out state senator and failed congressional candidate who has no labor law background whatsoever but with strong ties to the UFW.”

Hall’s UFW ties were listed as “financial support by the UFW, personal ties with UFW President Arturo Rodriguez and raising the union banner while marching with the UFW. While a state senator, Hall was the principal co-author of two UFW-sponsored bills and voted in favor of two other bills that would make it easier to force ALRB-written contracts on farmers and workers. These close ties should disqualify him from the position where he will judge UFW issues almost daily.”

“There is no denying that the ALRB’S recent decision to prevent the disclosure of the November 2013 election results, from the high-profile decertification fiasco of Gerawan Farming of Fresno was to cover up the fact that most farm workers don’t want to unionize.”

“Today, California farm workers are protected by the strictest labor laws in the nation, and they decline to unionize because they value a good employer over a union. Brown should recognize this and rewrite the ALRA to guarantee employer representation on the board. California farmers deserve better than a lopsided Agricultural Labor Relations Board.”

ALRB Decides Gerawan Negotiated “in Bad Faith”

On April 14, 2017, ALRB Administrative Law Judge (ALJ) William Schmidt issued an interim decision finding that Gerawan committed an unfair labor practice by refusing to negotiate “in good faith” with the UFW. Essentially Judge Schmidt contended, “Gerawan engaged in collective bargaining negotiations with the UFW with no intention of reaching an agreement covering the wages, hours, and other terms and conditions of employment for the employees in the collective bargaining unit.”

According to David Schwarz, counsel for Gerawan Farming, “This decision was riddled with legal and factual errors. The most glaring of these errors was the fact that ALJ Schmidt found that Gerawan failed to negotiate when it had already been ordered to [follow] a process [MMC] where traditional give-and-take negotiation had been replaced by government-imposed forced contracting.”

According to an April 17, 2017 Gerawan newss release, “The so-called MMC procedures are neither consensual nor voluntary. It is forced contracting. The ALRB tells the employer what wages to pay, what employees to hire, or fire, or promote, and what portion of the employees’ salary will be turned over to the union. The employer may not opt out and the employees are not given the choice to ratify or reject the so-called contract that will be forced on them, even if there are provisions detrimental to them.”

“There is a fundamental – and constitutional – difference between consensual bargaining and state-compelled contracting,” said Dan Gerawan, president and CEO of Gerawan Farming. “The ALJ obliterates this distinction.”

Gerawan added that MMC does not facilitate negotiations. Rather, it is an imposed agreement by force of law and Gerawan was compelled to abide by it.

Schwarz explained, “Per the ALRB’s own regulations, MMC kicks in only after the Board has certified that further negotiation between the parties would be futile.”

At that point, according to Schwarz, a government-appointed arbitrator steps in, hears evidence from each party, drafts a CBA (or collective bargaining agreement), which the Board approves and imposes on the parties by force of law. Since there is no place for negotiation in this process, Schwarz contends there is no logical or legal basis for ALJ Schmidt to conclude that Gerawan’s conduct during MMC could justify his finding that Gerawan failed to negotiate in good faith with the UFW.

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

Isadore Hall III UFW flag ALRB
Isadore Hall III with UFW flag prior to his appointment to the ALRB.

On April 28, 2017, Gerawan Farming, Inc. filed a Motion to Disqualify Board Member Isadore Hall from participating in the deliberations in the case above based on documented “sweeping prejudicial” statements Member Hall made against Gerawan.

“Our DQ motion was very compelling,” Dan Gerawan said. “Hall marched specifically against us and our employees and received an endorsement from UFW in return. It’s ridiculous that he was assigned to a job where 90% of his work will be to adjudicate UFW-related issues, and half of his work will be Gerawan-related.”

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

On May 18, 2017, the ALRB rejected Gerawan’s motions to disqualify ALRB member Isadore Hall and to request a stay in order to resolve the motion to disqualify.

“Hall’s disqualification would leave the ALRB without a current valid quorum of three members to hear the case,” Schwarz said, “thus lacking the statutory power to act. The Governor can resolve this issue by simply doing what the ALRA requires him to do –  appoint two additional ALRB members, thus bringing the Board to its statutorily-requisite composition, which is five members.”

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

On May 23, 2017, Gerawan filed a Motion for Reconsideration of the Board’s Order Denying Motion to Disqualify Member Hall, repeating its request for a stay of the proceedings pending resolution of the motion.

“Gerawan filed this motion for reconsideration both to correct serious legal errors in the Board’s initial decision,” Schwarz said, “and to bring to light new evidence regarding the identity of an individual who participated in a conversation with Mr. Hall in which Mr. Hall stated that he was going to ‘get’ Gerawan once he was a member of the Board. This individual, Mr. Shaun Ramirez, provided a declaration in support of Gerawan’s first motion to disqualify Member Hall. However, Mr. Ramirez and his employer, concerned that the Board (or Mr. Hall) might retaliate against them for speaking out, initially asked that Mr. Ramirez’s identity remain confidential.”

“The Board initially refused to consider Mr. Ramirez’s declaration – precisely because he asked that Gerawan not reveal his name for fear of retaliation. After the Board denied Gerawan’s motion to disqualify Mr. Hall, Mr. Ramirez allowed Gerawan to file an unredacted version of his declaration with this motion for reconsideration. This declaration set out in great detail Mr. Ramirez’s interactions with Mr. Hall and Mr. Hall’s statement, in reference to Gerawan, ‘I am going to get their ass.’”

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

On June 9, 2017, ALRB denied both Gerawan’s motion for reconsideration to disqualify Board Member Hall from deliberations in the case and Gerawan’s request for reconsideration of an immediate stay of the proceedings.

“As discussed,” Schwarz said, “Gerawan filed a motion for reconsideration with an unredacted version of Mr. Ramirez’s declaration. The Board again refused to consider Mr. Ramirez’s detailed account of his conversation with Member Hall. The Board took the position that it was under no requirement to consider such evidence in a motion for reconsideration, as the declaration was not ‘newly discovered’ or ‘previously unavailable.’ The Board discounted Mr. Ramirez’s reasons for desiring anonymity, and disregarded the merits of his sworn statement, without explaining why the revelation of his identity did not require it to reconsider the basis [the anonymity of the declarant] for disregarding it in the first place.”

“Of equal significance is that Mr. Hall participated in deciding his own disqualification motion,”  Schwarz added. “This violates a basic rule of due process and long-standing Board precedent that a member accused of bias cannot decide his own disqualification motion. Instead, Member Hall offered his own statement that he was not biased against Gerawan, albeit without denying or affirming the truth of Mr. Ramirez’s declaration.”

“Unlike Mr. Ramirez,” said Schwarz, “Member Hall’s ‘concurring’ opinion was not under oath.”

In the official ALRB Decision, Hall wrote, “I reject the claims of bias leveled against me by Gerawan and decline to recuse myself from participation in the deliberations in this case.”

Next Steps

In reaction to the Board’s refusal to disqualify Member Hall, Schwarz said, 
“Gerawan will appeal the Board’s decision. We are confident that this unprecedented and unconstitutional decision will not stand.”


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

Who Safeguards CA Farm Workers’ Rights? Part 5


Resources

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

Mandatory Mediation and Conciliation


 

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Farmers Leave California Due to Regs

Nassif Warns that More Farmers Will Leave Highly Regulated California

By Brian German, Associate Broadcaster

 

Earlier this summer, the California legislature voted down Assembly Bill 2757 which would have ended the 10-hour workday for farmworkers and eliminated their opportunity for overtime pay. Now, the bill’s author, Assemblywoman Lorena Gonzalez, is trying again with Assembly Bill 1066.

Tom Nassif, who has presided as president and CEO of Western Growers for the past 14 years, described this bill as a major cause for concern for farmers. “That’s very top-of-mind,” said Nassif. “Many of our members tell us the increase in minimum wage is onerous and the overtime bill is even worse; it will be more expensive and all it’s going to do is drive more producers out of production or into foreign countries,” he said.
Western Growers logoFrom his many years as a labor attorney working with multiple growers and shippers throughout the state, Nassif has a clear understanding of how this type of bill would adversely affect the farmworkers it’s being touted as helping. “When you think about the fact that you’re going to be taking ground out of production or moving production somewhere else, eventually you’re not going to have enough jobs. Additionally, people are starting to move into crops that don’t require so much labor, like tree nuts, which are mechanized,” noted Nassif.

Nassif explained that over the past few years, the overall cost of farming in California has risen more than 30 percent resulting from the climbing cost of water, various types of government regulation, and increased wages. “If AB 1066 were passed and put into effect, farmers will do what they need to do in order to survive, including limiting worker hours and hiring additional workers to make up the difference, or simply moving the entire farming operation to another state that’s more cost-effective.”

Nassif noted he has already heard of some farmers who are not waiting for costs to become more expensive and have already left California. “No question; it has been happening for a number of years,” said Nassif, adding the number of departures is growing all the time.

“You cannot put up with the high cost of production and micromanagement by the government, whether it’s the state government or the federal government or even regional governments, and have an effective economic model for farming,” Nassif stated. “Pretty soon that is just going to drive everybody away. They can produce much more cheaply in foreign countries.”

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Western Growers Association has Mixed Feelings on Recent Supreme Court DACA Decision

By Patrick Cavanaugh, Farm News Director

The 4-4 ruling on immigration reform last month by the Supreme Court of the United State’s (SCOTUS) affirmed the lower court’s injunction against President Obama’s executive order, which would have granted deportation deferrals and temporary legal work status to about five million undocumented immigrants. Tom Nassif, president and CEO of Western Growers Association (WGA), has been vocal about the need to establish some type of immigration reform.

Nassif compared the recent SCOTUS ruling to what happened when a 2013 U.S. Senate-endorsed bill that supported a pathway to citizenship was never passed in the U.S. House of Representatives. “The House did not want a pathway to citizenship,” said Nassif. “They were not even sure if they wanted a pathway to legalization. Most Republicans did not even want a border security bill in the House coming to the floor for a vote because they didn’t want any immigration reform—whatsoever.”

Western Growers logoNassif said, “The House was part of that Send-them-home! crowd that considered anything you did—even if it was putting them on probation—as amnesty. It is interesting that with the House doing nothing about immigration, what we have today is amnesty, because we’re not doing anything about it.”

Nassif expressed mixed feelings about the SCOTUS decision. “In a way, it disappointed us; in a way, it didn’t. It didn’t disappoint us because there was no requirement that people working in agriculture who might qualify for this Deferred Action For Childhood Arrivals (DACA) or Deferred Action for Parents of Americans (DAPA) would actually remain working in agriculture.”

To get a pathway under the Senate bill, farmworkers would have to stay in agriculture for a certain number of years, but they could eventually work in other industries. So if you have a choice of working in any industry, why would you go to work on the farm? But, in this instance, you would adversely affect other American jobs,” said Nassif.

Nassif said the motivation of the Obama administration is understandable due to the inability of Congress to compromise on immigration reform, yet Nassif maintains the Immigration Reform should not be done with Executive Orders as the President has done. Instead, Nassif stressed that Congress should take up Immigration Reform and pass it.

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Tom Nassif, president and CEO of Western Growers Association is frustrated with the lack of immigration reform. “In 2013, we finally got a bill passed in the United States Senate. The reason we got it passed in the Senate is because we supported the pathway to citizenship; the other things we could work out,” Nassif said.

Tom Nassif
Tom Nassif, president and CEO of Western Growers Association

“However, in the United States House of Representatives,” Nassif continued, “they didn’t want a pathway to citizenship. They weren’t even sure if they wanted a pathway to legalization,” he noted.

“Most people didn’t even want a border security bill coming to the floor for a vote in the House because they didn’t want any immigration reform—whatsoever,” said Nassif. “They were part of that ‘send them home crowd.’ Anything you did, even if it was putting them on probation or fining themwhatever we didwas still considered amnesty. That is not amnesty. What we have today is amnesty because we’re not doing anything about it,” he argued.

Nassif had a mixed opinion on the recent Supreme Court of the United States’ 4-4 ruling against President Obama regarding his expansion of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). “In a way, it disappointed us; in a way, it didn’t,” Nassif commented.

Western Growers logo“The reason it didn’t disappoint us is because there was no requirement that the people working in agriculture who might qualify for DACA or DAPA would remain in agriculture. Under the Senate bill, to get a pathway, you had to stay in agriculture for a certain number of years. In this case, they could have gone to work in any industry. If you have the choice of working in industry, why would you work on the farm? The choice adds adversity and affects other American jobs,” said Nassif.

Immigration reform should not be done by executive order, according to Nassif, as President Obama was trying to do. “It should be done by the legislature. They have the responsibility and the duty to pass immigration reform,” he said.

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Nearly 200 professionals in the horticultural industry from across the food chain and the value chain, and from Europe and North, Central and South America, gathered this week at the Bayer CropScience Horticulture Symposium in Puerto Vallarta, Mexico. Attendees were treated to an inspirational mix of lectures, panel discussions, as well as an interactive poster session, all incorporating forward-thinking sustainable practices into contemporary agriculture. Among the crops discussed were tomatoes, citrus, grapes, potatoes, bananas.

Rob Schrick, strategic management lead, Bayer CropScience Horticulture, based in Research Triangle Park, North Carolina, said the event was the company’s second in a series of horticulture symposiums focused on international collaboration and problem-solving. “This is about bringing the best and brightest from across our industry,” said Schrick, “from influencers and universities to industry members like ourselves and the media. It’s about getting these creative minds together and discussing solutions. The solutions may not come from the symposium itself, but the connections that are made—you don’t know what will yield from those relationships.”

Jim Chambers, director of marketing, Bayer CropScience Food Production, said the Horticulture Symposium was all about sharing information on best management practices. “Bayer is a leader in the crop protection business within the horticultural space around the world, and this is a real opportunity to bring all of us within horticulture across the food chain and the value chain to talk, from the grower, to the processor, and to the consumer. It is a wonderful opportunity to work together to solve some very difficult challenges.”

“And, vivid to all attendees, was that members of the fruit and vegetable industry throughout the Americas have similar challenges to overcome,” noted Chambers. “It was very interesting; the issues that we talk and hear about in the specialty crop states such as California, Florida and Texas, are very much the same issues that people, for example in Mexico, Brazil, Argentina, or Central America, are facing. These issues do not go across just states or counties; they reach across the globe in solving these problems,” Chambers said.

Among the speakers were growers, commodity specialists from the industry and academia, and experts on sustainability practices, professionals on Maximum Residue Levels (MRLs), Bayer CropScience specialists and major agricultural association leaders such as Tom Nassif, ceo, Western Growers Association (WGA) and Dana Merrill, president, Mesa Vineyard Management Inc.

Bayer is a global enterprise with core competencies in the Life Science fields of health care and agriculture. Bayer CropScience, the subgroup of Bayer AG responsible for the agricultural business, is one of the world’s leading innovative crop science companies in the areas of seeds, crop protection and non-agricultural pest control. The company offers an outstanding range of products including high value seeds, innovative crop protection solutions based on chemical and biological modes of action as well as an extensive service backup for modern, sustainable agriculture. 

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Source: www.freshfruitportal.com

Western Growers has praised a deal struck by California lawmakers that would see a US $7.5 billion package to bolster the state’s water supply and infrastructure.

California residents will now vote on the matter in November.

In a statement, Western Growers president and CEO Tom Nassif said he was delighted with the passage of legislation by the California Assembly and Senate, which includes US$2.7 billion for water storage.

“We are especially pleased that the storage portion of this legislation is a continuous appropriation preventing the legislature from withholding funding. Passage of this legislation is an essential first step in adding capacity to our state’s existing storage infrastructure,” Nassif said.

“This legislation replaces the existing bond slated for this November’s statewide ballot. Our Association will work diligently with Governor Jerry Brown to garner support for the initiative.”

California is currently facing one of the worst droughts in decades, and many in the industry have raised serious concerns over the unsustainable rate at which the water supplies are being depleted.

Nassif also commended members of both parties who came together to support compromise legislation he described as ‘critical’ not only for growers but for all of the state’s residents and water users.

“Western Growers particularly appreciates Governor Brown’s leadership on this issue. We look forward to his support of this measure as we work together to gain voter approval for the initiative this November,” he said.

California Citrus Mutual president Joel Nelsen added his praise to the legislation that he said met the needs of all the state’s regions.

“I believe we have turned a corner in our State in which we quit destroying the land and the people that provide the world food and fiber,” he said in a press release.

“I applaud the hard work and dedication of Assembly Members Connie Conway and Henry Perea and Senator Andy Vidak in leading the legislature in an effort to strengthen a bond proposal that we feel was previously incomplete.

“To the Governor’s credit he and his team listened to stakeholders and came a long way from the $2 Billion for storage that was included in his original proposal to a more comprehensive package that addresses our Valley and the state’s needs for a real solution.”

He added the state now had more money for storage, a path towards cross valley connectors, and funding for ground water cleanup in disadvantaged communities.

“The previous proposals contained less money, no pathway for the connector, and in reality made too few happy,” Nelsen said.

“This is a positive step forward and I believe the Speaker and the Governor when they say we will work together to achieve all our goals.”

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