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.

Tips: matt@calwatchdog.com

Follow us: @calwatchdog @mfleming

New follower: @ByJudyLin

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. 

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.”

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

Thousands of farm workers in the Central Valley object to unionization under a collective bargaining agreement with the United Farm Workers. As I have detailed, they say the Agricultural Labor Relations Board is forcing them into the collective bargaining agreement anyway.

The workers of Gerawan Farming collected 2,000 co-workers’ signatures in September and delivered a petition to the ALRB to decertify the United Farm Workers union. But the ALRB declared the signatures were forged and denied the petition.

Undaunted, the workers started over, and this time delivered a second petition with 3,000 signatures to the Agricultural Labor Relations Board Visalia office last Friday.

But by Monday. they heard the second petition was also rejected, under questionable circumstances.

“We are very sad that our government is working against us,” said Silvia Lopez in a statement following the ALRB decision Monday.  “We just want the right to vote.”

 ALRB ‘stepped in it’

Assemblyman Jim Patterson, R-Fresno, said in an interview on KMJ radio Thursday, the Visalia ALRB “stepped in it,” when they declared the second petition was no good. Patterson said the Sacramento ALRB had to intervene and straighten up the petition procedures.

The Visalia ALRB office appeared to prevent the signatures from even being counted this time. Workers have had many run-ins with ALRB Visalia Regional Director Silas Shawver in their quest to be rid of the UFW.

But once the signatures were officially counted and verified, the ALRB confirmed a “showing of interest.” This decision means the farm workers need to hold an election to decertify the UFW within seven days of turning the petition in.

But, the ALRB can, and may still, block the election at any time.

“ ‘Farm worker’ does not equal UFW any more,” said the workers’ attorney, Paul Bauer, also interviewed on KMJ radio Thursday. “They can speak for themselves.”

Bauer represents Silvia Lopez, the Gerawan Farming employee who has been leading the drive to decertify the UFW.

“No communication to the workers in 20 years from the UFW — they want a vote now,” Bauer said. Bauer was referring to the amount of time the UFW has abandoned Gerawan’s workers. After winning an election in 1990, the UFW disappeared, never to be hear from until October 2012, apparently in search of new dues-paying members.

“The UFW is ‘offering’ her a pay cut to let them come back, as well as 3 percent of her pay,” Bauer said.

Why the UFW picked Gerawan

Not only did the Gerawan Farming workers recently tell me they think the UFW deal stinks, they really like their employer.

Silvia Lopez’s parents worked for Gerawan Farming. Silvia has worked there for more than 15 years, and her daughters also work for Gerawan.

Bauer said Gerawan Farming is the largest farming employer in the area, and probably why the UFW targeted the 5,000 Gerawan employees for unionization. “Winning this one is like winning the Super Bowl,” KMJ radio talk show host Chris Daniels added.

UFW membership has dwindled to below 4,000 members from a high of 50,000 in the 1970’s, shrinking in size and relevance.

Bauer said with all of the regulations and labor laws in California to protect workers, labor unions are no longer needed. “People like Miss Lopez are treated very well. They like working there,” Bauer added.

Bauer said the UFW picked on the wrong company. Gerawan employees like their employer, they like their jobs, they like their pay and benefits.

It is evident the UFW grossly miscalculated on this one.

“They didn’t count on a Silvia Lopez,” Bauer said. “She’s a true civil rights leader. She works hard, has encountered difficulties, and her heart is big.”

Daniels asked Bauer, “If the UFW is so sure of their value to workers, why not put it to a vote?”

“If you are a farm worker, they think you aren’t smart enough to represent yourself, and must be a UFW member,” Bauer said. “It’s very humbling to meet people like Miss Lopez, who are willing to stop at nothing to do the right thing.”

Silvia Lopez is a quiet, thoughtful 15-year Gerawan Farming employee, and the de facto leader of thousands of Central Valley farm workers who have been protesting for nearly a year to oust the United Farm Workers union from the farming company.

Seven hundred Gerawan farm workers took a day off without pay and descended on Sacramento Wednesday to attend a meeting at the Agricultural Labor Relations Board.  Then they walked to the State Capitol to meet Gov. Jerry Brown.

Six of the farm workers tried to ask Brown to intervene with the ALRB to allow them to vote on whether to keep or oust the UFW from Gerawan Farming.

“Jerry Brown, we want an election at Gerawan Farming,” Lopez said, as she approached the governor’s office.

While waiting in the Capitol hallway outside, one of Brown’s employees poked her head out and asked, “Are you guys with the UFW?”

“No, we are against the UFW,” Lopez said. “We are farm workers with Gerawan Farming. And I am Silvia Lopez.”

But the governor didn’t respond. Instead, to talk with the workers, he sent Martha Guzman-Aceves, the Deputy Legislative Secretary for agriculture, environment and natural resources.

From Guzman-Aceves, Brown's negative message was loud and clear. She is a former Legislative Coordinator for the United Farm Workers, AFL-CIO. She was co-founder of three non-profit organizations under the name, the Communities for a New California. It describes itself as “committed to empowering underrepresented communities in California’s Central Coast, San Joaquin Valley and South East Desert. CNC works to promote economic prosperity, community health, and accessible and accountable government with election and policy campaigns. CNC organizes communities around the issues that matter most to them through localized direct education activities, earned media, and training.”

Meeting

The meeting with Guzman-Aceves lasted 45 minutes, during which Lopez told the story reiterating that the workers don’t want and don’t need the UFW at Gerawan Farming. She told Guzman-Aceves how she personally collected 90 percent of the workers’ signatures, but they were rejected by the ALRB.

The workers recounted the UFW harassment, and showed Guzman-Aceves Lopez’s swollen wrist.

Guzman-Aceves said she would call the ALRB area representative in Visalia. But Lopez said that would do nothing, as ALRB’s Visalia regional director, Silas M. Shawver, is the official who rejected the signatures, and has fought them every step of the way.

“Would you not like me to call him?” Guzman-Aceves asked.

Lopez explained again that they were there seeking intervention from the governor. “There’s no recourse for us. That’s why we are here,” she said. “We just want an election.”

But as Guzman-Aceves stood up to indicate the end of the meeting, Silvia Lopez shook her head and said, “Jerry Brown is not coming.”

UFW response

“The ALRB issued a 12-page report which dismissed the workers' petition,” said UFW communications director, Maria Machuca, when I called her. “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.”

The ALRB decision Machuca referred to was issued Sept. 25. “This Petition is invalid because is has not been accompanied by an adequate showing of interest,” the decision said. “In addition, the Petition is being dismissed because there is no reasonable cause to find the Petition presents a genuine question of representation.”

Ironically, because the workers were not represented by a union, they could not petition to get rid of the union.

Coming to Sacramento

Earler in the day, Lopez led 700 polite workers holding signs that said, “No UFW,” “Our Jobs, Our Choice,” and “Let us Vote.”

Despite the calm crowd, Lopez pointed out UFW infiltrators. Lopez told me she had an encounter with a couple of UFW representatives as the group’s seven buses arrived and parked on 10th Street in front of the Capitol. One of the UFW men grabbed and twisted her wrist and demanded to know who paid for the buses.

Lopez said the UFW men then tried to get the bus drivers to tell them who paid for the buses. Getting nowhere, they called some of the workers — excuse the word, but it's important to quote it directly — “wetbacks,” and threatened to call immigration law enforcement.

Despite the aggression, Lopez welcomed the men to join her should they change their minds about the UFW.

As to the buses, Lopez told me that they were paid for by a generous donor after he heard her interview on the Ray Appleton radio talk show Tuesday. The buses carried the 700 protesters from the Fresno area to Sacramento.

Agricultural Labor Relations Board

The hundreds of farm workers assembled in front of the Sacramento Convention Center on J Street while Lopez and others met with a representative from the ALRB, located across the street. Lopez said they would not let her into the ALRB board meeting in progress, and instead had her communicate through an ALRB employee.

“The UFW is not offering anything,” Lopez said. “The ALRB is the same — they are just up there,” she said, gesturing 20-story building across the street (pictured nearby).

Lopez was only asking for the opportunity to vote on whether the Gerawan employees would allow the UFW to represent them, or not. The ALRB has denied this request, despite the 3,000 signatures Lopez collected for a petition to decertify the union and allow them to continue working as non-union employees.

UFW and ALRB

In order to breathe new life into the moribund union, many in the farming community claim the ALRB and UFW have joined forces to boost the union by targeting one of the biggest non-union farming operations in the state. Should they succeed in unionizing Gerawan Farming employees, adding the 5,000 farmworkers would double union membership, and certainly boost the ALRB’s status.

The UFW is a shadow of what it once was. With approximately only 3,300 union members, the UFW needs money and members to survive. Earlier in the year, I wrote about Senate Bill 25, a bill by Sen. President Pro Tem Darrell Steinberg, D-Sacramento, targeting six of the largest non-union farming operations in the state.

Gerawan Farming’s story depicts a state government seeking to encroach on private sector business. Owner Dan Gerawan told me in August, if SB25 was signed into law, he could lose his business and thousands of his workers could lose their jobs.

He said the real motive behind SB25 was to target his 5,000 workers, as well as other large farming companies’ workers, to force them into the UFW in order to immediately double the union’s size. SB25 was not passed this year, but will be taken up next year.

Gerawan Farming

The UFW won an election to represent Gerawan Farming's workers 23 years ago. But after only one bargaining session, the union disappeared and wasn’t heard from for more than 20 years.

Last October, the union reappeared to impose a contract on Gerawan Farming and its employees — without a new vote of the workers.

Every Gerawan worker said the company offers the highest paying employment package in the industry; the workers don’t need or want the union.

Belen Lopez, Silvia’s daughter, said she goes to college and was working as a cashier for $8.00 per hour. But she quit that job and went to work in quality control at Gerawan Farming, starting at $10.00. Belen said Gerawan pays bonuses and allows her a flexibility to meet her school schedule. She and the other workers said Gerawan Farming allows all the time off they need, and allows the workers to decide among themselves who works, as long as the production needs are met.

The right to vote

“Government, we are here of our own free will,” yelled one farm worker as he stood in front of the ALRB building, looking up to the 19th floor. “We are here and we want the right to vote!”

“We don’t want the union — we want the right to vote. We want to be heard!” Silvia Lopez yelled into the microphone.

Lopez said she personally gathered more than 1,100 workers’ signatures in only three days. And it’s not an easy task. Signature gatherers must wait until workers are on break to even approach them, and use the time to explain the petition and get signatures. She eventually gathered more than 2,800 signatures, but the ALRB denied most of them, claiming the signatures were forged, as I wrote in “Farm workers fight UFW unionization.”

The labor union boasted 50,000 members by the end of the 1970s. But according to the UFW’s last Labor Organization Annual Report filed with the U.S. Department of Labor, as of Dec. 31, 2012 the union had only 4,443 members. So it has declined by more than 90 percent. By contrast, today the California Teachers Association lists 325,000 members.

In order to breathe new life into the union, many in the farming community claim the ALRB and UFW appear to have joined forces to reverse their misfortune by targeting one of the biggest non-union farming operations in the state. Should they succeed in unionizing Gerawan Farming employees, adding the 5,000 farmworkers would double union membership, and certainly boost the ALRB’s status.

Gerawan Farming

The UFW won an election to represent Gerawan Farming’s workers 23 years ago. But after only one bargaining session, the union disappeared and wasn’t heard from for more than 20 years.

Last October, the union reappeared to impose a contract on Gerawan Farming and its employees — without a vote of the workers.

Silvia Lopez

“We don’t want the union,” said Silvia Lopez in a recent radio interview on Fresno’s KMJ radio station with host Ray Appleton. “Why is that so hard to get?”

Lopez, a 15-year employee of Gerawan Farming, is one of hundreds of farm workers who protested the ALRB and United Farm Workers recently.

Lopez said their primary issue with the United Farm Workers union is the 3 percent deduction the union will take out of their paychecks for dues. For a majority of the Gerawan Farming workers, union dues have never been taken out of their paychecks before. Lopez said the union is coming after them because of the union agreement in 1990, but she said a contract was never drawn up.

“The union just came in and said they would charge us to represent us,” Lopez told Appleton. “I was worried. Where have you been?” she said she asked. “We don’t need them. We are waiting for someone to help. No one is helping. Where is Jerry Brown? Who is going to defend our rights?”

Lopez said she collected the workers’ signatures herself, crew by crew, as she counted the employees. “I wrote down everything. I know the employees of Gerawan,” Lopez said.

When the ALRB said the signatures were no good, Lopez said she was angry. “That’s a lie. I know ALRB and they’re lying,” Lopez said. “I counted those signatures. I know I turned in 90 percent of the signatures. If the union comes into our company, we are going to quit. We won’t pay 3 percent to the UFW. I don’t like the UFW. They don’t offer the benefits they promise.”

Lopez added, “Why are they scared of an election?”

Help farm workers

Farm employees from Gerawan Farming have been trying to get out the UFW since October 2012. The employees recently petitioned the ALRB for a vote, but it sided with the UFW to block the employees from even being able to vote on keeping or booting the UFW.

After circulating a petition collecting workers’ signatures to decertify the UFW, the ALRB rejected workers’ petition last week. The ALRB claimed the workers’ petition lacked valid signatures and even accused  the workers who organized the petition of forging signatures.

“What Would You Do?” the Help Farm Workers website asks. “What would you do if representation were forced on you without your right to vote on it? What if that representation carried with it a dues tax on every dollar you earned?

“This is what faces the workers at Gerawan Farms unless the California ALRB honors their right to a fair and free election.”

ALRB

Adding insult to injury, ALRB’s Visalia regional director Silas M. Shawver has accused Gerawan Farming of circulating the petition seeking the decertification election, according to the Fresno Bee.

” ‘There is no doubt that there are Gerawan workers who genuinely want to decertify the union at their workplace,’ the ruling states,” reported the Bee. “However, ‘the evidence shows that a majority of the current employees at Gerawan have not expressed interest in decertifying the union.’”

The recent ruling came following Gerawan employees’ rallies in front of ALRB offices in Visalia and Kerman, demanding, “Let us Vote.”

“In a letter to Silas Shawver, regional director of the ALRB, Gerawan noted that Shawver’s math just doesn’t add up: more than 2,000 signatures from Gerawan employees were filed asking for a decertification vote, yet only 1,300 were needed and just 100 were deemed invalid,” the Help Farm Workers website said.

A Gerawan Farming statement on the Help Farm Workers website explained:

“We believe the Petitioner and the potential voters have a right to know the signature count. Otherwise, it appears that the decision about whether to dismiss or not dismiss a petition is an arbitrary one not based on a fair and careful assessment of whether there is reasonable cause to believe there is a bona fide question of representation,” the statement said.

“Gerawan reminded the ALRB that, at Gerawan’s request, the agency officials personally met with over 2,100 Gerawan employees before the election. The Board’s agents, including Mr. Shawver, visited the farm so they could inform the workers of their right to ask for an election. “When the ALRB hides the actual signature count, as you have done, it certainly creates reason for suspicion that something is just not right.”

The bill would put farm workers under the state’s Mandatory Mediation and Conciliation law. Under that law, the California Agriculture Labor Relations Board could impose wages, terms and conditions of employment on the farm workers and the company itself. The terms of an agreement would decided by a single arbitrator/mediator, who meets with the employer and the union separately, and drafts the contract. Workers never would get to vote on the contract (as they do with collective-bargaining agreements).

The bill is sponsored by the United Farm Workers labor union, which has come under hard times since legendary co-founder Cesar Chavez died in 1993. As the Nation magazine reported in 2012, mismanagement has caused the union’s membership to nosedive from a peak of 50,000 to about 6,000 today.

Steinberg, a former labor union lawyer, is not only carrying the legislation, but using his considerable influence to get the bill signed into law.  SB 25  passed both houses of the Legislature and awaits a decision by Gov. Jerry Brown on whether to sign it.

Targeting successful agriculture

Farm owner Dan Gerawan calls Steinberg’s bill a “surgical strike against the industry.” SB 25 could wipe out Gerawan’s family-owned farm, currently employing 5,000 workers, as well as six other targeted farming businesses.

Farmers and growers could be forced into fast track mandatory binding mediation with a collective bargaining agreement. This would severely limit any due process an employer may have to appeal a mediator’s order to a court.

SB 25 would expand the use of mandatory mediation under California’s Agricultural Labor Relations Act of 1975, and would remove the current requirement that the employer must have committed an Unfair Labor Practice prior to mandatory mediation. SB 25 seeks to shorten the length of time it takes for a mediation decision to become binding, as well as reduce the number of negotiations that qualify for the process.

Dan Gerawan’s story depicts a state government seeking to encroach on private sector business. Gerawan says that, if SB 25 is signed into law, he could lose his business and thousands of his workers could lose their jobs.

He believes the real motive behind SB 25 targets his 5,000 workers, as well as other large farming companies’ workers. Forcing Gerawan’s workers into the UFW would almost double the union’s size — assuming the workers didn’t lose their jobs.

Back to the future

The UFW won an election to organize Gerawan Farming more than 20 years ago. The election was certified by the California Agricultural Labor Relations Board in 1990. The UFW held only one meeting a couple of years later, then abandoned the farm due to lack of worker support, according to Gerawan. There was never a contract.

Gerawan has testified at each legislative committee hearing for SB 25 that his company offers the highest paying employment package in the industry; his workers don’t need or want the union.

“After campaigning to represent those workers over 20 years ago and being certified as their exclusive bargaining agent in 1992, the UFW did essentially nothing to represent those workers,” Gerawan said.

Then, without warning, the UFW union reentered the scene in late 2012, claiming it represented Gerawan’s workers.

“To our knowledge, the UFW has never asserted, as a justification for its failure to do anything, an alleged statement by us that we would not sign a contract,” Gerawan explained. “They didn’t file unfair labor practice charges, or even send us a letter, or call us in 20 years.”

The UFW recently invoked the Agricultural Labor Relations Act, and the California Agricultural Labor Relations Board compelled Gerawan Farming into Mandatory Mediation and Conciliation.

The UFW has invoked the law only a few times since 1975 because the union cannot use mediation until it gains contracts. According to Gerawan, the union has been largely unsuccessful in its attempts to organize workers in the last two decades. “The UFW is so inept,” Gerawan said. “They abandoned the workers, and now they are back to pick the pockets of the highest paid workers in the industry.”

 Legislative target

“The UFW won a contested election at my family’s company 23 years ago,” Gerawan first told me in June. “But after only one bargaining session, they disappeared. The UFW completely abandoned the workers. We have no right to opt-out. Neither do our workers. They won’t be asked to ratify this contract. They won’t be asked to authorize the UFW to negotiate. They are not given that choice.”

SB 25 would be a weapon so powerful there would no longer be a need to negotiate with the UFW, only to capitulate to union demands, according to Gerawan.

Card-check

In 2011, Steinberg authored SB 104, which sought to give the UFW the ability to organize farm workers by using a card-check system. Card-check allows a union to organize if a majority of employees simply sign a card. The card is then made public to the employer, the union organizers and co-workers. It’s easy to intimidate workers into signing because there’s no secret  ballot.

Brown vetoed SB 104 and said he wasn’t convinced the ALRA needed the drastic changes to the law. Brown signed California’s 1975 Agricultural Labor Relations Act into law during his first stint as governor. The ALRA provides many of the worker protections that previously needed to be negotiated in union contracts.

Political pressure

Simultaneously, while Steinberg is losing no time pushing SB 25 through the Legislature, the UFW and ALRB mandatory mediation is speeding toward a board-ordered contract, according to Gerawan.

Gerawan was in the Capitol on August 15 with a large group of farm workers who also oppose SB 25, meeting with lawmakers about the ramifications of SB 25.

“No staff or member argued that there was anything fair about the bill,” Gerawan said. “They all agreed it sounded unfair. Many Democrats seemed actually outraged over it.” However, Gerawan said there is tremendous political pressure on lawmakers from Steinberg.

Gerawan said he’s not giving up the fight. “SB 25 will put us out of business,” Gerawan said. “Out of earshot of my employees, I stepped back into the legislators’ offices when I was at the Capitol last week, and told lawmakers this.”

Gerawan said he is hopeful for a veto from Brown.

By Katy Grimes

SACRAMENTO — If a labor union-friendly bill currently working through the California Legislature is signed into law, the United Farm Workers labor union stands to triple in size.

According to peach and wine grape grower Dan Gerawan of Gerawan Farms, SB 25, by Senate President pro Tem Darrell Steinberg, D-Sacramento, would forcibly unionize his 5,000 employees along with other farm employees. And it would make the workers surrender 3 percent of their paycheck as dues to the UFW — or the workers would be fired.

Steinberg’s bill was heard in the Assembly Judiciary Committee Tuesday. Sponsored by the UFW, SB 25 is an attempt by the UFW to force the Agricultural Labor Relations Board to put its decisions into immediate effect, rather than allow an employer the right to an appeal in order to stay the decision.

According to Steinberg, SB 25 is needed because some farm employers are exploiting loopholes in the farm labor law to delay enacting contracts with unionized farm workers.

But SB 25 appears to be a direct assault on large farming operations in California. Of the 86,000 farms in the state, Steinberg said, SB 25 “will impact only about a half dozen.” And small farms of less than 25 employees would be exempted altogether.

This explains how the UFW stands to triple in size.

According to many of the state’s agriculture employers, Steinberg’s bill would allow unions to bypass the bargaining process, and  move immediately to mandatory mediation, where a state arbitrator would make all decisions.

“Not all employers are bad,” Steinberg said at the hearing.

Mandatory binding mediation