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. 

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.

Pending a seemingly interminable ALRB investigation into the employees’ vote to decertify the United Farm Workers as their union representative, the ballots from that election were impounded and kept secret by the ALRB. The ALRB, meanwhile, seized the opportunity to appoint a mediator tasked to unilaterally draw up a new contract between Gerawan and its workers.

According to California law, that contract is enforceable regardless of the wishes of the employer, in this case Gerawan. What is now at stake is whether such a contract can be imposed against the wishes of employees — whose interests the ALRB was created to protect during the Cesar Chavez-era of the 1970s.

According to U.S. District Court Judge Lawrence J. O’Neill, that is a matter that ought to be settled in the courts. In a recent ruling, he held that the lawsuit will move to trial. The ALRB had filed a motion to dismiss the workers’ suit. Although O’Neill agreed that the portion of the suit arising from their 14th Amendment claims should not proceed, he gave the First Amendment claims a green light.

A landmark controversy

The extraordinary case, pitting one of California’s biggest agricultural employers against one of its most famous — but struggling — unions, has put a dramatic twist on the typical controversies between organized labor and large businesses. After decades spent developing a close working relationship with Gerawan management, workers rebelled at the efforts of United Farm Workers.

The adverse reaction stems from a decades-long tale of unusual behavior toward Gerawan by UFW. In 1990, Gerawan workers voted in the UFW as their labor representative. Two years later, that vote was certified. But after engaging in negotiations with Gerawan, the UFW chose to walk away — disappearing from the scene without securing a new labor contract.

Not until 2012, after its membership had plummeted by tens of thousands statewide, did the UFW return, demanding to pick up where it had left off. Because of California labor law, Gerawan was obliged to acquiesce in the union’s demands and resume contract negotiations. Once again, however, the process did not advance quickly. Rather than walk away again, the UFW went to the ALRB.

Specifically, the UFW asked the ALRB to authorize an arbitrator, known as a mediator, to draw up a contract on his own. California law permits an ALRB-authorized mediator not only to write such a contract, but to lawfully impose it on employers and employees. Although nobody was shocked that the mediator created a contract that Gerawan found objectionable, the ALRB was taken aback when it became clear that workers themselves opposed the arrangement.

As it turns out, virtually none of the current employees worked at Gerawan when the UWF was originally certified. Given that the UWF essentially gave up on representing those workers, the certification may have had legal standing, but from the standpoint of workers, it lacked legitimacy. What’s more, the contract written up by the mediator imposed union dues on workers, even though the union had done nothing for them so far, and their wages were already higher than those of Gerawan’s unionized competitors.

That’s why Gerawan workers agitated for, and finally were granted, a decertification election. (It was held last November.) And that’s why, when the ALRB impounded the ballots cast, workers suspected that both the ALRB and UFW were actively working to prevent their votes from being counted and their voices from being heard.

Now that the suit is cleared for trial, one of the most consequential developments in labor law could soon be in the offing.

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

Shiroma, a Democrat, was an outspoken opponent of 2010’s Proposition 23, which would have suspended AB 32, California’s Global Warming Solutions Act of 2006, until unemployment in the state dropped to 5.5 percent. Shiroma was also Board Chairwoman of the Sacramento Municipal Utilities District.

A 2009 study of AB 32, “Cost of AB 32 on California Small Businesses,” was by two Cal State Sacramento economists, Sanjay B. Varshney and Dennis H. Tootelian. It found that AB 32 would kill 1 million jobs by 2020.

On farming specifically, the study found that small farm businesses would be hit with $498 million in additional costs for AB 32 compliance due to increased prices for fuel, machinery, fertilizer, etc. Farm income would decline by $195 million. Farm workers would lose $101 million in income. And 3,671 jobs at small farms would be killed.

Despite such warnings, Prop. 23 was opposed by then-Gov. Arnold Schwarzenegger, then-gubernatorial candidate Jerry Brown and most of the state’s political establishment.

In her comments at a 2010 Sacramento event, Genevieve Shiroma, also president of the board of directors for the Sacramento Municipal Utilities District, said the utility helps to advance economic development and create jobs through its environmental programs, the Sacramento Press reported in 2010, in “Johnson, SMUD official protest Prop. 23.”

Mayor Kevin Johnson, Shiroma, and other representatives from public agencies and businesses receiving green subsidies said that Prop. 23 would harm the environment, green businesses and air quality.

“AB 32 has provided the vital regulatory certainty needed for venture capital investment, entrepreneurial innovation and market development to prosper in California,” Shiroma said while President of the Board of Directors for SMUD.

If Shirmoa had taken a different position on Prop. 23, it’s doubtful Brown would have re-appointed her as board chair.

After a highly funded demonization campaign, voters roundly rejected AB 23, 62 percent to 38 percent.

Part 1 of the ARLB series, What is the Agricultural Labor Relations Board, can be found here.

Part 2 of the series is background on Shiroma, and can be found here.

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.

Editor’s note: This is Part 1 in a series on the ALRB.

California government includes many boards and commissions with members appointed by the governor. Most people never get to see who these decision makers are, despite the far-reaching effects of their decisions on the people of the state.

Such is the case with the Agricultural Labor Relations Board. Made up of five members, the board was created when the Agricultural Labor Relations Act was signed into law in June 1975 by Gov. Jerry Brown.

Only 18 days later, Brown nominated the ALRB’s first five members, which the state Senate confirmed:

* Chairman Roger Mahony, at the time an auxiliary Catholic bishop for Fresno and the future cardinal and archbishop of Los Angeles. He had been involved in farm workers’ issues for many years.

* Joe Ortega, an attorney for farm workers.

* Leroy Chatfield, a former high-level UFW staffer who helped write the ALRA.

* Richard Johnson Jr., executive vice president of the California Agriculture Council.

* Joseph Grodin, a labor law professor and future California Supreme Court Justice.

According to the new 2013 book, “Trailblazer: A Biography of Jerry Brown,” by Chuck McFadden:

“The growers felt betrayed. They believed the appointments of Chatfield, Ortega and Mahony meant the board weighed 3-2 in favor of the unions. Brown himself said that he had envisioned the board as balanced, with Ortega and Chatfield representing the unions, Johnson and Grodin representing the growers, and Mahony serving as the swing vote.”

The 2008 book, “César Chávez, the Catholic Bishops, and the Farmworkers’ Struggle for Social Justice,” by Marco C. Prouty, sheds further light:

“Instead, Mahony became a lightning rod. Brown later remarked that he ‘didn’t know [Mahony] that well,’ and didn’t anticipate the bishop to be ‘as much a polarizing force as he’ was. Mahony’s ‘image in the farming community was more pro-UFW’ than Brown realized, but regardless, the governor ‘felt it was important to have a board that all sides would have some confidence in, but particularly the farm workers’….

“Mahony may have harbored a personal preference for the farmworkers, but CALRB’s records indicate that the bishop maintained his professionalism.”

An ALRB study, “Setting the Record Straight,” found that the five board members produced dissenting opinions in just 7 percent of cases.

In 1976, Mahony faced a major funding crisis for the ALRB and had to lay off workers and faced numerous other problems, as described in Prouty’s book.

Union decline

The subsequent decades have seen a reduction in the ALRB’s reason for existence, as farm unionization has declined. According to a 2000 study by Phillip Martin of University of California, Davis, “Labor Relations in California Agriculture: 1975-2000,” the ALRA  was passed “to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations.” Instead, “what has happened over the past 25 years [1975-2000]: Union activities, measured by elections or unfair labor practice charges filed, peaked in 1975-76, and have since fallen over 90 percent.”

Despite passage of the ALRA in 1975, membership in unions was met with mixed results. Membership in the UFW had fallen from a high of 70,000 in 1972 to a low of 6,000 in 1974. After the ALRA’s passage, membership then rose in 1977 to only 18,000.

And at the time, Brown ally Rose Bird was his secretary of agriculture and a major author of the ALRA. She now is remembered as the first and only chief justice of the California Supreme Court to be removed from office by voters, along with associate justices Cruz Reynoso and Joseph Grodin. The latter, of course, had been one of Brown’s first appointments to the ALRB.

Current ALRB

According to the board’s website, “The agency’s authority is divided between a Board composed of five members and a General Counsel, all of whom are appointed by the Governor and subject to confirmation by the Senate.”

With two vacancies, the board currently has three members:

* Chairwoman Genevieve A. Shiroma, who has served on the board since 1999, was appointed by Gov. Gray Davis. She was reappointed by Brown in 2011.

* Cathryn Rivera-Hernandez was appointed by Davis in 2002 and re-appointed by Brown in 2013.

* Bert Mason was appointed by Davis in 1999, and served until 2002. He was appointed again by Brown in 2012.

The general counsel, Sylvia Torres-Guillén, was appointed by Brown in 2011.

Executive Secretary J. Antonio Barbosa, who runs day-to-day operations, is appointed by the board and has held his position since 1992.

This series will report on the backgrounds of the board members and officials. Part 2 of the series will be on ALRB Chairwoman Genevieve A. Shiroma.

The UFW won an election to organize Gerawan Farming more than 20 years ago but has been silent ever since. Certified by the ag labor board in 1990, the UFW held only one meeting a couple of years later, then abandoned the farm due to lack of worker support. There was never a contract.

So when the UFW, needing new dues-paying members, showed up in October 2012, claiming Gerawan Farming’s 5,000 employees were de facto union members, the workers were furious.

Organized by longtime Gerawan Farming employee Silvia Lopez, thousands of workers fought against the attempted takeover.

“We never certified the union,” said Silvia Lopez during an interview on KMJ radio with host Ray Appleton on Friday. “Why do we have to certify the union? This is a question for Jerry Brown.”

“I tried to contact the governor, but couldn’t,” Lopez said. “The only thing we want is to vote.”

Does the Ag labor board have an agenda?

SILVIA LOPEZ

Lopez collected signatures to petition the Agricultural Labor Relations Board for decertification of the UFW. She turned in 2,000 signatures Sept. 19. The ALRB rejected her petition and said most of the signatures were forged.

Undaunted, Lopez turned in another 3,000 signatures Friday, Oct. 25.

Within 24 hours, Silas Shawver in the Visalia ALRB office said Lopez turned the petition and signatures in too late to be valid.

But then the Sacramento ALRB overturned Shawver’s decision and said the workers could have an election, within seven days of submitting the signatures.

But on Thursday, Oct. 31, Shawver announced his decision to block the decertification election.

Angered and frustrated, 1,000 workers protested at the Visalia ALRB office Friday, demanding the right to vote.

On Friday, Nov. 1, workers received word from the ALRB they could have their election Tuesday, Nov. 5.

‘They have a right to vote’

Assemblyman Jim Patterson, R-Fresno, is also angry. “The workers have been entirely ignored by the very people and political leaders supposed to be representing them,” he told me. “The ALRB is a rogue agency now, entirely biased and out of control.”

Patterson, shown at right, wrote a letter to Gov. Jerry Brown expressing his support of the farm workers and urging Brown to intervene with the ALRB.

“It is the governor’s responsibility,” Patterson said. “He authored and signed the enabling legislation. It’s an absolute obligation to meet with these people. They have the right to vote.”

Patterson said he would work toward legislation reining in the rogue ALRB. “They cannot treat people like this,” he added. “I’m just amazed the governor has not intervened.”

Patterson said he was particularly disgusted at the silence of Assembly colleagues who represent the Central Valley. “I’ve reached out to Assembly Democrats Henry Perea and Rudy Salas on a number of occasions,” he said. “The silence is deafening.”

“This is what one-party rule looks like,” Patterson said. “This is the consequence of a supermajority of one party. And it’s an abuse of power.”

Legislative games abet union power plays

The United Farm Workers sponsored a bill earlier this year by Sen. Darrell Steinberg to grant the union advantages given to no other union in California, such as forcing employers into constant, repeated mediation.

SB 25 was specifically targeting six of the state’s largest farms in order to assume control of the workers, and thus instantly triple UFW membership.

But the farm workers who found themselves impacted by this law did began to fight. Silvia Lopez and thousands of Gerawan workers fought against the attempted takeover.

Even lawmakers from farming regions would not vote for SB 25. Unable to get the bill passed out of both houses of the Legislature, Steinberg sent SB 25 to the inactive file in September.

But that did not end the union troubles for the farm workers, or for Gerawan Farming.

Ag board in ‘cahoots’ with union?

Because Silas Shawver, the ALRB regional director in Visalia, refused to document and publish the total signatures on the first petition Lopez submitted, his decision to dismiss the petition looked subjective and suspicious.

Lopez told me ALRB officials, including Shawver, personally met with more than 2,000 Gerawan employees at the farm before the first election so the ALRB could inform the workers of their right to ask for an election.

Given that the ALRB witnessed firsthand the interest of the workers in an election during that meeting, Shawver’s ruling invalidating the signatures was troubling to many.

And so was the UFW’s statement to me:

“The ALRB issued a 12-page report which dismissed the workers’ petition,” said UFW communications director Maria Machuca, when I called her following the first election. ”It was just a small group, the petition, and included forgeries and company involvement, which is illegal.”

“The ALRB invalidated the Gerawan decertification petition based on illegal employer involvement,” Machuca added in an email following my call. “In its review of the petitions signed by employees, the ALRB found a substantial number of forged signatures.  Nothing demonstrates more disrespect for employees than forging their signatures on a legal document.”

As this story unfolds the seeming relationship between the ALRB, a government agency, and the UFW, a union, continues to be of interest.

In a recent CalWatchdog story, I explained: “During an August 21, 2013 court proceeding, Judge Jeffrey Y. Hamilton said, ‘So the court is very suspect of, one, the ALRB’s position here.  It almost seems like it’s in cahoots.  And the court finds it very troubling that the ALRB is taking such a position, especially sitting in a prosecutorial role.’”

More to come on this story as it develops.