The bill’s sponsor, Assemblywoman Lorena Gonzalez, took to Twitter to show her exuberance, especially after having been named in Politico’s national list of 50 “thinkers, doers and visionaries transforming American politics in 2016,” which called the San Diego Democrat a “progressive ideas lab” (partially for this bill).

Si se pudo! Farmworker overtime!!! We did it @UFWupdates! Thank you to the leadership in both houses & this Gov! https://t.co/GPe0t9tY0T

— Lorena Gonzalez (@LorenaSGonzalez) September 12, 2016

Farmworkers currently earn overtime pay past 60 hours in a work week and past 10 hours in a work day. But starting in 2019, the threshold will lower incrementally until 2022 when workers will earn time-and-a-half pay beyond 40 hours in a week and eight hours in a day under the new law.

Contentious debate

Democratic supporters often argued that passing this measure was a matter of “fairness,” while detractors, mostly Republicans, said farming isn’t like other professions, as it’s susceptible to uncertainty caused by weather delays, perishable goods, seasonal schedules and external price setting. 

“It’s the same old story of a government that is out of touch with the reality of living, working and doing business in California,” Assemblyman James Gallagher, R-Nicolaus, said in a statement.

“If you understand agriculture, you know that this new law will result in lost wages for farm workers,” added Gallagher, who is a partner in his family’s farming business. “There are no real winners with AB1066.”

The matter wasn’t a simple partisan issue, though. Many Democrats either voted against or didn’t vote earlier this year when the measure was defeated.

But through a controversial procedural gimmick known as a “gut and amend,” which circumvents the chamber’s rules, Gonzalez was able to bring the bill back to life. And, with the help of the United Farm Workers, she rallied enough Democratic support for passage.

Of course, even that wasn’t so simple. Days before passage, Gonzalez had brought UFW members to the Capitol for an early morning show of support and to watch the vote from the galleries.

However, there still wasn’t enough support and Gonzalez and Assembly Speaker Anthony Rendon suffered an embarrassment when the floor session ended without a vote. But after proponents spent the next few days whipping votes, the measure passed.

Democratic Assemblymembers Susan Eggman of Stockton, Jacqui Irwin of Thousand Oaks, Marc Levine of San Rafael and Jim Wood of Healdsburg did not vote.

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

Gerawan Farming

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

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

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

A staff shakeup commenced in the months following the complaint.

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

An ALRB official declined to comment on the departures.

Petition for Investigation

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

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

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

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

Gerawan Background

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

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

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

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

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

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

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

Whistleblower Allegations

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

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

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

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

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

Departures from the Board

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Secretive ALRB Refuses to Answer Questions

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

****

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

Gerawan Farming

In a turnabout for California’s storied history of migrant labor, Latino field hands are fighting to get the United Farm Workers, the union that carries on the legacy of founder Cesar Chavez, out of their lives and pockets.

If the workers prevail, they would deprive the UFW of thousands of members, not to mention a bounty of union dues, and send a powerful anti-union message nationwide. 

But they could well lose. The union appears to have the support of putatively impartial state labor referees who have not hidden their pro-union sympathies. And with more than half of its official membership at stake in the dispute, the union has plenty of incentive to fight after decades of decline.

At issue is 2013 balloting aimed at decertifying the union as the legal representative of the roughly 5,000 laborers at Gerawan Farming, the nation’s largest peach grower.

An administrative judge for the state’s Agricultural Labor Relations Board (ALRB) is expected to issue a decision any day on whether to count the ballots, which have been locked in an agency safe, or destroy them.

The union says vote tampering and intimidation spoiled the ballots.

The state board, mandated to safeguard farmworker rights, investigated the claims but found no substantiating evidence on which to act. Even so, the board’s Office of General Counsel has led a legal battle to destroy the ballots instead of counting them.

“It’s California’s version of the old South’s Jim Crow laws, to keep uppity Latino farmworkers in their place,” says Silvia Lopez, 39, a Mexican-born field laborer who is fighting to save and count each vote. Lopez was brought to California by her parents when she was 3. In recent years she has gathered petition signatures and held meetings to protect the farmworkers’ right to decide for themselves whether to be represented by a union.

Sylvia Lopez

“We just want the right to choose. We make more money and have better benefits without a union, by working with our employer,” Lopez says. The union has alleged that Lopez is a tool of her employer, but courts have found no merit to the accusation.

By law, the Agricultural Labor Relations Board must be impartial between employers and unions in defending the rights of farmworkers. State judges who have presided over hearings and civil trials in the dispute have been critical of the board. A superior court judge criticized the board in 2013 for being “in cahoots” with the union. Last month, a three-judge appeals court found that the union had abandoned the Gerawan workers for more than 17 years, failing to represent them, until it “suddenly reappeared on the scene” in 2012.

After its return, the union demanded a contract requiring the workers to pay 3 percent of their pretax wages or lose their jobs. The union, Lopez said, offered nothing in return.

Her main complaint with the union, which many of her colleagues shared, is that it did nothing for them in the nearly two decades after their predecessors voted to certify the UFW as their collective bargaining representative.

Located in the San Joaquin Valley, near Fresno, Gerawan has about 9,000 acres under cultivation in three principal locations. The workers pick and pack apricots, grapes, nectarines, peaches and plums.

Gerawan and Lopez say that the base pay for field workers is $11 an hour, or $2 an hour more than the California minimum wage. More highly skilled laborers can earn twice as much. Lopez says that workers at three nearby farms who are represented by the UFW earn less than minimum wage after the union deducts its dues.

Lopez and her daughters circulated petitions to ask the labor relations board to host a vote among Gerawan farmworkers to decertify the absentee union as their legal representative.

Top lawyer built pro-union team

The board’s top lawyer, Sylvia Torres-Guillen, has replaced long-serving civil service attorneys with activists loyal to the union in the nearly four years since she was appointed general counsel by Gov. Jerry Brown.

She also moved to take advantage of a 2003 law empowering the board to force union contracts on employers and employees if they are unable through mediation to come to an agreement.

“The state and the union are working together to force the union on us,” says Lopez. A three-judge state appeals court unanimously agreed in May, and struck down that provision of the law as unconstitutional. Torres-Guillen’s office said it plans to appeal.

Gerawan attorneys and farmworkers who have been involved with litigation against the ALRB say they expect the administrative judge, Mark Soble, to order the ballots destroyed. Gerawan’s attorney said the company is expecting a decision at any time.

Soble declined to comment.

Transcripts show that Soble presided over a series of hearings about the Gerawan case, in which Torres-Guillen’s attorneys and the union attorney seemed to act as co-prosecutors against Gerawan Farming employers and anti-union employees.

Searches of social network sites show board attorneys to be die-hard union supporters. Facebook pages feature photos of board lawyers wearing union badges and shirts and participating in the union’s street protects. Others show board lawyers, including Torres-Guillen, hugging the union lawyer and a union organizer in a thumbs-up celebration.

Silas Shawver is the board’s regional director in Visalia, near Fresno, and has been Torres-Guillen’s point man on the Gerawan dispute. Asked about a photo showing him wearing a union shirt, Shawver said, “If that thing exists, it was a long time before I ever worked for the ALRB, and I don’t know that I ever had a UFW T-shirt.”

Asked whether the board’s attorneys can be impartial, Shawver said, “What do you mean by impartiality?”

In 2013, according to court records, Shawver alleged that hundreds of signatures on petitions for a vote on the union were forgeries and that Gerawan had coerced the workers into signing. Lopez came back with more than 2,900 signatures. By this time, both Gerawan and farmworker Lupe Garcia had filed separate lawsuits against the board to prevent it from imposing a union contract on them.

Shawver’s conduct prompted California Superior Court Judge Jeffrey Y. Hamilton Jr., to call the board’s motives into question.“It almost seems like it’s in cahoots” with the union, Hamilton told Shawver at an August 2013 hearing. He chided the board lawyer: “You have a responsibility, unlike an advocate for one side, to bring out all of the evidence, not just evidence that is supportive of the union. And it appears to the Court that’s what you’re doing.”

Asked if the “union activists who have been hired as ALRB attorneys” present a conflict of interest that might compromise the impartiality of the board, Torres-Guillen said, “Oh, I don’t see that at all.”

Court records and news reports from the summer and fall of 2013 show that board lawyers threw up roadblocks to prevent the decertification vote. When the three-person ALRB board in Sacramento overruled its lawyers and permitted the vote to take place in November 2013, Lopez and others say, Shawver supervised the board staffers to herd 600 workers aside on voting day. They also prevented some workers from casting ballots after the union alleged that the “real” workers had been fired and Gerawan had hired new workers under false identities to tilt the outcome.

UFW logo

After the election, the board collected the ballots but refused to count the votes. Its lawyers have sought since then to destroy the ballots. The board’s proposed budget shows that the agency asked for more money through 2016 for its work on the Gerawan case. The board will have spent $7.5 million through 2016 to investigate and litigate the case, equal to about $3,000 per ballot cast, according to an analysis by the Sacramento-based firm MB Public Affairs commissioned by Gerawan Farming.

At its peak in the 1960s under Chavez, the union claimed more than 50,000 members. By 2012, the union had 3,329 active members plus 1,052 retired members, according to its annual report to the U.S. Department of Labor.

“The UFW can double its membership overnight if the ALRB counts the employees’ ballots and find that a majority want the union,” said Dan Gerawan, co-owner of Gerawan Farming. “I suspect both believe the union will lose that vote, which is why they are trying to destroy the ballots.”

Without a contract, Gerawan workers did not pay dues to the union, and their membership was not reflected in the official numbers the union reported to the U.S. Department of Labor. However, in 2013 the union reported a spike to 9,076 active and 1,130 retired members, without a commensurate increase in revenue from dues, leading to speculation that the union was trying to claim Gerawan workers on its rolls.

After Soble issues a recommendation, the matter goes to the full board.

The board, however, is no rubber stamp. Gov. Brown surprised supporters and opponents alike last year when he vetoed legislation that would have given the general counsel more power. He also named an internationally-renowned labor lawyer and scholar, William B. Gould IV, to chair the board. Previously, Gould served as chairman of the National Labor Relations Board in Washington.

Gould, in decades of academic and legal writings, has supported the right of workers to vote on whether they want to be represented by a union. That principle puts the 79-year-old Gould, at the twilight of a distinguished labor career, at loggerheads with the activist attorneys he leads but does not command.

Earlier this year, Gould led the three-member board to limit some of the general counsel’s expanding powers, requiring “case specific authorization” from the board before seeking injunctions against allegedly unfair labor practices.

ALRB board members did not respond to requests for comment. The board’s Acting Executive Secretary, Paul M. Starkey, said it is the board’s policy not to comment “on pending matters before the board for decision or matters in litigation.”

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

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

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

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

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

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

Calculated pro-labor power play

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

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

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

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

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

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

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

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

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

Gerawan workers back management, not union

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

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

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

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

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

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

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

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

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

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

Millions of dollars hang in the balance

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

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

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

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

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

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

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

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

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

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

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

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

A landmark controversy

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

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

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

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

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

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

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

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

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

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

Gerawan Farming

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

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

Silvia Lopez

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

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

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

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

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

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

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

Help farm workers

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

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

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

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

ALRB

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

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

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

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

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

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

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

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

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

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

Targeting successful agriculture

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

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

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

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

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

Back to the future

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

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

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

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

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

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

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

 Legislative target

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

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

Card-check

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

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

Political pressure

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

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

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

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

Gerawan said he is hopeful for a veto from Brown.

By Katy Grimes

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

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

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

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

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

This explains how the UFW stands to triple in size.

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

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

Mandatory binding mediation