Under federal law, workers have as much right to leave a union as they do to form one. Yet that principle may not necessarily apply in California. For at least the past year a de facto alliance between the United Farm Workers (UFW) and a state agency, the California Agricultural Labor Relations Board, has been making it very difficult for employees of a major grower, the Fresno-based Gerawan Farming, to decertify the UFW as their bargaining agent. And the workers are signaling their frustration. On August 26, hundreds of Gerawan workers marched on the board’s Visalia regional office to demand a count of a decertification vote held last November. The board’s justification for its inaction is that Gerawan broke the law in various ways. Yet there has been no investigation of the UFW-driven allegations. Meanwhile, Democratic Governor Jerry Brown, to the surprise of many observers, in late September vetoed a bill that would have drastically expanded UFW powers.
Unions, in theory, are voluntary organizations. As with churches, fan clubs or fraternal lodges, people are free to join, remain or leave at will. Yet in practice, this is not the case. The National Labor Relations Act (NLRA), up to a point, grants coercive power to unions, such as exclusive representation at a work site and authority to demand that an employer fire workers who don’t join or pay “agency fees” in lieu of joining. At the same time, the NLRA does allow employees who are dissatisfied with their representation an opportunity to hold an election to decertify their union as a bargaining agent. Under the current bar, workers may not file for decertification within the first three years of a contract period except during a brief 30-day window of opportunity, which in most cases is between 90 and 60 days prior to expiration. After that, they are free to file at any time. Organizers of an exit campaign must draft a decertification petition and obtain employee signatures. If at least 30 percent of all workers sign, the National Labor Relations Board (NLRB) holds a secret-ballot election for the entire bargaining unit. If 50 percent of more workers vote to decertify, then the workplace ceases to be unionized. Neither the union nor the employer may interfere with such an effort.
The problem in the dispute between the United Farm Workers and Gerawan Farming is that there is no contract in force. This is causing complications for Gerawan workers who for more than two decades have been represented by the UFW. The union, founded in California’s San Joaquin Valley some 50 years ago, is not a typical labor organization. Formally, it exists to negotiate contracts with fruit and vegetable growers on behalf of farm workers. In practice, it operates as a private bank for the extended family of the union’s renowned co-founder and president, Cesar Chavez, who died in 1993. As Union Corruption Update explained back in 2006 in the context of a four-part Los Angeles Times investigative series, the union specializes in two things: 1) making costly and ethically questionable business deals through a complex web of nonprofit organizations; and 2) celebrating the memory of Cesar Chavez. Representing Gerawan workers hasn’t ranked as a priority item. Back in 1990, Gerawan employees had voted for UFW representation in an election supervised by the state’s Agricultural Labor Relations Board (ALRB). Yet other than collecting dues, it’s hard to see any tangible achievements. The union has yet to win a contract. Nor has it held any meetings beyond an early initial effort.
Last year, a group of Gerawan workers decided that they didn’t need the United Farm Workers anymore. They were confident many co-workers felt the same way. Of the current 5,000-member work force, more than 90 percent were not employed by Gerawan in 1990. Dissenters, led by a longtime Gerawan employee, Silvia Lopez, petitioned the ALRB to conduct a decertification election. Actually, they did so twice. The first petition, which Lopez turned in to the ALRB’s Visalia regional office on September 19, 2013, contained about 2,000 signatures. The office rejected it, though its director, Silas Shawver, refused to document and publish the signatures. The second petition drive, whose results she submitted to the regional office several weeks later on October 25, contained about 3,000 signatures. The office rejected that, too. In each case, Shawver cited illegal employer involvement. Gerawan workers quickly appealed to ALRB headquarters in Sacramento. And the board, unexpectedly, reversed the Visalia ruling, giving quick approval for a November 5 election. Balloting took place. Yet nobody knows the outcome. The ballots are uncounted. And the board has impounded them, pending the results of an investigation. Yet the investigation might not take place.
The ALRB, set up to mimic the National Labor Relations Board, was created in 1975 by the California legislature as part of the Agricultural Labor Relations Act (ALRA). That legislation, signed into law by Democratic Governor Jerry Brown following a decade of bitter and at times violent labor battles, authorizes the board to oversee representation elections of farm workers and investigate allegations of unfair labor practices. The board’s three members are appointed by the governor. And each member – William B. Gould IV, Genevieve Shiroma and Cathryn Rivera-Hernandez – owes his or her job to the current governor, Jerry Brown, once more at the helm after a long hiatus. Each is an outspoken advocate of union interests.
The board has been a hidden asset for the United Farm Workers in the union’s adversarial relationship with Gerawan, which sells its grapes and tree fruits under the Prima brand name. Indeed, the UFW and the Fresno grower have been locked in battle almost since the 1990 representation vote. With no contract, or even progress in obtaining one, tensions have come to a head in recent years.
The trigger was a bill introduced in December 2012 in the California legislature, known as SB25, that would subject Gerawan and six other growers to the state’s Mandatory Mediation and Conciliation Act. Drafted at the behest of the United Farm Workers, the bill would grant an outside arbitrator-mediator the authority to force a labor agreement upon an employer without the benefit of any worker input. If fully realized, the measure, advanced by Senate President Pro Tem Darrell Steinberg, D-Sacramento, himself a former union lawyer, would double and possibly triple UFW membership, while raising worker dues to 3 percent of wages. As current UFW membership is only around 6,000, way down from the salad days of the Seventies and Eighties, UFW enthusiasm is understandable. So is grower fear. Dan Gerawan, co-owner of Gerawan Farming, remarked bluntly last year: “SB 25 will put us out of business. 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.”
The measure passed the Assembly and the Senate mainly along party lines last year. Yet lo and behold, after a lengthy delay, Governor Brown vetoed it just a little over two weeks ago, on September 28. It was, after all, Brown who had signed the Agricultural Labor Relations Act nearly 40 years ago. Yet his relationship with the UFW has cooled somewhat. And on some level, he must have sensed the possible devastation upon growers. In issuing his veto, Brown, in a written statement, said that contract enforcement and labor election disputes “should be dealt with so the process is balanced and fair”; SB25 only addressed contract enforcement. “We should look at the entire process before making further changes,” Brown added.
Meanwhile, the lead Gerawan employee dissenter, Silvia Lopez, is asking the Agricultural Labor Relations Board to count the ballots. The board has maintained that the evidence for invalidating the vote is there. Lopez wants Governor Brown to intervene. “We never certified the union,” she said in an interview last year on Fresno radio station KMJ-AM. “Why do we have to certify the union? This is a question for Jerry Brown.”
Governor Brown, though belatedly, has done the right thing by vetoing SB25. That said, he seems to be shying away from any conflict with the California Agricultural Labor Relations Board, which has exhibited a pro-union tilt. ALRB General Counsel Sylvia Torres-Guillen thus far has filed fully five complaints against Gerawan, respectively, in May, August and October of 2013, and in April and September of this year. Each complaint charges Gerawan with one or more of the following offenses: failure to protect workers’ rights; illegal intervention in the campaign to decertify the union; refusal to bargain in good faith; and failure to report accurate employee information to the union. In addition to these actions, the United Farm Workers filed an unfair labor practice charge with the ALRB last December 23, alleging that Gerawan had failed to recall a number of worker leaders, including members of the negotiating committee, in retaliation for supporting the union. But these complaints might well be little more than pretexts to force membership upon unwilling workers. And the claims of employer abuse appear unwarranted.
First of all, Gerawan workers are well-compensated. That’s a matter of company policy: “Our reputation is that we always exceed industry average wages and are the first to increase wages. Employees tell us that one of the many reasons they enjoy working at Gerawan Farming is because we pay the highest wages.” The most recent available Gerawan averages for “only pack grapes (piecework),” “field labor (hourly) and pack grapes (piecework),” “only pick grapes (piecework)” and “all filed labor” are, respectively: $15.35, $12.07, $13.48 and $11.00 an hour. By contrast, the most recent California Grape & Tree Fruit League Survey indicates an average wage of $8.69 an hour. And the Fresno County Occupational Employment Statistics Survey found an average wage of $9.05 an hour. Keep in mind that the Gerawan wage scale exists without a United Farm Workers-negotiated contract in force. Oddly, the October 2013 board complaint includes a charge that the grower had taken credit for a significant pay hike for its workers without explicitly mentioning the UFW’s role in negotiations – that is, negotiations that never took place! As for farm and packaging plant safety, in each of the past five years, there were on average three unannounced Cal-OSHA state inspections. Gerawan passed each time. Indeed, over the past decade, only four safety complaints were filed with the state, all of which were found to be unsubstantiated.
Second, the Agriculture Labor Relations Board has acted more as an adjunct to the union than as an impartial adjudicator. Last fall, Assemblyman Jim Patterson, R-Fresno, minced no words in his denunciation of the union and its supporters. “The workers have been entirely ignored by the very people and political leaders supposed to be representing them,” he said. “The ALRB is a rogue agency now, entirely biased and out of control. He added that Assembly representatives from the Central Valley, such as Henry Perea and Rudy Salas, have been silent to the pleas of the dissenters. And he’s also critical of Gov. Brown. “It is the governor’s responsibility,” said Patterson. “He authored and signed the enabling legislation. It’s an absolute obligation to meet with these people. They have the right to vote.”
The latest ALRB complaint, filed this past September 9, is 28 pages long and is tantamount to an indictment. Much of it focuses on Lopez and the decertification campaign of a year ago. The complaint reads in part: “Silvia Lopez began her involvement in anti-union activities at Gerawan before she started working for the company in late June 2013.” That’s a strange point to make about someone who has been with the company for some 15 years. The complaint also alleges that Gerawan acted illegally to facilitate the decertification campaign. “Gerawan supported protest activities to decertify the UFW.” It elaborated: “In September 2012 and October 2013, Gerawan…actively recruited and encouraged employees to join in protests against the ALRB and the UFW. During this period, Gerawan’s supervisory employees cancelled work and directed workers to protests in Kerman, Visalia and Fresno in support of the decertification effort.” But the source of these allegations is the UFW. And the board has not conducted an investigation of this or other complaints.
Silvia Lopez, castigated by United Farm Workers leadership as an ethnic as well as economic traitor, is not one to back down. On February 21 of this year, she sued members and staff of the ALRB in federal court for violating the civil rights of Gerawan employees in their refusal to count the ballots. The complaint read: “The right to vote is what our democracy is about, but ALRB staff repeatedly tried to deny us our basic, constitutional right to vote. After many efforts by the Regional Director and ALRB to prevent a vote, me and thousands of my co-workers finally voted on November 5 to get rid of the UFW, but since that day, the ALRB has refused to count the ballots. Our voices remain silenced.” The suit alleges that the board has engaged in a variety of intimidation and delay tactics on behalf of the union that included:
Repeated efforts by Defendants to deny Silvia Lopez, and the thousands of her coworkers who signed petitions requesting to decertify the UFW, the right to vote.
Defendants accepting all UFW challenges to the decertification election without investigating the claims.
Defendants allowing the UFW to make changes to the election process mere hours prior to ballots being cast, potentially interfering with the results.
Defendants creating an intimidating and coercive environment while ballots were being cast.
Defendants purposefully working with the UFW in an effort to prevent the results of the decertification election from ever being made known to the employees and the public.
Defendants refusing to count the ballots and let the results be known.
Lopez’ attorney, Paul Bauer, a partner in the Fresno firm of Walter & Wilhelm, emphasized that constitutional principle is at stake. “Counting the ballots and announcing the election results are consistent with the constitutional presumption of due process and fairness. The Regional Director and other Defendants have provided no reason why the ballots cannot be counted.”
The United Farm Workers, like any union in a similar situation, is determined to keep its members. And the Agricultural Labor Relations Board, in the name of impartiality, has chosen to take the union’s charges at face value. While Governor Brown properly vetoed the indefensible SB25, he remains a tacit supporter of ALRB stonewalling. So long as union allegations of Gerawan interference even appear credible, the board will have a reason not to count those ballots from a year ago. And Gerawan workers will continue to pay dues while getting nothing in return.