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. 

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.

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

UFW jumps the gun

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

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

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

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

Judge Brown’s explanation

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

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

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

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

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

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

Legal cherry-picking

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

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

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

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

Judge Brown explained:

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

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

Legislative intent

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

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

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

Judge Brown ruled: “The application is DENIED.”

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

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

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

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

Pleading

In its court pleading, Gerawan charged:

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

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

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

Overall dispute with the ALRB

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

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

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

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

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

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

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

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

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

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

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

Origins of the dispute

Almost two months ago, she profiled Silvia Lopez, the farm worker who was fighting UFW representation being force on Gerawan’s workers without their consent. Grimes spent half a day with Lopez and the workers when they protested at the ALRB offices and at the Capitol. “I never once saw another reporter or media person,” Grimes said.

At first, the Brown administration and the California Agricultural Relations Board resisted the workers’ pleas to allow a vote, as required by the 1975 Agricultural Labor Relations Act, as Grimes reported in another article.

The articles gained widespread readership in Sacramento and among the state’s farming community. The outcry led to the ALRB granting a vote for the Gerawan workers, as Grimes then reported on Nov. 3.

These stories were scoops, not reported elsewhere.

Finally, the Sacramento Bee is covering the controversy, quoting Lopez (pictured above).

Better late than never, I guess. But it would have been nice if they had given Grimes credit for breaking the story and keeping it alive.

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.

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.”