The whistleblower alleged earlier this year that the agency’s office of General Counsel made misleading and false statements to persuade agency board members to sue Gerawan Farming, a San Joaquin Valley company that employs 5,000 and is regarded as the nation’s largest peach grower. The state Agricultural Labor Relations Board has been trying for more than two years to throw out a vote by Gerawan farmworkers on whether to fire the United Farm Workers as their collective bargaining representative.

Gerawan Farming

The whistleblower said that “false statements, inaccuracies and vague information had been written into” a board document prepared by the general counsel, according to a staff memo presented to the board in May as members were considering whether to file a temporary restraining order against Gerawan.

“The ALRB employee stated that the (general counsel’s) declaration is vague and misleading and that there were statements made in the declaration that were untrue,” the memo says. “The ALRB employee stated that the Board would be making a decision on this (temporary restraining order) packet and they needed to know false statements were being made in the declaration.”

The Board says it launched an internal investigation into the allegations in August and has declined to comment. Reached via phone, former General Counsel Sylvia Torres-Guillen did not respond to questions by the deadline for this story. The whistleblower’s name is protected under state law and has not been released.

A staff shakeup commenced in the months following the complaint.

Torres-Guillen took a new job with Gov. Jerry Brown’s office. Two of the general counsel’s staff members also left the agency.

An ALRB official declined to comment on the departures.

Petition for Investigation

To prevent agency conflicts of interest regarding whistleblower complaints, the California Whistleblower Protection Act provides for the state auditor to receive complaints and conduct independent investigations. After learning of the whistleblower memo, Gerawan Farming petitioned California State Auditor Elaine Howle to investigate.

“An employee of the General Counsel’s office displayed great courage in notifying the Board about improper taxpayer-financed conduct by the General Counsel,” Gerawan attorney David A. Schwarz wrote in a June 2 letter to Howle. “We believe an independent investigation by your office is warranted.”

The State Auditor’s office said it is barred by law from confirming whether such a probe is taking place.

The tussle over the farmworkers’ vote on union representation stretches back to 2013.

Gerawan Background

The union had been a representative on paper but had failed to actually represent the Gerawan workers for more than 17 years, an appeals court found. The union “suddenly reappeared on the scene” in 2012.

The union demanded a contract requiring the workers to pay 3 percent of their pretax wages or lose their jobs. Workers pushed for a vote on whether to sever ties with the union.

“We don’t want a union,” said Silvia Lopez, a Gerawan worker who has helped organize union opposition. “We just want the ALRB to count our votes and honor whatever the results may be.”

In 2013 Board Chairman William B. Gould IV overruled his lawyers and ordered the vote to proceed in November of that year. Lawyers to the Board administered the vote and collected the ballots but refused to allow them to be counted, alleging that Gerawan committed unfair labor practices.

As of May 2014, the ballots were being held in a safe in a regional office of the ALRB, an official told ReasonTV.

The board’s administrative law judge later recommended that the Board dismiss the workers’ decertification effort. The ALRB is due to vote on whether to follow the judge’s recommendation.

Gould remained at loggerheads with Torres-Guillen, whose office filed repeated legal actions against Gerawan, losing case after case. In March, Gould and the other board members forced the general counsel to seek board approval before taking any further legal action.

Whistleblower Allegations

The whistleblower’s allegations surfaced two months later, as Torres-Guillen sought board approval to file a temporary restraining order against Gerawan to force the farm to rehire a pro-union worker.

In court documents, Gerawan said the worker had designed a provocation that would get him fired, which the Board’s general counsel and union could use as a pretext to allege unfair labor practices.

The staff memo, dated May 12, says that the whistleblower was well-placed to have access to detailed information on the alleged wrongdoing. “This employee was part of the investigative team and was present in the interview of [Gerawan] and false statements, inaccuracies and vague information had been written in the declaration . . . being filed with the Board.”

The Board approved the request for the temporary restraining order against Gerawan later that day. A state superior court judge quashed the Board’s motion on June 16.

Superior Court Judge Donald S. Black had harsh comments about the Board in his ruling, which appeared to validate the whistleblower’s allegations. In his decision, Black stated, “given the deficiencies in the investigation conducted by the ALRB, the apparent embroilment of the ALRB’s staff in the investigation and its involvement in the termination of [the worker], and the strong evidence disputing the petitioner’s [ALRB’s] claim that [the worker] was terminated for his union activities, the court concludes that the petitioner has not shown reasonable cause to believe an unfair labor practice has been committed” on Gerawan’s part.

Departures from the Board

Meanwhile, top attorneys in the Board’s General Counsel office were exiting. Torres-Guillen, who had been appointed by Gov. Brown in 2011, took a job in his office.

“I will be leaving my position as General Counsel effective July 1, 2015,” her June 13 resignation letter states.

Soon after, Torres-Guillen’s top acolytes began to leave the agency. The first to go was Salinas regional director Alegria de la Cruz, whose long affiliation with the United Farm Workers was a source of controversy. Then Silas Shawver, the Visalia regional director who had taken possession of the uncounted Gerawan worker ballots, resigned without public explanation.

As the whistleblower controversy roiled the Board offices, the Board’s executive secretary, J. Antonio Barbosa, took a leave of absence. While Barbosa remains on staff with the same title, Special Board Counsel Paul M. Starkey was named acting executive secretary. Barbosa did not respond to requests for comment.

The Board has refused to answer questions about any relationship between the whistleblower’s allegations and the departures of the general counsel and two of her most fervently pro-union deputies.

Gould and the board “will not comment on matters that are pending before the Board or may come up before the Board,” Starkey wrote in an Oct. 30 statement to the American Media Institute.

Starkey said the Board is conducting its own internal probe about the whistleblower.

“In August of this year, the Board commenced an investigation, which is pending completion,” he said. “Accordingly, the Board will not comment.”

Asked about the apparent purge in the general counsel’s office, Starkey passed the buck to Brown and claimed legal privilege. Torres-Guillen’s abrupt departure, Starkey said, “concerns matters within the purview of the Governor’s Office.”

Brown’s office did not return a call for comment. Starkey also refused to comment on the departures of de la Cruz and Shawver, saying the question “concerns personnel matters, upon which the Board does not comment.”

By law, the Board must be impartial between employers and unions in defending the rights of farmworkers.

To the largely Mexico-born workers, the Board’s silence reminds them of the system they left behind.

“In Mexico, the labor unions are part of the ruling political party, which controls the government bureaucracy,” Lopez said. “With the ALRB, it’s no different in California, where the political elites serve as the fixers for the UFW. It’s not supposed to be that way here in America.”

United Farm Workers spokeswoman Luz Peña did not respond to multiple requests for comment.

Secretive ALRB Refuses to Answer Questions

The American Media Institute emailed 11 sets of questions to Agricultural Labor Relations Board Chairman William B. Gould IV and the other board members on Oct. 29. Board Acting Executive Secretary and Special Board Counsel Paul M. Starkey replied in an email and letter on Oct. 30. What follows are the questions, and Starkey’s complete answers to each.

Question: “1. Why did the Board ignore the whistleblower and approve the general counsel’s request for a TRO [temporary restraining order against Gerawan Farming]?  2. Did the Board attempt to inform the Court that it had reason to believe that ALRB general counsel attorneys provided false information in order to secure Board approval of the TRO?”

 

Answer: “Turning to your media questions concerning ‘Whistleblower in ALRB,’ questions 1 and 2, relating to TRO litigation, are the subject of the pending case in Gerawan Farming, Inc., 2015-CE-011-VIS.”

 

Q: “3. What internal investigation did the Board conduct about the falsification of information from the General Counsel’s office to the Board?  4. What wrongdoing did the Board uncover?”

 

A: “Questions 3 and 4, relating to the Board’s investigation, also are the subject of that pending case. Further, in August of this year, the Board commenced an investigation, which is pending completion. Accordingly, the Board will not comment.”

 

Q: “5. Did Governor Brown remove Ms. Torres-Guillen as general counsel because of that wrongdoing?”

 

A: “Question 5 concerns matters within the purview of the Governor’s Office. See enclosed print out.”

 

Q: “6. Did Ms. Alegria de la Cruz and Mr. [Silas] Shawver resign because of that wrongdoing?”

 

A: “Question 6 concerns personnel matters, upon which the Board does not comment.”

 

Q: “7. Does the Board have probable cause to believe that any laws were broken? If so, which laws might have been broken? If not, why not? Has the board requested an independent outside criminal investigation to remove all doubt? If not, why not?  8. Even if no laws were broken, do you believe that Ms. Torres-Guillen, Ms. de la Cruz, and Mr. Shawver acted ethically as members of the bar?”

 

A: “Questions 7 and 8 are covered by the response to questions 3 and 4.”

 

Q: “9. Has the ALRB made any amends to Gerawan for seeking the falsely procured TRO?”

 

A: “Question 9 is covered in the response to questions 1 and 2.”

 

Q: “10. Why does the ALRB General Counsel’s office continue to employ at least one attorney with a documented record as a biased union activist, who was part of the disgraced faction that was removed over the summer?”

 

A: “Question 10 is directed to the [Board’s] General Counsel, not the Board.”

 

Q: “11. What is the Board . . . doing to investigate and punish any past or continued wrongdoing?”

 

A: “Question 11 is covered by the response to questions 3 and 4. For the reasons explained above, the Board declines comment.”

****

J Michael Waller is an investigative journalist with the American Media Institute. 

Gerawan Farming

In a turnabout for California’s storied history of migrant labor, Latino field hands are fighting to get the United Farm Workers, the union that carries on the legacy of founder Cesar Chavez, out of their lives and pockets.

If the workers prevail, they would deprive the UFW of thousands of members, not to mention a bounty of union dues, and send a powerful anti-union message nationwide. 

But they could well lose. The union appears to have the support of putatively impartial state labor referees who have not hidden their pro-union sympathies. And with more than half of its official membership at stake in the dispute, the union has plenty of incentive to fight after decades of decline.

At issue is 2013 balloting aimed at decertifying the union as the legal representative of the roughly 5,000 laborers at Gerawan Farming, the nation’s largest peach grower.

An administrative judge for the state’s Agricultural Labor Relations Board (ALRB) is expected to issue a decision any day on whether to count the ballots, which have been locked in an agency safe, or destroy them.

The union says vote tampering and intimidation spoiled the ballots.

The state board, mandated to safeguard farmworker rights, investigated the claims but found no substantiating evidence on which to act. Even so, the board’s Office of General Counsel has led a legal battle to destroy the ballots instead of counting them.

“It’s California’s version of the old South’s Jim Crow laws, to keep uppity Latino farmworkers in their place,” says Silvia Lopez, 39, a Mexican-born field laborer who is fighting to save and count each vote. Lopez was brought to California by her parents when she was 3. In recent years she has gathered petition signatures and held meetings to protect the farmworkers’ right to decide for themselves whether to be represented by a union.

Sylvia Lopez

“We just want the right to choose. We make more money and have better benefits without a union, by working with our employer,” Lopez says. The union has alleged that Lopez is a tool of her employer, but courts have found no merit to the accusation.

By law, the Agricultural Labor Relations Board must be impartial between employers and unions in defending the rights of farmworkers. State judges who have presided over hearings and civil trials in the dispute have been critical of the board. A superior court judge criticized the board in 2013 for being “in cahoots” with the union. Last month, a three-judge appeals court found that the union had abandoned the Gerawan workers for more than 17 years, failing to represent them, until it “suddenly reappeared on the scene” in 2012.

After its return, the union demanded a contract requiring the workers to pay 3 percent of their pretax wages or lose their jobs. The union, Lopez said, offered nothing in return.

Her main complaint with the union, which many of her colleagues shared, is that it did nothing for them in the nearly two decades after their predecessors voted to certify the UFW as their collective bargaining representative.

Located in the San Joaquin Valley, near Fresno, Gerawan has about 9,000 acres under cultivation in three principal locations. The workers pick and pack apricots, grapes, nectarines, peaches and plums.

Gerawan and Lopez say that the base pay for field workers is $11 an hour, or $2 an hour more than the California minimum wage. More highly skilled laborers can earn twice as much. Lopez says that workers at three nearby farms who are represented by the UFW earn less than minimum wage after the union deducts its dues.

Lopez and her daughters circulated petitions to ask the labor relations board to host a vote among Gerawan farmworkers to decertify the absentee union as their legal representative.

Top lawyer built pro-union team

The board’s top lawyer, Sylvia Torres-Guillen, has replaced long-serving civil service attorneys with activists loyal to the union in the nearly four years since she was appointed general counsel by Gov. Jerry Brown.

She also moved to take advantage of a 2003 law empowering the board to force union contracts on employers and employees if they are unable through mediation to come to an agreement.

“The state and the union are working together to force the union on us,” says Lopez. A three-judge state appeals court unanimously agreed in May, and struck down that provision of the law as unconstitutional. Torres-Guillen’s office said it plans to appeal.

Gerawan attorneys and farmworkers who have been involved with litigation against the ALRB say they expect the administrative judge, Mark Soble, to order the ballots destroyed. Gerawan’s attorney said the company is expecting a decision at any time.

Soble declined to comment.

Transcripts show that Soble presided over a series of hearings about the Gerawan case, in which Torres-Guillen’s attorneys and the union attorney seemed to act as co-prosecutors against Gerawan Farming employers and anti-union employees.

Searches of social network sites show board attorneys to be die-hard union supporters. Facebook pages feature photos of board lawyers wearing union badges and shirts and participating in the union’s street protects. Others show board lawyers, including Torres-Guillen, hugging the union lawyer and a union organizer in a thumbs-up celebration.

Silas Shawver is the board’s regional director in Visalia, near Fresno, and has been Torres-Guillen’s point man on the Gerawan dispute. Asked about a photo showing him wearing a union shirt, Shawver said, “If that thing exists, it was a long time before I ever worked for the ALRB, and I don’t know that I ever had a UFW T-shirt.”

Asked whether the board’s attorneys can be impartial, Shawver said, “What do you mean by impartiality?”

In 2013, according to court records, Shawver alleged that hundreds of signatures on petitions for a vote on the union were forgeries and that Gerawan had coerced the workers into signing. Lopez came back with more than 2,900 signatures. By this time, both Gerawan and farmworker Lupe Garcia had filed separate lawsuits against the board to prevent it from imposing a union contract on them.

Shawver’s conduct prompted California Superior Court Judge Jeffrey Y. Hamilton Jr., to call the board’s motives into question.“It almost seems like it’s in cahoots” with the union, Hamilton told Shawver at an August 2013 hearing. He chided the board lawyer: “You have a responsibility, unlike an advocate for one side, to bring out all of the evidence, not just evidence that is supportive of the union. And it appears to the Court that’s what you’re doing.”

Asked if the “union activists who have been hired as ALRB attorneys” present a conflict of interest that might compromise the impartiality of the board, Torres-Guillen said, “Oh, I don’t see that at all.”

Court records and news reports from the summer and fall of 2013 show that board lawyers threw up roadblocks to prevent the decertification vote. When the three-person ALRB board in Sacramento overruled its lawyers and permitted the vote to take place in November 2013, Lopez and others say, Shawver supervised the board staffers to herd 600 workers aside on voting day. They also prevented some workers from casting ballots after the union alleged that the “real” workers had been fired and Gerawan had hired new workers under false identities to tilt the outcome.

UFW logo

After the election, the board collected the ballots but refused to count the votes. Its lawyers have sought since then to destroy the ballots. The board’s proposed budget shows that the agency asked for more money through 2016 for its work on the Gerawan case. The board will have spent $7.5 million through 2016 to investigate and litigate the case, equal to about $3,000 per ballot cast, according to an analysis by the Sacramento-based firm MB Public Affairs commissioned by Gerawan Farming.

At its peak in the 1960s under Chavez, the union claimed more than 50,000 members. By 2012, the union had 3,329 active members plus 1,052 retired members, according to its annual report to the U.S. Department of Labor.

“The UFW can double its membership overnight if the ALRB counts the employees’ ballots and find that a majority want the union,” said Dan Gerawan, co-owner of Gerawan Farming. “I suspect both believe the union will lose that vote, which is why they are trying to destroy the ballots.”

Without a contract, Gerawan workers did not pay dues to the union, and their membership was not reflected in the official numbers the union reported to the U.S. Department of Labor. However, in 2013 the union reported a spike to 9,076 active and 1,130 retired members, without a commensurate increase in revenue from dues, leading to speculation that the union was trying to claim Gerawan workers on its rolls.

After Soble issues a recommendation, the matter goes to the full board.

The board, however, is no rubber stamp. Gov. Brown surprised supporters and opponents alike last year when he vetoed legislation that would have given the general counsel more power. He also named an internationally-renowned labor lawyer and scholar, William B. Gould IV, to chair the board. Previously, Gould served as chairman of the National Labor Relations Board in Washington.

Gould, in decades of academic and legal writings, has supported the right of workers to vote on whether they want to be represented by a union. That principle puts the 79-year-old Gould, at the twilight of a distinguished labor career, at loggerheads with the activist attorneys he leads but does not command.

Earlier this year, Gould led the three-member board to limit some of the general counsel’s expanding powers, requiring “case specific authorization” from the board before seeking injunctions against allegedly unfair labor practices.

ALRB board members did not respond to requests for comment. The board’s Acting Executive Secretary, Paul M. Starkey, said it is the board’s policy not to comment “on pending matters before the board for decision or matters in litigation.”

J Michael Waller is an investigative journalist with the American Media Institute.