California Court Says Farm Worker Ballots Must Be Counted

Counting votes shouldn’t be a tall order for a union, even for the highly reluctant United Farm Workers. But the union now must change its ways. Last Wednesday, May 30, a California appeals court ruled 3-0 that the state’s Agricultural Labor Relations Board must count votes cast in 2013 by employees of a large grower, Gerawan Farming Co., over whether to decertify the union as its bargaining agent. The “nonpartisan” ALRB, the UFW’s de facto partner, had impounded the ballots. According to the court, the board’s allegations of unfair labor practices by Gerawan were “unsupported by the record as a whole.” The UFW vows to appeal the case to the State Supreme Court while continuing to collect dues payments and giving back nothing in return.

When it comes to using the political system to protect and expand economic turf, the United Farm Workers has few rivals in organized labor. The union has been at it for a long time. The UFW emerged as a force during the Sixties in California’s San Joaquin Valley, led by the aggressively charismatic Dolores Huerta and Cesar Chavez. The union organized strikes and consumer boycotts of California lettuce and grapes in an effort to win recognition as a bargaining agent for tens of thousands of first- and second-generation Mexican farm laborers. The UFW achieved a political victory in 1975, when California lawmakers passed the Agricultural Labor Relations Act which once and future Governor Jerry Brown signed into law.

Among other things, the new law created the Agricultural Labor Relations Board (ALRB), a three-member entity modeled after the National Labor Relations Board and overseen by the California Labor and Workforce Development Agency. The ALRB supervises farm worker representation elections and investigates allegations of unfair labor practices. Its proclaimed mission is to “ensure peace in the fields of California by guaranteeing justice for all agricultural workers and stability in agricultural labor relations.” In practice, justice and stability mean doing the bidding of the United Farm Workers, a union with no local affiliates and no discernible interest in collective bargaining. As NLPC noted in 2006 and in 2014, the UFW’s main achievements have been: 1) conducting costly and ethically questionable business deals through nonprofit front groups; and 2) celebrating the life of Cesar Chavez. The union is little more than a government-subsidized patronage machine run by extended family members and friends of Chavez, who died in 1993. And it is steeped in ethnic chauvinism; its logo features the black Aztec eagle. A growing number of union members have grown tired of paying dues and getting ignored. Net attrition has been high. United Farm Workers membership peaked in 1973 at 60,000 and is now down to around 5,000, about one percent of the state’s agricultural labor force. But the union has a secret weapon in the ALRB.

The California Agricultural Labor Relations Board, despite its nonpartisan billing, for decades has operated as an enforcer for the United Farm Workers, and no more so than when existing union members want to leave. Back in November 2013, Gerawan workers, represented for many years by the UFW without the benefit of a contract, conducted a vote over whether to decertify their union as a bargaining agent. The ALRB was legally required to count the votes. Instead, the board impounded the ballots on the shaky pretext that Gerawan and the California Fresh Fruit Association had engaged in unfair labor practices. In August 2014, hundreds of frustrated Gerawan employees marched on the ALRB’s regional office in Visalia to demand a ballot count, hand-delivering a petition with hundreds of signatures.

Growers, like their employees, were at a political disadvantage. Back in 2012, the California Assembly had introduced a bill, SB25, that would subject Gerawan Farming and about a half-dozen other growers to a third-party conciliator armed with the power to force contracts on them. No solicitation of worker opinions would be needed for action. The legislation would have at least doubled the UFW’s flagging membership, while raising dues payments to three percent of wages. Dan Gerawan, co-owner of the Reedley (Fresno County), Calif.-based Gerawan Farming, a grape and peach grower, was blunt: “SB25 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 Assembly and the Senate each passed the measure, but after a lengthy delay, Democratic Governor Jerry Brown vetoed it in September 2014. “This bill only addresses contract enforcement,” he wrote the California Senate. “We should look at the entire process before making further changes.”

SB25 didn’t make it onto the books, but then again it didn’t have to. In September 2014, the month of his SB25 veto, Governor Brown signed legislation, AB1897, that would hold growers liable for unfair labor practices of subcontractors. In September 2015, an ALRB administrative law judge ruled that the decertification election should be set aside. That same month, lawmakers also passed AB1513, pursuant to a pair of state appellate court decisions in 2013 (Gonzalez v. Downtown LA Motors and Bluford v. Safeway Stores) forcing growers to compensate “piece rate” workers, a category that covered fruit pickers, for back pay for nonproductive work time. Signed by Governor Brown that October, the law put growers on the hook for an estimated $200 million. And in November 2017, the California Supreme Court imposed continued UFW membership on Gerawan workers via arbitration and reconciliation.

These measures might have been avoided had the Agricultural Labor Relations Board actually been doing its designated job, which assuredly is not running interference on behalf of the United Farm Workers. But the UFW and the ALRB effectively were the same entity – another example of what economists call “regulatory capture.” That raises the question of who sits on the board and why are California political leaders afraid to challenge them. Each of the three present members, in fact, are textbook examples of the adage, “Personnel is policy.” And they make for bad policy.

The most outspoken member of the farm labor board is Isadore Hall III, appointed by Governor Brown last year. A former Compton city council member, state assemblyman and state senator, Hall lost a close race for U.S. Representative for the 44th Congressional District against Nanette Barragan in 2016. Lacking any discernible background in agriculture, he managed to win his slot on the basis of black identity politics and Old School street pressure. On the eve of his confirmation, Hall reportedly issued violent threats against certain fruit growers who were set to testify against his confirmation. In a letter to colleagues, Sen. Andy Vidak (R-Hanford) stated how he personally heard from witnesses to a confrontation created and escalated by Hall at a bar at a Hyatt hotel in Sacramento. Hall, said Vidak, launched into “an obscenity-laced tirade” and “threatened to use his position to ‘get’ several farmers who oppose his confirmation.” Hall allegedly told the group: “Are you the motherfuckers here to testify against me tomorrow? I have a memory and I am going to get you.”

Hall’s outburst was too much even for the Los Angeles Times, which called his appointment “shameful” and a symptom of a “loathsome” system of cronyism. Yet supporters in the California Senate brushed off the incident. Senator Ben Hueso (San Diego) claimed that critics of Isadore Hall were motivated by “hate” and “racism.” Senator Holly Mitchell (Los Angeles and Culver City) claimed the threats were a private matter that had no bearing on his fitness to hold office. Senate President Pro Tempore Kevin De Leon (Los Angeles), called Hall a “friend” and used his position to block an investigation. He explained, “It is not practice to review or investigate barroom conversations.” De Leon is engaging in wishful thinking here. Hall issued a criminal threat. He was not trying to strike up a “conversation” with anyone. The California Senate eventually approved Hall’s nomination.

The two other members of the agriculture board are not much of an improvement. Chairwoman Genevieve Shiroma, originally appointed in 1999 by then-Democratic Governor Gray Davis, arrived with a background as a regulatory specialist at the California Air Resources Board. And Board Member Cathryn Rivera-Hernandez, originally appointed by Governor Davis in 2002, at one point prior to that had served as editor-in-chief of the La Raza Law Journal, a publication of the radical National Council of La Raza (recently rechristened “UnidosUS”). All three members effectively work as United Farm Workers officials. One ALRB whistleblower, testifying at Shiroma’s confirmation hearing before the California Senate Rules Committee, stated: “Genevieve Shiroma worked tirelessly to force workers into the union. And Cathryn Hernandez is trying to fire me for what I know. They’ve been in cahoots for decades.” A dissenting farm worker, identified as “Mr. Garcia,” expressed his opposition to Shiroma this way (in Spanish, translated into English):

I’m against Shiroma because the whole time that we’ve been doing large protests, they have always denied us their help. A lot of corruption has been seen…And we always feel intimidated because when we started the protests they would not attend to us. We feel humiliated and discriminated because at first, when we started they were ignoring us. And now this whole time they’ve been saying that we are ignorant for fighting for our rights.”

Genevieve Shiroma has a glaring conflict of interest. A longtime United Farm Workers lobbyist, Richie Ross, previously had been a paid consultant for Shiroma’s campaigns for the Sacramento Municipal Utility Board. Ross goes way back. He got his start in the union during its fledgling years (he knew Cesar Chavez personally) and had been a UFW organizer before moving into lobbying. The Sacramento Bee says of him, “Ross is best known in Sacramento as a campaign consultant for many of California’s highest-ranking Democrats and a longtime lobbyist and ally of the United Farm Workers.” An adjunct professor at California State University, Sacramento, Ross has praised the late Abbie Hoffman’s 1971 tome, Steal This Book as “an anarchistic survival guide to defying capitalism and the American status quo.” It was Richie Ross, in fact, who persuaded then-Senate President Pro Tempore (and current Sacramento Mayor) Darrell Steinberg to introduce SB25, which as described earlier, would have forced union membership upon large numbers of farm workers.

Top administrators at the Agricultural Labor Relations Board also have heavily overlapping curriculum vitae. ALRB Executive Secretary Santiago Avila-Gomez previously had worked at the California Rural Legal Assistance Foundation (CLRA), a statewide nonprofit group that promotes Third World mass immigration and amnesty. The board’s general counsel, Julia Montgomery, appointed by Governor Brown in March 2016, had been staff attorney, directing attorney and managing attorney for the CLRA. After that, she served as a counsel at the California Department of Fair Employment and Housing. Chris Schneider, head of the ALRB’s Visalia office, is a former United Farm Workers attorney who got his start in the Seventies while as a teen as a UFW organizer. Like Avila-Gomez and Montgomery, he’s a former attorney with the CLRA. Schneider’s predecessor in Visalia, Silas Shawver, left the CLRA amid conflict-of-interest allegations and is now ALRB deputy general counsel. Two employees in the ALRB’s office in Oxnard also came from the CLRA. And former ALRB Assistant General Counsel Alegria de la Cruz, before that had been a CLRA attorney; her parents and grandparents were employees of the United Farm Workers.

The California Agricultural Labor Relations Board, put simply, is part of an insular, revolving-door network of radical activists whose unstated mission is to promote the interests of United Farm Workers leadership above the interests of the workers whom the UFW supposedly represents. It’s not as if opponents have remained mute. Republican Assemblyman Jim Patterson, former mayor of Fresno, has called for an FBI investigation into ALRB activity. In a 2017 interview with Fresno radio talk show host Ray Appleton, he remarked: “The ALRB is criminally involved in efforts to force workers to join the UFW,” adding that a probe could lead to “criminal charges against Governor Brown.” Another critic, Tal Cloud, an activist working on behalf of dissenting union members, offered this explanation last year as to why workers don’t complain: “Nobody wants to anger the Democrats in Sacramento because they have to work with them on a number of other issues.”

Things are now a little different. A three-judge panel on the California state appeals court last Wednesday unanimously ruled that the unfair labor practice charges filed by the ALRB and the union against Gerawan were groundless. “Having reviewed the entire record,” noted the court in its 138-page decision, “we conclude that several of the unfair labor practice findings relied on by the Board were unsupported by the record as a whole. This alone would warrant returning the case to the Board to reconsider its remedy.” The board was so focused on punishing the employer, emphasized the panel, that it lost sight of the “value of protecting the farmworkers’ right to choose, which was and is a fundamental part of the Board’s mission.”

The United Farm Workers, predictably, is disappointed but believes it will prevail. “The Appeals Court pro-grower rulings have been unanimously overturned three times in the past year by the California Supreme Court because they ignored well-established rules of law,” said Armando Elenes, UFW’s third vice president. “The United Farm Workers plan to seek a review of this decision with the State Supreme Court and is confident it will also be overturned and that farm workers’ rights will be respected.” Farm workers have a different perspective. Jessie Rojas, a spokesman for a dissenting workers group, Pick Justice, called the ruling “a huge victory.” He asserted that the union is nothing more than a political front group representing a tiny fraction of all farmworkers. “The United Farm Workers knows for a fact that if those ballots are counted, they will lose their certification,” he told National Legal and Policy Center. “What’s more, the union is falsely claiming that the State Supreme Court mediation mandate prevents a ballot count. In fact, the Court admitted in its own opinion that the workers had the right to decertify.” Rojas added that the UFW, ironically, has committed unfair labor practices against its own organizers. Last October, Monterey County Superior Court Judge Thomas Wills awarded these former employees $1.3 million in back wages, penalties and attorneys’ fees as compensation for labor violations going back a number of years.

The Agricultural Labor Relations Board continues to ignore its public mission. A mix of radicalism and cronyism, the board functions as an arm of the United Farm Workers, a political action committee masquerading as a union. The board, the union and their allies will continue to meet with little resistance as long as California politics remains captive to their intimidation. These activists, despite their proclaimed solidarity with farmworkers, are interested in money and power. Gerawan workers unwillingly are financing this gambit through dues payments. It’s time to count those votes already.