Court OKs constitutional challenge to new law affecting farm industry

Good morning. TGIT. Sorry we went dark yesterday — scheduling conflict. However, had we not been dark, we would have told you about how a federal appeals court last week had taken the highly unusual step of finding a U.S. constitutional cause of action in a challenge to a California state law, which is the latest wrinkle in a long-running and bitter dispute between a farm workers’ union and two large Central Valley fruit growers.

The California Legislature approved a law last year that was designed to protect the state’s businesses after two court decisions left them open to unforeseen liabilities regarding the minimum wage.

The measure, Assembly Bill 1513, which passed by solid majorities, was a sign of concern about broad economic harm if companies who had acted in good faith were forced to pay various fines for some commonly accepted payment practices.

This legislative overhaul of the state’s wage-and-hour law waived all penalties if, by this Thursday, the companies paid their piece-rate workers back wages for any unpaid rest periods.

The legislation would have been largely noncontroversial, except that it included carve-outs for two Fresno-based fruit growers – Fowler Packing Co. and Gerawan Farming.

In other words, the law apparently applied to every California business, except for these particular companies, both of which had run afoul of a union.

Check CalWatchdog to find out what happens next. 

In other news: 

• “Sharing in a new emerging consensus in favor of substantial infrastructure spending, California Democrats have teed up the policy for early action in 2017, triggering renewed debate over the wisdom of funding the effort through significant new transportation-related fees and taxes.” CalWatchdog has more. 

• “Contradicting claims made by President-elect Donald Trump, the state Assembly’s top Republican said Wednesday that he doesn’t believe there was rampant voter fraud in California on Nov. 8.” The Los Angeles Times has more. 

• “In the weeks since Donald Trump’s election, Gov. Jerry Brown has promised to press forward with efforts to reduce greenhouse gas emissions, and on Tuesday he said the state is “taking whatever steps we can to find allies and partners” in that cause. But in private meetings with Republican governors here Tuesday, Brown encountered some resistance to one major initiative — his effort to integrate California’s largest power grid with other states in the region.” Politico has more. 

• “Assemblyman Jim Frazier announced Wednesday an effort to combat recently approved federal legislation that would maximize water exports from the Delta to Southern California agriculture.” The San Jose Mercury News has more. 

Legislature:

• Gone till January. 

Gov. Brown:

• No public events scheduled.

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SACRAMENTO – A federal appeals court last week has taken the highly unusual step of finding a U.S. constitutional cause of action in a challenge to a California state law – the latest wrinkle in a long-running and bitter dispute between a farm workers’ union and two large Central Valley fruit growers.

The California Legislature approved a law last year that was designed to protect the state’s businesses after two court decisions left them open to unforeseen liabilities regarding the minimum wage. The measure, Assembly Bill 1513, passed by solid majorities, was a sign of concern about broad economic harm if companies who had acted in good faith were forced to pay various fines for some commonly accepted payment practices.

This legislative overhaul of the state’s wage-and-hour law waived all penalties if, by this Thursday, the companies paid their piece-rate workers back wages for any unpaid rest periods. The legislation would have been largely noncontroversial, except that it included carve-outs for two Fresno-based fruit growers – Fowler Packing Co. and Gerawan Farming. In other words, the law apparently applied to every California business, except for these particular companies, both of which had run afoul of a union.

According to AB1513’s language, the bill does not apply to “Claims for paid rest or recovery periods or pay for other nonproductive time that were made in any case filed prior to April 1, 2015, when the case contained by that date an allegation that the employer has intentionally stolen, diminished, or otherwise deprived employees of wages through the use of fictitious worker names or names of workers that were not actually working.” That portion exempts the two companies because of an allegation made in a lawsuit.

These two firms allege that they were exempted from the benefits of the new law because the UFW had threatened to otherwise oppose the legislation, according to a Sacramento Bee report. The measure, by the way, was pushed through at the end of the legislative session as a “gut-and-amend” deal – language was stripped out of an existing bill and replaced at the last minute with new language. Such bills circumvent requirements for a full set of hearings and legislative vetting.

The district court dismissed the companies’ complaint. But in the recent ruling, the U.S. 9^th District Court of Appeals partially reversed that decision and sent it back for further review.

Although the written opinion is still forthcoming, this is a significant ruling that focuses attention on the concept of equal protection, which was the main allegation made in the lawsuit. As their complaint argued, a key section of the law “not only arbitrarily excludes and punishes one employer based solely on an unproven allegation. It arbitrarily includes and protects employers, alleged to have used ghost workers, so long as they were sued after April 1, 2015. … (T)he ghost worker allegation carve-out is simply a mechanism to subject Fowler to disparate and punitive legislative treatment based solely on an allegation of wrongdoing.”

The appeals court, however, rejected the farms’ claim that the law had violated “bill of attainder” provisions in the U.S. Constitution. That refers to an act by any legislature that inflicts punishment without the protections of due process or judicial review – i.e., “trial by legislature.”  The plaintiffs had argued that the California Legislature exempted those companies based on some union allegations and was a form of punishment against them, in that it singled out Fowler and Gerawan, and did so without any legitimate, non-punitive purpose.

“By denying those employers the protection that every other employer enjoys, the Legislature essentially adjudged them to be guilty of egregious conduct. But the Constitution does not give legislatures the power to determine guilt, it grants that authority to courts,” explained the Pacific Legal Foundation’s Wencong Fa, in a column in the San Francisco Daily Journal. The foundation had filed an amicus brief on behalf of the companies and several farm organizations including the California Farm Bureau and Western Grower.

The Fowler and Gerawan labor disputes have been a long-running California saga. The UFW has had a variety of disputes with Fowler. In the Gerawan situation, the company says the UFW had re-emerged at the farm after a long hiatus, claiming to be the rightful representative of the farm workers there. The state Agricultural Labor Relations Board had refused to even count the ballots in a union de-certification election there – and imposed a seemingly unwanted contract on workers there. It’s become a national news story and litigation continues.

AB1513 was supported even by some agricultural organizations because of the advantages it provides to the industry in general. There’s little disagreement it was the result of tough negotiations – a point the Brown administration has made in support for the law. But that doesn’t mean Fowler and Gerawan don’t make a valid argument. The new law could be of overall benefit to most California agricultural companies while still unfairly singling out two companies involved in disputes with one of the groups involved in those negotiations.

The official Assembly bill analysis puts the issue in perspective: “Supporters argue that this bill is a fair compromise for both employers and workers, addressing a situation where there was a significant development in case law. … Opponents argue that these arbitrary provisions set forth a troubling precedent that represents political targeting that sacrifices some companies to continued legal exposure in exchange for legal protections afforded to others.”

Fowler and Gerawan asked the state to suspend enforcement of this week’s deadline pending the outcome of the case as the federal courts take the rare step of reviewing a constitutional challenge to piece of state legislation. 

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

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. 

Senate Bill 25, authored by outgoing Senate President Pro Tem Darrell Steinberg, D-Sacramento, passed the Senate and Assembly along party lines. Yesterday it was enrolled and sent to Gov. Jerry Brown for his signature. There’s no indication yet what he’ll do.

It allows either side in an agricultural labor dispute to enforce a state-written labor contract even when the other side is appealing it. The only exception is if the appellant can demonstrate by “clear and convincing evidence” that there would be irreparable harm from enforcing the contract and that the appeal would likely succeed.

One of SB25’s fiercest opponents is Dan Gerawan, whose Gerawan Farming has battled the United Farm Workers Union off and on for nearly a quarter century. His Fresno-based company is one of the state’s largest producers of peaches, plums, apricots and table grapes, employing about 5,000 workers during the peak harvest season.

Gerawan believes SB25 is aimed at his company, forcing it to immediately abide by a labor contract that was written by a state mediator after the company failed to come to an agreement with the UFW.

“Our labor contract is written by the state of California,” he said. “That is extreme enough that something like that even exists. Now with SB25 that so-called labor contract is implemented even without judicial review.”

Calculated pro-labor power play

Steinberg acknowledges that his bill is intended to empower unions like the UFW in labor disputes with agricultural companies.

“I think inherent in the dispute here is how one views the balance of power,” he told the Assembly Judiciary Committee July 2, 2013. “We honor Cesar Chavez with a state holiday. He is a hero to most Californians.

“We celebrate his life in large part because there is an inherent imbalance between large, powerful employers and poor farm workers. A poor worker doesn’t have the ability to assert himself alone. But with the power of the collective, of the union, they have that ability to be an equal and countervailing force to the employer.”

But there’s a question whether the Gerawan workers want to be represented by the UFW, which would collect 3 percent of their paycheck in union dues; and whether they want to be forced to abide by the state-mediated contract.

The company, which markets itself under the Prima brand, touts on its website that its wages exceed the industry average with an $11 per hour base rate for field workers, while grape packers exceed $15 per hour on average.

Benefits for workers exceeding 1,200 hours per year include vacation and retirement pay. Other benefits include paid compensation for the Latino workers who want to take English classes, and tuition reimbursement and student loans for employees’ children.

“The workers are net losers under this ‘agreement,’ as the 3 percent dues or fees deduction ordered by the [Agricultural Labor Relations] Board is more than the 2.5 percent pay increase ordered in the contract,” said Gerawan via email. “The union will be enriched at the expense of the workers.”

On Oct. 25, 2013, Gerawan worker Sylvia Lopez filed a petition with the ALRB to hold an election to decertify the UFW as the workers’ representative. The election was held Nov. 5, 2013.

But the ballots were impounded and not counted due to numerous objections filed against the election. The UFW filed 32 objections, most of them alleging employer misconduct, according to the ALRB. Gerawan Farming and Lopez filed 20 objections alleging misconduct by the UFW and the mishandling of the election by the ALRB.

Gerawan workers back management, not union

The ALRB has scheduled a hearing to consider the objections on Sept. 17.

Gerawan workers have expressed frustration with the delay. On Aug. 26, more than a thousand Gerawan workers wearing shirts saying “Count Our Votes!” on the front and the First Amendment on the back marched in front of the ALRB office in Visalia, according to Gotnews.com.

“At the time of the decertification election, the employees knew the contents of the so-called contract when they voted,” said Gerawan. “So it is wrong for ALRB to displace the employees’ desires with ALRB’s and UFW’s dictates.”

The UFW sees the dispute quite differently. UFW President Arturo Rodriguez’s Labor Day message targeted Gerawan Farming:

“On Labor Day, when millions of Americans celebrate labor, workers at Gerawan Farming should be getting extra holiday pay. But they’re not because their employer, one of the biggest grape and tree fruit growers in America with over 5,000 workers, refuses to honor a union contract issued by a neutral state mediator—after Gerawan refused to negotiate one with the workers’ union, the United Farm Workers.

“Gerawan workers also didn’t get extra holiday pay on Labor Day last year. Or on other holidays such as July 4th of this year. By refusing to honor the contract, Gerawan is getting out of paying its workers millions of dollars. Prosecutors for the state of California have filed four complaints—like indictments—against Gerawan for breaking the law, that includes refusing to negotiate in good faith and refusing to honor the state-issued contract.

“Gerawan needs to be made to obey the law and honor the workers’ union contract. Then thousands of Gerawan workers can get their extra holiday pay on Labor Day—plus all the other pay raises and benefits from the contract.”

The bad blood between Gerawan Farming and the UFW goes back to 1990, when the UFW won an election to represent Gerawan workers. But after one bargaining session, the union left and didn’t return for 20 years.

“The union has repeatedly refused to explain the 20-year absence, saying it has no obligation to explain it,” according to a Gerawan press release.

The UFW doesn’t explain its absence in its website discussion of the dispute, but does charge that “Gerawan attempted unsuccessfully to have the election thrown out, and the state of California found that Gerawan illegally fired a crew of workers for supporting the union and unlawfully closed down six of its farm labor camps in retaliation for workers backing the UFW.”

Millions of dollars hang in the balance

Charges and countercharges have flown back and forth between the two sides in the press, before the ALRB and in the judicial system. Millions of dollars are at stake, according to Rodriguez and former California Supreme Court Justice Cruz Reynoso in a recent op-ed in the Fresno Bee:

“California lets workers call in neutral state mediators to hammer out contracts when growers refuse to sign them. Under the contract terms set by the mediator — not the UFW — in May, the majority of Gerawan employees would have received approximately $1,074 each, retroactive to July 2013. This was to cover paid holidays and wage increases reflecting a 54-hour workweek.

“The new contract also would have handed other Gerawan workers a 2.5% wage increase, also retroactive to July 2013, plus 5% pay hikes in 2014 and 2015. For approximately 5,000 farm-workers, those back wages and benefits would have conservatively translated into many millions of dollars, just covering July 2013 to May 2014. Going forward, the contract would produce many millions of dollars more for workers over its duration.”

Gerawan believes California politics and SB25 have stacked the deck against agricultural employers in resolving labor disputes.

“The picture is this: you have got a labor board staffed with political appointees,” he said. “Three board members appointed by the governor and counsel appointed by the governor.

“[If SB25 becomes law] they have the right to write a labor contract, impose it and make it effective immediately with no judicial overview. This is huge. With SB25 no judge will even have a chance to look at it.”

He was supported by Assemblyman Donald Wagner, R-Irvine, at the July 2013 Assembly Judiciary Committee hearing.

“We have a circumstance where a union has essentially done nothing for 20 years,” said Wagner. “We do rightly applaud Cesar Chavez. But I don’t want to confuse what we’re celebrating. The point of these labor laws is not to protect the union. The union is a vehicle to protect the works who deserve the protection.

“I’m hearing about these [Gerawan employees] who are worried about being disenfranchised under this bill. I‘m wondering why we have to turn contract law on its head … maybe merely to help the union.”

The long-running controversy, which pitted Gerawan and its workers against the UFW and California’s Agricultural Labor Relations Board, has been developing fast.

The primary action was that a legal track has been established. On Sept. 29, in Fresno U.S. District Court, Judge Lawrence J. O’Neill will decide whether the decertification election held by Gerawan’s workers will proceed. The ballots cast in that election were seized and impounded by the ALRB, which has refused to make vote tallies public pending a review of what UFW has claimed are disqualifying irregularities.

Specifically, O’Neill narrowed the constitutional issue down to whether or not Gerawan workers’ First Amendment rights to freedom of association were being unlawfully infringed.

The lawsuit was filed by longtime Gerawan employee Silvia Lopez, who has been leading the workers against the UFW. The suit charges that the ALRB review has not proceeded in a timely manner. In fact, since the workers’ ballots were cast, the ALRB chose to use the delay it created to appoint a special mediator authorized by law to rewrite the labor contract negotiated between Gerawan and its employees.

Since California law gives the ALRB the power to enforce the mediator’s unilateral revisions against agriculture employers, Gerawan would ordinarily have been obliged to accept the new contract, which recognizes the UFW as the certified union representative of its workers. Gerawan had already been required to re-enter into negotiations with the UFW after the union’s decades-long absence from the bargaining table. (In the early 1990s, when virtually no current employees worked at Gerawan, the UFW was certified.) Now, however, because the workers themselves oppose the mediator’s new contract, the matter has wound up in the courts.

A political storm brews

With a full month to go before the validity of the decertification election is determined, the UFW, Gerawan and the workers have already become national news. Media attention centered recently on a fresh worker rally in Visalia, CA, where the ALRB’s Central Valley office is located.

That effort drew on the logistical support of the Center for Worker Freedom, and organization affiliated with Americans for Tax Reform, best known for getting legislators to sign “no new taxes” pledges. During the rally, Lopez succeeded in delivering a petition to the ALRB, which could figure significantly into the evidentiary findings arrived at during the September hearing.

At the same time, however, the UFW used the rally as an occasion to ratchet up its own national public relations campaign. In a statement, UFW Vice President Armando Elenes charged “national chieftains of the radical right” had planned and bankrolled “slick media campaigns” on behalf of Gerawan that relied on a “cynical outreach to Latinos.” Meanwhile, UFW spokesman Marc Grossman told CNBC the union believed Gerawan had unlawfully interfered in its interaction with workers.

But Grossman conceded the UFW did not face a slam-dunk moment in the Sept. 29 hearing. With the judge set to hear sworn testimony from a string of witnesses, the hearing “could go on for months,” he said. In the interim, both sides in the controversy seem to have determined to make the most of the delay, politically speaking.

Big implications

Although California law makes an adverse ruling against Gerawan difficult to appeal, the novel constitutional issues raised by the Lopez suit against the ALRB have given workers’ objections to the UFW a broader national relevance. Potentially, they could be seen to raise fundamental issues about the constitutionality of prevalent union certification processes.

Unions have long held an interest in keeping re-certification votes as uncommon as possible. Generously interpreted, a First Amendment right to workers’ freedom of association could be held to require much more frequent votes of that kind. That would be reflective of the employee turnover on display at Gerawan, where almost no current employees had an opportunity to vote on whether to accept UFW as their representative.

An order issued by a Sacramento Superior Court judge on Nov. 27 ruled Gerawan Framing did not have to enter into collective bargaining while preparing an appeal. The UFW didn’t even mention this setback on its website.

UFW jumps the gun

While Gerawan Farming was awaiting the results of the Nov. 5 Gerawan employee election to decertify the UFW, the UFW requested a temporary restraining order Nov. 22 to force Gerawan into collective bargaining anyway. This attempt to force unionization on the Gerawan employees was helped along by the  California Agricultural Labor Relations Board, which ordered the collective bargaining, while the Board simultaneously has been sitting on the employee election results.

Gerawan Farming refused to enter into the collective bargaining process pending the allotted 30-days to prepare an appeal. The company has since filed a complaint with the with the California Court of Appeal, Fifth District in Fresno, against the ALRB’s invocation of the California’s Mandatory Mediation and Conciliation Statute.

The UFW tried to get the state court to issue a temporary restraining order and preliminary injunction prohibiting Gerawan Farming from refusing to abide by the ALRB’s collective bargaining order. The UFW argued, “Otherwise the UFW and the workers will suffer irreparable harm from precisely the automatic stay that the Legislature declined to enact.”

(All of the documents in this case, including the UFW complaint and judge’s order, can be found here. Case number 2013-00153803)

Judge Brown’s explanation

Superior Court Judge David Brown explained in his Nov. 27 decision:

“The review by the court shall not extend further than to determine, on the basis of the entire record, whether any of the following occurred:

“(1) The board acted without, or in excess of, its powers or jurisdiction.

“(2) The board has not proceeded in the manner required by law.

“(3) The order or decision of the board was procured by fraud or was an abuse of discretion.

“(4) The order or decision of the board violates any right of the petitioner under the Constitution of the United States or the California Constitution.”

Legal cherry-picking

The UFW argued that the language within the state law compels the result they were seeking. “They assert the Legislature’s deliberate creation a narrow framework for review of a Mediator’s report by the Board (ALRB), demonstrates a desire to provide farm workers with the benefit of a collective bargaining agreement,” the judge wrote.

The UFW argued that the language of the statute provided that no final order of the Board should be stayed on appeal unless the appellant shows irreparable harm, and a likelihood of success on appeal shows an explicit intent to provide a collective bargaining agreement to agricultural workers without delay.

But the judge didn’t buy the UFW’s legal argument.

“Unfortunately, there are no provisions of the Agricultural Labor Relations Act governing the Mandatory Mediation Process that permit the Agriculture Labor Relations Board to seek temporary relief during the pendency of the 30-day period for seeking appellate review,” the judge said, quoting from a similar 2012 case, Ace Tomato Company Inc., v. United Farm Workers.

Judge Brown explained:

“In Ace, following a Board Decision affirming the mediator’s report, the UFW filed a request for agency action to enforce the anti-stay provision in the Mandatory Mediation Law, alleging that Ace had failed to implement the CBA as ordered, and requesting that the Board go to court to enforce its decision (under Lab. Code § 1164.3(f), either party or the Board may file an action to enforce the Order of the Board),” the Judge wrote. “Immediately thereafter, the Board issued an Administrative Order requesting that Ace provide a response to the UFW’s request for enforcement. Ace provided a response indicating that it intended to file a petition for review in the Court of Appeal of the Board’s decision affirming the mediator, but did not indicate whether it had implemented the agreement. Shortly thereafter, the Board issued another Administrative Order, ordering Ace to state whether it had in fact implemented the CBA.”

“As in unfair labor practice proceedings, the Board’s decisions are not self-enforcing,” the judge said. “Rather, in order to enforce its decisions, the Board must first obtain a judgement.” And judgments are obtained through the Superior Court.

Legislative intent

The judge explained legislative intent should be gathered from the whole legislative act, rather than cherry-picking a few words or isolated parts. He wrote, “Courts should thus construe all provisions of a statute together,… significance being given when possible to each word, phrase, sentence, and part of the act in pursuance of the legislative purpose.”

In other words, the judge told the UFW that words matter, especially in context. “The meaning of a statute may not be determined from a single word or sentence. Its words must be construed in context, keeping in mind the nature and obvious purpose of the statute where they so as to make sense of the entire statutory scheme,” the judge said.

The judge added there was “no legal mechanism by which the UFW could seek to enforce the collective bargaining agreement” at that time.

Judge Brown ruled: “The application is DENIED.”

On Dec. 16, Gerawan filed a constitutional challenge against the California Agricultural Labor Relations Board, with the United Farm Workers of America as a “Real Party of Interest.” It was filed with the California Court of Appeal, Fifth District in Fresno, against the ALRB’s invocation of the California’s Mandatory Mediation and Conciliation Statute. The statute was signed into law by Gov. Gray Davis in 2002.

This was part of wrangling with the United Farm Workers Union that began in Oct. 2012, when the union insisted that a collective bargaining agreement covering Gerawan workers be reactivated — even though there had been no union involvement with the workers since 1995. Some of the workers then began a process for a vote to decertify the union.

A vote on the decertification was held on Nov. 5, 2013. But On Nov. 19, 2013, the results of the vote were held up by the ALRB, which claimed a large number of the ballots were ineligible. In an email to CalWatchdog.com, ALRB Executive Director J. Antonio Barbosa also charged “misconduct, that allegedly affected the outcome of the election.”

The ALRB chose an arbitrator to decide the matter, leading to Gerawan’s court filing.

Pleading

In its court pleading, Gerawan charged:

“MMC is a compulsory arbitration process under which a mediator acting as an arbitrator dictates the terms of a CBA [collective bargaining agreement] between a grower and a union. The MMC Statute authorizes the Board to adopt the mediator’s report as a final order. The employer has no right to opt-out of this process. The employees have no right to ratify or reject the ‘contract’ imposed upon them, which here would require them to pay union dues or fees or lose their jobs. 

“The MMC Statute empowers one man – here, labor mediator Matthew Goldberg – to write a complex and massive ‘agreement’ between two private parties that would let it have the force of law….“

“This procedure has no counterpart under federal labor law, which expressly forbids the imposition of contractual terms or concessions upon a private employer or a labor organization.”

Overall dispute with the ALRB

Although the UFW officially has represented the workers for two decades, many workers charge that it has done nothing for them. The vote was whether or not to decertify the UFW as the workers’ representative.

The workers voted on Nov. 5. But so far the votes have not been counted by the ALRB. By contrast, the dispute over the 2000 presidential election vote and recount in Florida, Bush vs. Gore, took just 36 days to resolve.

Of the nearly 3,000 Gerawan Farming employees who potentially voted, 800 of their ballots have been challenged by the UFW. The ballots have been sealed and will not be opened until there is a court hearing, which is not anticipated to take place for months.

Neither the ALRB nor the UFW have explained why the ballots were challenged. Attorneys representing both Gerawan Farming and the workers suggested this is a stalling tactic.

As the ALRB has been silent since the November election, I recently contacted the board, and asked J. Antonio Barbosa, ALRB Executive Secretary, what was going on.

Barbosa emailed me his response and said, “This is a complicated case that does not lend itself to simple answers.”

Q: What is the status of the employee votes and count? Why are the results not yet available?

Barbosa:  “The results of the election are not available because multiple issues must be resolved before the results of the decertification election will be final.  In this election, the eligibility of a very large number of voters was challenged.  The Board will determine which of those challenges must be set for an evidentiary hearing in order to be resolved.  The ballots of those individuals found to be ineligible after the hearing and the resolution of any requests for review of the hearing examiner’s recommended decision will not be counted.

“Parties may also file election objections arguing that the election should be set aside because of misconduct that allegedly affected the outcome of the election.  In this matter, the UFW has filed 32 objections, the Employer has filed seven objections and the Decertification Petitioner has filed 13 objections.  The Board is in the process of determining which of the objections should be set for a hearing, and a Board Decision and Order on the objections will issue soon. The hearing on objections could either lead to the setting aside of the election or certification of the election results by the ALRB.

“Finally, in this matter a number of unfair labor practice (ULP) charges relating to the election have been filed with the Visalia ALRB Regional Office. Some of the ULP matters may be resolved in a consolidated hearing with the election objections.  It is impossible to predict how long these processes will take.  The Board is following the time lines set forth in section 1156.3(i) of the Agricultural Labor Relations Act; however it is likely that a hearing or hearings to resolve the above matters will be very lengthy.

“Insofar as the number of ULPs that are pending, investigation of ULPs is under the jurisdiction of the Office of the General Counsel.  Please contact the General Counsel’s office at (916) 653-2690 or the Visalia Regional Director at (559) 627-0995 for this information.”

Origins of the dispute

This is part 2 of a series on the ALRB. Part 1 is here.

Genevieve Shiroma, chair of California’s Agricultural Labor Relations Board, which oversees the relationship between farms and farm workers, grew up the daughter of a farm worker in San Joaquin County.

Staying close to her farm roots, according to AllGov California she earned her “associate of arts degree in math and science from San Joaquin Delta College in 1974.” After which she trekked only 70 miles away and in 1978 earned her bachelor of science degree in Materials Science and Engineering from the University of California, Davis, one of the state’s premier agricultural schools. She then joined CARB “as an air quality engineer. She worked there for 21 years, eventually becoming chief of the Air Quality Measures Branch.”

It was a natural step for her to chair the board itself, a post Gov. Gray Davis appointed her to in 1999. That position expired in 2005. In 2006, Gov. Arnold Schwarzenegger appointed her as a regular board member. And in 2011, Gov. Jerry Brown again appointed her as chair, making her the longest-serving current member of the ALRB.

ALRB

The five-member board was created in 1975 to implement the Agricultural Labor Relations Act, which Brown signed into law that year. The board’s authority is divided between the five board members and a General Counsel, all appointed by the governor. The ALRA stipulates: 

“It is hereby stated to be the policy of the State of California to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing, to negotiate the terms and conditions of their employment, and to be free from the interference, restraint, or coercion of employers of labor….”

According to its website, the ALRB is:

1. “[R]esponsible for the prevention of those practices which the Act declares to be impediments to the free exercise of employee rights…”

2. “[R]esponsible for conducting elections to determine whether a majority of the employees of an agricultural employer wishes to be represented by a labor organization, whether they wish to continue to be represented by that labor organization, a rival labor organization or no labor organization at all.”

SMUD

In 1998, voters first elected Shiroma to the board of the Sacramento Municipal Utilities District, where she currently is vice president. The board elected her its president in 2002, 2006 and 2010. Currently she serves as its vice president.

Someone in a political position not surprisingly gets involved in politics. In local Sacramento politics, even more than in California, the Democratic Party dominates. She is a sponsor of the Harry S. Truman Democratic Club.

In 2006, as president of the board Shiroma led the battle for Measure L, which would have allowed the public utility to annex some of Pacific Gas & Electric’s private property in Yolo County. It lost, 61 percent to 39 percent.

Electric Utility Week reported on Nov. 13, 2006:

“SMUD’s initiative on the November 7 ballot would have allowed the muni to annex about 70,000 PG&E customers in Yolo County in Northern California. PG&E spent more than $10 million to defeat the annexation, while the pro-annexation campaign spent about $1 million.”

The pro-annexation campaign was called SMUD Customers Say YES to Low Rates, and was led by Shiroma and other SMUD board members. The Sacramento Bee reported on Jan. 2, 2006:

“The group has hired political consultant Richie Ross, Shiroma said Friday.”

Ross is one of the most influential strategists in Sacramento. A strike organizer for United Farm Workers longtime President Cesar Chavez, Ross now is a registered lobbyist for the UFW, whose cases go before the ALRB.

(The Electric Utility Week and Bee articles no longer are online, but copies of them are in this document.)

Looking into the ALRB

One case involving the UFW now before the board concerns the farm employees of Gerawan Farming, one of the Central Valley’s largest growers of peaches, plums, nectarines and grapes. As I have reported in a series of articles, the workers have been fighting off unionization by the UFW.

Briefly, the Gerawan Farming workers have spent months protesting the UFW takeover attempt. The UFW has maintained that a unionization vote by the workers more than 20 years ago still is binding, and the workers must begin paying union dues.

The farm workers, led by farm worker Silvia Lopez, have insisted that the union has done nothing at all for more than two decades. Lopez personally led a petition drive for a decertification vote.

In response, the ALRB charged the company, Gerawan Farming, with circulating the petition among its employees. However, Lopez and other employees insist that they, not Gerawan, circulated the petitions. Based in part on the publicity from my articles, the ALRB conceded and granted the farm workers the right to vote on the union contract.

Considering Shiroma’s background and the controversies before the ALRB, I emailed her some questions. She graciously replied.

Q & A

Here is my inquiry to Shiroma, with the verbatim questions and answers:

“I am submitting the following questions and will follow up with a phone call.

“This Los Angeles Times article (below) mentions that Fresno area farming owner Dan Gerawan filed a complaint against the Board for members having accepted outside income when the law prohibits ALRB board members from receiving outside income.

“http://articles.latimes.com/2004/nov/11/local/me-boards11/2

“Though the primary target of the complaint appeared to be Board Member Daniel Zingale, the article mentions that you were also receiving outside income.

“The LATimes said: ‘Gerawan said he has his own attorney general’s opinion affirming the constitutionality of a ban on board members working at outside jobs. He is using that opinion in pursuing his case against Zingale. Zingale is not the only Agricultural Labor Relations Board member with outside employment. Bustamante works as a public relations consultant, and Shiroma is an elected member of the Sacramento Municipal Utilities District.’

“I have these questions:

Q 1: “Were you in fact receiving income outside of your ALRB position at that time? If so, please describe the type and amount of income.
”

Shiroma: “No, I have not and do not receive outside income since first being appointed to the Board in 1999.”

Q 2: “If so, did you stop receiving that income? ”

Shiroma: “See response to 1. above.”

Q 3: “And, if so, did you stop receiving that income subsequent to Dan Gerawan’s complaint?
”

Shiroma: “See response to 1. above.”

Q 4: “Finally, do you feel that Gerawan’s complaint, and its impact on ALRB board members, could in any way prejudice a member about matters related to Gerawan or its employees?

Shiroma: “No.”

Q 5: “Also, in these Board minutes

http://www.alrb.ca.gov/content/pdfs/meetings/minutes/2005/minutes050405.pdf

you and current board member Cathryn Rivera-Hernande voted to allow up to $50,000 to be spent for the legal defense of Board Member Zingale for having accepted outside income, in violation of state law (which both he, the Attorney General, and the governor admitted he was doing).

“In hindsight, as the Chairwoman of ALRB, then and currently, do you feel this was a proper expenditure of public funds?”

Shiroma: “Yes. Government Code 995 provides that, upon the request of an employee or former employee, a public entity shall(emphasis added) provide for the defense of any civil action or proceeding brought against him, in his official or individual capacity or both, on account of an act or omission in the scope of his employment as an employee of the public entity.”

Q 6: “Shouldn’t Zingale have paid for this himself?”

Shiroma: “See above.”

Q 7: “Finally, given that Dan Gerawan indirectly caused this expenditure approved by you and Board Member Rivera-Hernandez, do you still feel that the ALRB of Directors can act without bias in matters related to Gerawan?”

Shiroma: “Yes.”

————-

Update: Shiroma’s positions on AB 32 and Proposition 23 are reported here.