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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gerawan Farming

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

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

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

A staff shakeup commenced in the months following the complaint.

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

An ALRB official declined to comment on the departures.

Petition for Investigation

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

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

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

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

Gerawan Background

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

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

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

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

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

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

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

Whistleblower Allegations

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

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

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

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

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

Departures from the Board

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Secretive ALRB Refuses to Answer Questions

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

****

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

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

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

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

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

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

Calculated pro-labor power play

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

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

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

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

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

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

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

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

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

Gerawan workers back management, not union

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

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

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

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

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

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

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

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

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

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

Millions of dollars hang in the balance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A political storm brews

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

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

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

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

Big implications

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

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

For a year we have reported on the farm workers for Gerawan putting up with high-handedness, bureaucratic delay and abuse by state labor officials. The workers entered into a contract with the United Farm Workers 20 years ago. But the UFW failed to do anything for the workers, so the workers want a divorce.

The union is a shadow of what it was under famed founder Cesar Chavez, who died in 1993. The workers don’t want to pay high dues for nothing. But the Brown administration officials have sided with the union.

The workers now are led by Silvia Lopez, featured in the nearby picture in front of Gov. Jerry Brown’s office.

According to an announcement by Americans for Tax Reform, which is siding with the workers:

Ms. Lopez will speak at a protest held at the ALRB regional offices in Visalia beginning at 3:00 p.m. today, August 26.  Supporters of the United Farm Workers were also expected to have a presence, though Center for Worker Freedom Executive Director Matt Patterson says he hopes the proceedings will unfold without incident.

“The Gerawan workers have a positive message that they want to deliver peacefully: They just want their votes counted,” said Patterson. “We hope the union, and the ALRB, will allow Ms. Lopez and her colleagues to speak their mind.”

Lopez is also challenging the ALRB in court, suing individual board members including Genevieve Shiroma, Cathryn Rivera-Hernandez, and J. Antonio Barbosa in Federal District Court for violating her First and Fourteenth Amendment rights. 

Lopez attorney Paul J. Bauer explained:

“In order to protect the rights of the farmworkers, we filed a lawsuit in federal court against the ALRB board members and regional director for violating their civil rights.  The farmworkers’ due process rights and First Amendment rights are being trampled by a group of people that will stop at nothing to keep the votes from being counted.”

Recently U.S. District Court Judge Lawrence J. O’Neill allowed the suit to move forward.

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.

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.