(AP Photo/Eric Risberg, File)

Labor groups have sought out relationships with Uber drivers, whom the company recently settled with, but has yet to classify as employees.

“A day after Uber announced a $100 million settlement with some drivers in California and Massachusetts,  the Teamsters announced plans to form an association for workers in California’s ride-hailing industry,” USA Today reported. “The Teamsters said drivers had approached the transportation union seeking help with benefits, a dispute resolution procedure, legal and tax services, advocacy assistance, and a stronger voice on the job,” the paper added, although the way such assistance would be organizationally formalized remained unclear. “Members would probably not join the actual union, but would instead join an association, which could possibly be funded, though not controlled, by Uber.”

Crunching the numbers

So long as Uber and its fellow ride-share companies stay away from the employer-employee model, unionization would be off the table. “One problematic aspect for the Teamsters is that Uber and Lyft drivers are still classified as independent contractors,” as Fortune noted. “As a result, these workers would not be able to form a traditional union. Instead they would have to form an association, which would have limited bargaining abilities and be allowed to speak on the behalf of drivers.”

For that reason, Uber was willing to shell out substantial cash in its California and Massachusetts settlements — “up $84 million,” as the Verge observed, plus “another $16 million if the company eventually goes public.”

“In exchange, Uber gets to keep its business model — drivers are ‘partners’ with the flexibility to make their own schedules, but lacking access to traditional benefits like health care — which has helped fuel its growth across the world, as well as its other worldly valuation of $62.5 billion –€” making it the most valuable technology startup on the planet.”

“If the lawsuit had gone to trial, and a jury decided that drivers indeed deserved to be full employees, then Uber could have suddenly found itself responsible for all sorts of extra costs, from Social Security payments to minimum wage requirements,” the Verge suggested. But while some Uber drivers have hoped for more benefits, some analysts have questioned whether Uber could sustain itself at all without relying on its unusual business model. 

More hurdles

And in California, the settlement will not become law without clearing at least one more hurdle. “Uber’s settlement depends on the approval of a single judge,” Forbes noted. “This is by no means a foregone conclusion, as Uber’s rival Lyft learned earlier in April when Judge Chhabria rejected its $12.25 million settlement of a similar class action. Among other reasons given for the rejection, the amount Lyft would pay was ‘glaringly’ inadequate monetarily, did not provide sufficient payment to the state of California under the Private Attorney General Act claim, and the non-monetary relief, which did not meet one of the lawsuit’s primary goals of reclassifying drivers as employees, was insufficient to overcome these problems.”

At the same time, according to the site, the state’s Private Attorney General Act could allow future suits by “unions such as the International Brotherhood of Teamsters, which continues to attempt to organize Uber drivers in California and in the state of Washington,” or “the U.S. Department of Labor and the National Labor Relations Board, which have made clear their skepticism of the independent contractor model and intention to allow organization by misclassified employees.”

In fact, this March, the NLRB already sued Uber in a San Francisco federal court, “demanding it obey subpoenas related to five unfair labor practices cases,” as Politico reported. “And just last week an NLRB regional director filed a complaint against a Los Angeles company for allegedly misclassifying its trucking workers as independent contractors. That gives the board an opportunity to rule that misclassifying workers is an unfair labor practice, an issue with obvious relevance to Uber.”

Confronted with an impending hike to $15 in the California minimum wage, businesses, labor advocates and political analysts have all begun to shift strategies and tactics. Given current trends, the combined impact could be a smaller, more unionized workforce — that doesn’t always see the benefits wage activists have promised.

The consequences will be quick and could be dramatic. “Most state raises over the past decade, when there have been any, ranged from 1 percent to 3 percent annually. The law Gov. Jerry Brown signed will increase bottom-rung pay roughly 10 percent per year starting in January,” as the Sacramento Bee reported.

Manufacturing flight

One immediate result of the hikes has already appeared in Southern California, where the garment industry faces an especially rough road. Sung Won Sohn, former director of apparel company Forever 21 and economist at Cal State Channel Islands, told the Los Angeles Times a veritable “exodus has begun,” with manufacturers already tempted to shift garment production overseas to retreat from the Golden State still further. “The garment industry is gradually shrinking and that trend will likely continue.”

“In the 1990s, as borders opened up, foreign competitors began snatching up business from Southland garment factories. Eventually, many big brands opted to leave the region in favor of cheaper locales. Guess Jeans, which epitomized a sexy California look, moved production to Mexico and South America. Just a few years ago, premium denim maker Hudson Jeans began shifting manufacturing to Mexico. Jeff Mirvis, owner of MGT Industries in Los Angeles, said outsourcing was necessary to keep up with low-cost rivals.”

The problem, particularly acute for business owners who can’t automate jobs as readily as, say, fast food restauranteurs, was encapsulated by Gov. Jerry Brown himself, who signed the $15 wage into law despite clear reservations about its economic wisdom. “Economically, minimum wages may not make sense,” he said, defending the law on moral and sociopolitical grounds. A high minimum wage, Brown claimed, “binds the community together and makes sure that parents can take care of their kids in a much more satisfactory way.”

Incentives in tension

According to critics of the change, the tension involved in using poor economic choices to encourage good moral ones has driven labor unions themselves toward a predictable, if hypocritical, shift in their own policy objectives. Many of the same unions that agitated for a higher wage “have been quietly — and often successfully — lobbying cities to let employers who hire union workers pay them less than the mandated minimum,” as Quartz observed. “Unions say it gives them the flexibility to negotiate packages for their workers that supplant wages with health insurance and other benefits.

“Critics say that it’s a shrewd move by unions to drive up membership dues and ensure that their workers are the cheapest in town. The exemption gives cost-conscious employers little choice but to hire union, and workers who want jobs little choice but to join their local.”

At the same time, however, workers who have been rallied to the $15 cause have been swiftly pressed into service for pro-unionization demonstrations. “The demand from the original strikes in 2012 was $15 and a union,” said Mary Kay Henry, international president of the SEIU, according to the Times. “Underpaid workers in California are now on a path to $15, but we think the way we can make these jobs good jobs […] is through a union.”

In an added twist, some economists defending the wage hikes have raised the question of whether subsequent job losses are a price worth paying. Gov. Brown, in fact, has referred favorably to that view. “We understand that this can be difficult,” he said, as the Washington Post recalled. “But the fact is that there’s a principle called the living family wage, which is a doctrine that has been around for a long time, since probably before the 1900s, which is that you can’t expect someone to work if the wages for that work can’t support a family.”

Division and disagreement

Falling victim to their extreme dominance in statewide politics, an increasing number of Democrats have sharpened their blades against one another this election season — driving uncomfortable wedges between minority groups that have long formed the bedrock of the Democrats’ broad coalition. “The racial and ethnic overtones of politics in California, the country’s most diverse state, surfaced again last week,” the Sacramento Bee observed. “Two Democratic Assembly incumbents, Mike Gipson and Cheryl Brown, both of whom are black, are facing challenges from Latina opponents within their own party.”

“The challenges to Brown and Gipson are motivated by their stances on environmental legislation, not race. But the prospect of unseating two black incumbents, with African Americans’ share of the state’s population dwindling, stirred concern.”

Elsewhere, some Democrats have found themselves in hot water for departing too far or too often from party orthodoxy — a dangerous move in increasingly partisan and populist times. In California’s 7th District, for instance, Rep. Ami Bera has begun to lose key support within his own party, thanks to votes roiling labor and other elements of California Democrats’ liberal base. “Bera’s votes on issues such as Syria refugees and trade are coming under intense examination as local Democrats debate withholding endorsement from him in his re-election race against Sacramento County Sheriff Scott Jones, a Republican,” McClatchy reported. “Last week, the Elk Grove-South County Democratic Club, Bera’s home club, voted against endorsing him.”

Brown’s balancing act

In his State of the State speech this month, Gov. Jerry Brown sought to ameliorate some intraparty divides while holding fast to others. “Legislative Democrats say they can spend some of California’s budget surplus on expanded government services without disrupting Gov. Jerry Brown’s push for fiscal restraint,” as the Sacramento Bee also reported, while Brown urged them “instead to focus on paying down debts and liabilities incurred in the past.” But Brown didn’t mention the multibillion-dollar high-speed rail project that has been one of his marquee projects, despite arousing the frustration of environmentalists to his left who believed cap-and-trade money should not be spent on the system.

A recent Field poll revealed that a modest but sharply critical segment of Democrats appear to have turned their backs on Brown. Fully 17 percent said a description of Brown as having “the right experience to deal with the problems facing California” applied “not at all,” while 18 percent took the same dim view of the claim that Brown “has the vision to lead California into the future.” At the same time, over 40 percent of Democrat respondents agreed at least somewhat with the idea that Brown favors too many unaffordable projects and isn’t doing enough to help average Californians.

But Brown has consolidated support, despite sometimes unorthodox policies, to an unprecedented degree in California politics. At a time when Democrats nationwide have become increasingly split over whether to embrace Hillary Clinton as their nominee, Brown’s name has perennially appeared in conversations about where they might look for an alternative to both Clinton and Sanders. Despite Brown’s refusal to play along, he has been floated once again — by New York City liberals, according to Hoover Institution fellow Bill Whalen. “Their pet conspiracy theory is that President Barack Obama so detests Hillary Clinton — and worries about her ability to win in November and preserve his agenda — that his Justice Department will indict her this spring on charges of breaching national security in the email scandal,” he wrote at the Sacramento Bee. “Exit a wounded Hillary, enter a prominent Democrat to rescue the party — none other than California’s governor.”

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. 

In an interview with Southern California Public Radio station 89.3 KPCC, one professor familiar with the strategy described an investment of energy with high stakes and, so far, low returns. Kent Wong, director of UCLA’s Center for Labor Research and Education, told KPCC there now are more union organizing campaigns in California than in any other state. Car-wash workers and home-care workers, the station reported, had been successfully unionized according to a model now being exported to other cities across the country.

The report goes on to detail unions’ broad-strokes plans to experiment and expand further in California: “One California organizing strategy has been to pitch union commitment to more than just a bigger paycheck.” That means aligning the union brand with so-called “broader social concerns,” including those relevant to “faith communities and neighborhood groups.”

The specific issues unions have planned to center on may not come as a surprise to many, however. Immigration and minimum wage policy have already been associated closely with a union agenda. With political power shifting away from unions, however, their aims may have shifted too, with a new stress on being strengthened by non-union partnerships.

Education battles

Where possible, unions have made a determined push in California to protect their interests and make new inroads. Education has shaped up as a virtual ground zero for those activities. To begin with, teachers unions have followed Gov. Jerry Brown and state Attorney General Kamala Harris in challenging the ruling in the landmark Vergara case, which held unions’ teacher tenure protections to violate students’ constitutional rights. In a filing with the 2nd District Court of Appeal, the California Federation of Teachers joined the California Teachers Association in calling the decision “without support in law or fact.”

Meanwhile, this year the CTA identified charter schools for the first time as a focus of its strategic planning. Unions have made little progress, but the National Education Association — which counts the CTA as its biggest state affiliate — recently offered some support, sending its new president to two California charters.

Lily Eskelson Garcia dropped in on two small charter schools sharing a campus in Alameda, both of which are unionized. Although the first charter schools were unionized in Los Angeles and other cities back in 2009, as Education Week reports, an anticipated spike in further unionizations never materialized; in fact, the percentage of charter schools that have been unionized has declined by 5 percent from 2009 to 2012.

Turning against Democrats

In its fight to regain the initiative, the CTA has sometimes found itself playing defense against its own frequent allies. Eyebrows were raised in Sacramento early this month when the CTA joined Service Employees International Union to torpedo SB52, a major piece of campaign finance legislation known as the California DISCLOSE Act.

Backed by hundreds of left-leaning groups, the bill was opposed only by the conservative Howard Jarvis Taxpayers Association and labor unions. According to The Huffington Post, the CTA argued SB52 imposed costly reporting requirements that would hurt smaller campaigns — and, reportedly, that it would violate free speech laws. DISCLOSURE Act backers dismissed those concerns as farfetched.

Few victories

California has handed unions at least one possible opening, however. Late last month, the 9th Circuit Court of Appeals held that FedEx had improperly classified its Northern California employees as “independent contractors.”

That gives unions a potential chance to hunt for members among a new group of workers. But with labor strategy in California hinging on the fate of embattled teachers unions, these kinds of small opportunities may be too few and far between to make a difference.

Brown just signed today, SB 776 by Sen. Ellen Corbett, D-San Leandro, which will eliminate independent monitoring and enforcement of prevailing wage laws.

Not surprisingly, the bill was written and sponsored by the State Building and Construction Trades Council of California, a powerful labor union labor whose members are often on the receiving end of fines and penalties for back wages.

The targeted independent compliance group, the California Construction Compliance Group, is a  non-profit organization that promotes free, open and vigorous competition in the building and construction industry. On its website, the CCCG explains that it does this “through monitoring, enforcing and evaluating changes to prevailing wage and apprenticeship laws in an effort to promote equal opportunity among prevailing wage contractors.” Until today, the CCCG has done this through independent compliance audits and follow up enforcement of the prevailing wages laws by building contractors.

The audits hold contractors accountable to state labor laws, and ensure workers are paid the appropriate wage for the hours they work, even if this is done through an audit and back wages. CCCG has conducted more than 230 company audits on a variety of projects across the state including schools, civic centers, parking garages and a myriad of other projects.

“SB 776 is designed to impede efforts to ensure construction workers are paid appropriately and treated fairly with regard to California’s prevailing wage laws,” said Philip Piel, Chairman of the California Construction Compliance Group, in a statement today. “While it is unfortunate that partisan politics favoring special interests would shield cheating contractors in California, we will continue to work within the new guidelines to hold bad employers accountable no matter who they are. SB 776 does not prohibit our organization from fulfilling its mission and we will comply with the new guidelines.”

It is not unexpected that Brown signed SB 776 — he and the bill’s author, Sen. Corbett, are friends of labor unions. Even the “Ellen Corbett for Congress” campaign website reports it is “Computer Generated / Labor Donated.”

“This is a total union overreach and is only being done because we are non-union,” said John Loudon, Executive Director of the CCCG when I spoke with him last week.

The CCCG has recovered more than $400,000 in back wages for more than 130 workers, and has been crucial to eliminating the underground construction economy, where workers can be illegally underpaid, and placed in dangerous jobs by unscrupulous contractors.

“We look forward to working with the State of California, Division of Labor Standards Enforcement to identify and combat abuse of California prevailing wage law for the workers that build our roads, schools and other public works projects,” said Piel.

But don’t hold your breath for friendly relations with the DLSE it in union-dominated California — a bill like SB 776 only emboldens the bad actors, and allows the professional bureaucrats in state government to further avoid accountability.

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.

SB 776, authored by Sen. Ellen Corbett, D-San Leandro, but written and sponsored by the union labor group State Building and Construction Trades Council of California, appears to be an effort to eliminate monitoring and enforcing prevailing wage laws through independent compliance audits and the enforcement of building contractors.

The targeted independent compliance group, the California Construction Compliance Group, is a  non-profit organization that promotes free, open and vigorous competition in the building and construction industry. On its website, the CCCG explains that it does this “through monitoring, enforcing and evaluating changes to prevailing wage and apprenticeship laws in an effort to promote equal opportunity among prevailing wage contractors.”

Fast tracked since it was introduced February 22, SB 776 already sits on Gov. Jerry Brown’s desk awaiting his signature or veto.

SB 776 passed the Senate Labor and Industrial Relations Committee easily. Then the Senate passed Corbett’s bill 24-10, along party lines.

The Assembly Labor and Employment Committee passed SB 776 easily in a 5-2 vote, as did the Assembly Appropriations Committee, 12-5. The Assembly then passed the bill 52-23, also along party lines.

I called Gov. Brown’s office and asked if the governor has a position on SB 776 yet. His office has been quiet on this union-friendly bill.

“The Governor has until August 27^th to act on this bill,” reported Jim Evans, a spokesman for Brown. “We will definitely let you know when he takes action.”

 Targeted attack

“Honest contractors, workers, and taxpayers benefit from the work of the Construction Compliance Group, a labor compliance equalizer,” said John Loudon, executive director of the California Construction Compliance Group.

The bill’s author, Corbett, is a liberal Democrat running for Congress. Some say Corbett needs to take out moderate Democratic incumbent, Rep. Eric Swalwell, D-Pleasanton, which will require huge union support. Corbett thus far is behind in the money race.

But Corbett is a friend of labor unions. Even her “Ellen Corbett for Congress” campaign website reports it is “Computer Generated / Labor Donated.”

“This is a total union overreach and is only being done because we are non-union,” said Loudon. “We have recovered over $400,000 for workers, most recently over $13,000 from one union glazer-window installer.”

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

By Katy Grimes

Without SB 25, the United Farm Workers union is going to need to make tough reforms to survive. By state Senate President Pro Tem Darrell Steinberg, D-Sacramento, the bill would grant the UFW advantages that no other union in California has, such as forcing employers into repeated mediation. And this is a very union-friendly state.

Opponents say California’s 1975 Agricultural Labor Relations Act, signed into law by Gov. Jerry Brown during his first stint as governor, remains adequate. It granted broad new rights to laborers and has stood the test of time.

In a way, the UFW is a victim of its own success. The years of suffering and protesting under legendary founder Cesar Chavez, who now has a state holiday honoring him on March 31, paid off with the ALRA. It provides many of the worker protections that previously needed to be negotiated in union contracts.

To succeed, Chavez needed only the ALRA, not SB 25.

Chavez died in 1993. And as often happens after a charismatic leader departs, the organization he animated struggles to remain relevant. According to the UFW’s Form LM-2 Labor Organization Annual Report filed with the U.S. Department of Labor on April 10, 2013, as of Dec. 31, 2012 the union had only 4,443 members.

According to a January 2012 article in The Nation magazine, “Cesar Chavez and the Farmworkers: What Went Wrong?,” the union boasted “50,000 members at the end of the 1970s.” So it has declined by more than 90 percent. By contrast, today the California Teachers Association lists 325,000 members. 

The article in The Nation, a liberal magazine, quoted Frank Bardacke, the author of a recent book on Chavez and the UFW. “The UFW had no locals,” he said of the union’s problems. “That was a tremendous mistake. There’s no substitute for face to face debate, people having direct control over their local union affairs. That’s the way you build strength.”

SB 25 detailss

Sponsored by the UAW itself, SB 25 would let the union continue its complacency while artificially boosting its numbers. It passed the state Senate on May 6. But last week the bill was killed by the Assembly Labor and Employment Committee because it could not get enough votes to pass.

Committee Chairman Assemblyman Roger Hernandez, D-West Covina, allowed reconsideration of the bill. It will be heard Wednesday, June 26, in that committee.

SB 25 proposes to make dramatic changes to the mandatory mediation process added in 2002 as amendments to the ALRA. Among other things, it would:

* Force privately owned and family farms to fire farm workers who fail or refuse to pay union dues for jobs they’ve held for years.

* Remove the one-time limit on mandatory mediation when there is a labor dispute. Doing so would allow unlimited demands for mediation that would have to be met. Here’s the specific wording in SB 25, “Deletes the requirement of existing law that, for labor organizations certified after January 1, 2003, the mandatory mediation process would only apply for an initial request to bargain.” (Underline in original.)

“This bill would close legal loopholes and stop cynical games growers play to deny their farm workers the life-changing protections of union contract [sic],” said the UFW on its Website.

Opponents of SB 25 say the perpetual mediation would be a weapon so powerful that there would no longer be a need to negotiate with the UFW, only capitulate.

Democratic doubts

Many Democrats from agricultural districts are beginning to have doubts about a bill that likely would kill jobs in there areas. Unlike prosperous Sacramento and Silicon Valley, California’s farm belt only now is beginning to recover from the Great Recession.

These Democratic doubts have alarmed the UFW. “Democratic members of that committee—Assemblymembers Chris Holden and Luis Alejo—chose not to vote for SB 25!” the UFW exclaimed on its Website. “Assemblymember Holden has said he will vote for it next week when the bill will be heard again on June 26, but Assemblymember Alejo still has not responded.” Holden represents Pasadena.

Alejo did not vote on the bill, which caused quite an uproar in Salinas, his home turf. And as I reported Monday, Alejo has clashed with the union over attempts by its own workers to negotiate better labor contracts.

Alejo told the Salinas Californian he had concerns about SB 25 and had reached out to the union prior to the hearing. “We had a meeting set up for Tuesday [June 18, prior to the bill vote] and [the UFW] canceled,” Alejo said. Shortly after the vote, the UFW was protesting at Alejo’s Capitol office.

Affect on farmers

“Once a contract is imposed on our workers, it will double or even triple the size of the UFW’s current membership,” Dan Gerawan told me; he’s the president of Gerawan Farming, a family-owned business in Reedley which employs more than 5,000 farm workers. “So, more than half of the UFW’s membership will never have been given the opportunity to express whether they even want the UFW to represent them.”

He said the timing of SB 25 is not a coincidence. If his workers are forcibly organized under SB 25, the union’s current membership of 4,443 would more than double, to more than 9,443.

“And with perpetual mediation being a possibility under SB 25, my employees may never have that opportunity to vote, yet will have to pay 3 percent of their wages [as dues] or lose their jobs.”

Gerawan said the UFW tried to organize his workers 23 years ago. After only one bargaining session, the UFW abandoned the workers and the process.

Gerawan said that recent amendments to SB 25 have not changed the essential part that the UFW never has to bargain in good faith, or even bargain at all, before it makes the demand to negotiate. “The amendment does nothing to make it so workers have an opportunity to ratify or reject a contract, despite the fact the contracts will require them to pay dues or lose their jobs,” Gerawan said.

“This is just plain wrong,” he testified recently before the Assembly Labor and Employment Committee. “We aren’t talking about a few dozen workers. We’re talking about thousands of the industry’s highest paid, happiest employees having a union forced on them without ever getting the chance to vote.”

Gerawan said his farming company pays high wages and benefits, including retirement, vacation pay and even the tuition for the workers’ children at the local Catholic St. La Salle School. (YouTube of Sr. Lucy, the principal, below.)