California Judge Throws Out Anti-Union Election

By David Bacon
Working In These Times, 9/25/15
http://davidbaconrealitycheck.blogspot.com/2015/09/california-judge-throws-out-anti-union.html
http://inthesetimes.com/working

peaches

A California farm worker picking peaches.

FRESNO, CA — The strategy by one of the nation’s largest growers to shed its obligation to sign a contract with the United Farm Workers was dealt a key setback last week.  An administrative law judge not only threw out one of the dirtiest decertification elections in recent labor history, but did so because California growers had given tens of thousands of dollars to set the union-busting scheme in motion.

That election, at Gerawan Farming, has a key role in an even broader grower strategy to invalidate the enforcement mechanism of the state’s farm worker labor law.  Last week’s ruling seriously undermines their case, now before the state’s Supreme Court, in which they claim to be protecting workers’ democratic rights.  Instead, they have been exposed using obviously illegal methods to deny workers union representation.

The decertification election, held in November of 2013, was intended to undo the results of an earlier union election held at Gerawan Farming in 1992.  At that time, a majority of workers voted to be represented by the United Farm Workers.  That was a dirty campaign as well, and the state’s Agricultural Labor Relations Board (ALRB) made numerous legal charges against the company.  Gerawan laid off workers in 32 crews, the ALRB charged, to eliminate them from the voting list, and fired one crew because workers were UFW supporters. A state hearing officer found the company guilty of tearing down six labor camps where workers lived, to intimidate them.

Five years after that election, having exhausted legal efforts to overturn the vote, Mike Gerawan finally sat down with UFW representatives.  He told them: “I don’t want the union and I don’t need the union.”  That ended bargaining. Over the next 17 years, with no contract, Gerawan Farming grew to become one of the nation’s largest growers of grapes, peaches and nectarines, marketed under the Prima label.  Today Gerawan employs about 5,000 field workers, hiring about half through labor contractors.

Gerawan’s refusal to bargain, despite its legal obligation, was not unique among California growers.  Although the state’s farm workers won the right to vote for union representation with passage of the Agricultural Labor Relations Act in 1975, there was no effective legal mechanism that could compel growers to sign contracts.  As a result, although workers voted for the UFW in 428 farms from 1975 to 2002, they were able to negotiate contracts only in 243.

In 2002 the state legislature then passed two bills that set up a process for mandatory mediation of first-time contracts.  Once workers vote for a union, if the grower won’t sign an agreement, competing contract proposals are given to a mediator.  The mediator then decides on the provisions.  Once the Agricultural Labor Relations Board accepts the mediator’s report, it becomes a binding union contract.  Growers called the new mechanism unconstitutional but lost at the state court of appeals in 2007.

The UFW then began using the law to require growers to bargain where workers had voted for the union.  In 2012 it demanded bargaining at Gerawan, and negotiations started the following year.  While sitting down with the union’s elected negotiating committee, however, the company was actually pursuing a strategy to make those negotiations fruitless.

At the invitation of the company, a Gerawan supervisor took his girlfriend, Sylvia Lopez, to a negotiation session.  Outside the room, Lopez got together with Paul Bauer, a management lawyer.  In last week’s remarkable 192-page decision, Administrative Law Judge Mark R. Soble says, “Sylvia states that on the date of the mediation session, she decided that she was going to take on the lead role of opposing the union.”  Lopez wasn’t even working for Gerawan at the time, although she’d been an employee a few years before.

Lopez was then promptly hired, along with her two daughters – “nepotism runs rampant at Gerawan,” Soble comments drily.  “Many of the key decertification leaders or signature gatherers had immediate relatives or household members who were company supervisors or foreman.”  Later in the decision, Soble notes “Silvia admitted that she started working at Gerawan specifically to help her son-in-law [a foreman] get rid of the union.  Silvia testified that she spent more time working on the decertification effort than actually working in the fields.”

Just days after being hired, she was one of several workers taken by owner Dan Gerawan to Sacramento, to lobby legislators against further pro-worker changes to the farm labor law.  “Silvia Lopez admitted speaking out against the UFW while in Sacramento, telling Legislators that the UFW had abandoned Gerawan workers,” Soble says.

Helped by foremen, she, her daughters and friends then collected signatures on a decertification petition and filed it with the ALRB.  The regional office found that there weren’t enough signatures.  A second lawyer working for Lopez, Anthony Raimondo, then brought in an additional hundred signatures, many collected in crews for contractors that were his clients.  Some of them were found to be forged, and the petition was thrown out.  This first petition, because it didn’t lead to an election, wasn’t the subject of Soble’s decision.  Raimondo, meanwhile, is also being sued by California Rural Legal Assistance for turning an undocumented worker in to immigration authorities in the middle of a grievance hearing, in which Raimondo was opposing another union.

Immediately after the first petition was thrown out at Gerawan, Lopez and her helpers mounted a second petition drive.  In his long decision, Soble goes crew-by-crew, witness-by-witness through the testimony about how the signatures on this petition were collected.  Some witnesses he believes, some he does not, regardless of whether they are pro- or anti-union.  But at the end of 130 witnesses, testifying over the course of 105 days of hearings, his conclusions are inescapable.  In instance after instance, foremen either circulate petitions or allow Lopez and her friends to do so freely.

For over two months, “Gerawan gave Petitioner Silvia Lopez a ‘virtual sabbatical’ to facilitate circulation of the decertification petitions, with Lopez working an average of only eight hours a week compared to co-workers who were working fifty hours a week.”  Her daughter was later promoted to a lighter job as a checker, despite missing 40 of 54 days when she was collecting signatures instead of picking grapes.

Despite their heroic efforts, however, Lopez began to run out of time.  The second petition had to be filed before seasonal employment at the company dropped below its peak level.  So on September 30, 2013, she and other workers, who were also basically working fulltime on signature collecting, blocked the entrances to the ranches.  They wouldn’t let anyone go in to start work, while foremen just stood by looking on.  With the signatures she collected that day, Lopez filed the petition.

Two days later, Barry Bedwell, director of the California Grape and Tree Fruit League (now the California Fresh Fruit Association), authorized a payment of $13,348 at the request of Lopez and her growing stable of lawyers.  Another payment of $5,890 was authorized on October 31.  Both were allegedly to cover expenses in bringing workers to Sacramento and Visalia, to demand the ALRB accept the decertification petition and schedule an election.

The Board in Sacramento overruled its staff and director, who’d been investigating the issue of company domination, and ordered them to hold the election.  After voting concluded on November 5, the ballots were impounded pending a decision on the validity of the petition.  Soble’s decision last week throws out that election, on five grounds:  payments from Bedwell to Lopez, allowing her to circulate petitions instead of working, allowing her to block workers from working to get them to sign, signature gathering by supervisors, and giving workers a wage raise the day the petition was filed – just weeks before the voting.  The decision calls the actions illegal violations of California Labor Code Section 1153.

Soble also notes. “Silvia Lopez confirmed her receipt of financial support from the Center for Worker Freedom” although, because it took place after the vote, he doesn’t include it as a reason to set aside the election.

Behind the dry language of the decision is a disturbing picture.  At the time Bedwell makes the two payments, Gerawan is represented on the board of the Grape and Tree Fruit League by company vice-president George Nikolich.  Other board members include some of the biggest family names in California agriculture: Giumarra, Pandol, Bagdasarian, Zaninovich and others.  The money from Bedwell to Lopez comes from the dues these growers paid.

The demonstrations at the ALRB offices are part of a political pressure campaign to lean on the board to hold the election, and create an atmosphere for getting rid of the mandatory mediation law.  That campaign included billboards attacking the ALRB and the UFW, paid for by the Center for Worker Freedom.  This group is a project of Grover Norquist’s Americans for Tax Reform, funded by Karl Rove’s Crossroads GPS and the Koch brothers, among other conservative sources.

The Center’s director, Matt Patterson, wrote an editorial for Forbes.com, extolling Lopez and charging, “farm workers in California’s Central Valley are finding their civil liberties stripped from them today – by a government agency … [that] wants to force the union on Gerawan until the election is ‘investigated’.”

The pressure campaign is based on charging that the UFW “abandoned” the workers at Gerawan after the first election in 1992.  With this accusation, the company and its supporters simply ignore the fact that Gerawan had illegally refused to bargain for 17 years.  Lopez and other workers made the same “abandonment” charge at the demonstrations paid for by Bedwell.  “Abandonment” became the subject of a bill introduced by a Republican legislator, which would prevent unions from using past elections to invoke mandatory mediation.

Most important, the “abandonment” charge was repeated in the company’s legal case for throwing out the mandatory mediation law itself.  Ruling on Gerawan’s challenge, a conservative appeals court judge in Fresno, Associate Justice Stephen Kane, accepted the company’s argument that the UFW had “abandoned” the workers.  Legal briefs using that argument were filed by the Grape and Tree Fruit League, numerous grower organizations, and the Center for Constitutional Jurisprudence, far-right legal institute with a long track record fighting against civil and labor rights.

That appeals court decision is now before the state Supreme Court.  If the case had come before the Supreme Court thirty years ago, one of the justices deciding it would have been Cruz Reynoso, a son of farm workers.  Growers and rightwing Republicans targeted him in 1986, along with fellow justices Rose Bird and Joe Grodin.  All were recalled.

Last year Reynoso wrote a short article for the Rosenberg Foundation’s website, about the conflict at Gerawan Farming.  Dan Gerawan sent him a threatening letter in response, demanding he retract it.  Reynoso refused, and in doing so, explained the key issue at the root of the conflict.  “Had the negotiations been successful many years ago you would have had years to deal with the union,” he advised this powerful grower.  “Your employees could have talked to you through their chosen spokespersons.  The relationship could have matured and stabilized.  You are clearly a leader in agriculture.  You can set the example … What is troubling … is that your refusal to implement the contract issued by the neutral mediator and the ALRB board means your workers continue to be denied many millions of dollars in wage increases and other benefits they are already owed.”

The Right to Stay Home –
justice for migrants and sending communities –
a presentation by David Bacon in Berkeley CA on May 5, 2015
http://uslaboragainstwar.org/Article/37224/the-right-to-stay-home-justice-for-migrants-and-sending-communities

THE REALITY CHECK – David Bacon blog
http://davidbaconrealitycheck.blogspot.com

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