Farm worker decertification fight is nowhere near over

Dan Gerawan checks out plums on the line at his packing plant. Gerawan, president of Gerawan Farming, has fought off the United Farm Workers union, exposing rifts in the state board that governs labor disputes.

April 19, 2016 12:14 PM PT

It could be a long time before workers at the state’s largest tree-fruit processor get another chance to vote on whether the United Farm Workers can continue to represent them, after a state board nullified their 2013 election.

The Agricultural Labor Relations Board ruled Friday that Gerawan Farming Inc. of Fresno unlawfully assisted employees who were attempting to get rid of the UFW, which had won an election to represent the workers in 1990.

Owner Dan Gerawan and an attorney for the employee who started the decertification effort said they will ask the board to reconsider and will take the case to a state appeals court if necessary.

The anticipated appeals are likely to add substantial delay to a case that has been closely watched by the industry and labor leaders.

The decertification campaign, begun in 2013, was the largest labor action in many years — an irony for the union founded by Cesar Chavez to achieve humane treatment of farm workers.

The labor board, which was the hallmark of Gov. Jerry Brown’s first tenure in Sacramento more than 40 years ago, now finds itself spending more time on anti-union campaigns than on unionization efforts.

The case also exposed rifts between the three-member board and its general counsel, Sylvia Torres Guillen, who was chided publicly by ALRB Chairman William B. Gould IV for misunderstanding her role in handling election-related labor complaints and taking litigation positions that conflicted with the board’s responsibilities.

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Brown quietly moved Torres Guillen out of that office last year and put her on his advisory staff, amid allegations of pro-UFW bias and questionable court filings.

The Gerawan workers pick the peaches, nectarines and plums that the company packages under the Prima label.

Gerawan, the owner, said he was “disappointed but not surprised” by Friday’s decision. His attorney, David Schwarz, of Irell & Manella in Los Angeles, said he will ask the board to reconsider and take the case to an appeals court if necessary.

“I think the board ignored the facts, ignored the law and ignored the 20-year history of union abandonment” of the workers, Schwarz said.

“It’s our intention to petition for reconsideration,” said Anthony Raimondo, attorney for Gerawan Farms employee Sylvia Lopez, who started the campaign to oust the UFW. “We don’t think the employees should be punished for something the employer did wrong.”
UFW national Vice President Armando Elenes said attorneys for Gerawan and Lopez were distracting from the facts behind the decision.

“Gerawan violated the law and supported the decertification campaign by giving the petitioner a virtual sabbatical,” he said. “They’re making all this noise to distract from the fact that they got caught with their hands in the cookie jar.”

UFW’s election was certified by the ag board in 1992, but the union and management could not reach a collective bargaining agreement over the next three years. The union shifted its tactics to Sacramento; it was absent from Gerawan’s fields for more than 15 years.

Bolstered by new state laws requiring mandatory mediation of collective bargaining impasses, the UFW re-asserted its right to represent Gerawan workers in 2012, presenting a contract proposal that Gerawan rejected.

The grower accused the union of abandoning workers and of subsequently running out the clock on bargaining so that it could obtain an imposed agreement through mandatory mediation. The union denies the allegations, saying it bargained in good faith and offered agreements several times from 1995 to 2012.

Angered at the prospect of paying 3% of her gross pay in union dues, Lopez collected enough signatures to schedule a decertification vote, held in November 2013. Ballots were impounded amid allegations from the UFW and ALRB’s general counsel that Gerawan was unlawfully involved in the decertification effort and had committed other unfair labor practices.

Gerawan, meanwhile, sued the state over the mandatory mediation and conciliation law, and won a favorable decision last May from the Fifth District Court of Appeals in Fresno. That ruling, which threatens to overturn the mandatory mediation law, is under review by the state Supreme Court in Sacramento, where arguments are expected to begin in coming months.

The election case went to administrative law Judge Thomas Sobel, who heard testimony from more than 130 witnesses over nearly six months, amassing a docket that surpassed 20,000 pages.

In September, Sobel ruled that Gerawan’s involvement with the campaign made it impossible to judge whether the votes represented the true intentions of his workers. He recommended that the board invalidate the ballots. The board agreed late Friday.

In its decision issued Friday, the ALRB rejected contentions from both its general counsel and the UFW that Gerawan instigated the UFW ouster and hired Lopez to run it. The board nonetheless found that the company “unlawfully inserted itself into the campaign.”

Gerawan supported signature gathering by decertification campaigners while prohibiting UFW-related activities and granted Lopez a “virtual sabbatical” to run the campaign, the board ruled.

Gerawan also “colluded” with the California Fresh Fruit Assn., an industry trade group that paid for decertification campaigners to travel to Sacramento to rally support for counting the ballots, according to the board.

J. Antonio Barbosa, executive secretary of the board, said he was unsure how long the appeal process could take, but noted that a similar one took 17 months.

He said the board was precluded from commenting on whether a new decertification petition can be filed after an election has been rejected.