Date: Aug 01, 2014
August 2014-Western Grower Ag Legal Network

Dan Gerawan was opening his mail one day in October 2012 and came across a letter from a representative of the United Farm Workers.  In the letter, the UFW representative noted that the union was the “certified bargaining representative” of all of Gerawan Farming’s agricultural employees, and set forth a list of documents and information it was requesting, ranging from detailed employee information to maps of Gerawan’s farming locations.  The UFW representative suggested that negotiations begin in early December.

Dan talked to his father Ray and brother Mike and they searched their memories about the election and legal disputes that had occurred back in the early 1990s.  They realized they had not heard a thing from the UFW after a single negotiation session nearly 20 years earlier.

The UFW had intervened on another union’s election petition and won the subsequent runoff election in 1990.  In 1992, the Agricultural Labor Relations Board certified the UFW as the exclusive bargaining representative of Gerawan Farming’s field employees.  Soon thereafter, the UFW sent a letter to Gerawan Farming requesting negotiations.  Gerawan Farming immediately responded, asked the UFW to send its proposal and invited the UFW to begin discussions about moving forward with negotiations.

Then nothing.  The UFW waited two years to again request negotiations in 1994.  Gerawan Farming again promptly responded.  The parties met and the UFW delivered a boiler plate contract proposal that contained very little that was relevant to Gerawan Farming’s stone fruit and table grape operations.  At Gerawan Farming’s request, the UFW agreed to submit a new, relevant, proposal.

Then nothing, but this time for another 18 years.  No letters nor any other communications from the UFW.  No unfair labor practices filed by the UFW.  No access taken by the UFW.  No inquiries on behalf of employees by the UFW.  The decade and the century ended with the UFW making no contact with Gerawan Farming and not engaging in any conduct which can even remotely be considered as performing its legal obligation to represent Gerawan Farming’s employees.

In 2003, the Agricultural Labor Relations Act received its first and most substantial amendment since its enactment in 1975 when the comprehensive Mandatory Mediation and Conciliation (MMC) provisions were signed into law by Governor Gray Davis.  The MMC provisions were intended to provide a speedy resolution to stalled negotiations (blamed on the employers) by having an outside party determine what the labor contract should provide, including wages and benefits, as well as provisions concerning seniority and other working conditions.  The “mediator” was directed to spend 30 days trying to narrow the issues with the parties, and then, taking on the role of an arbitrator, decide whatever issues remain.  For certifications existing before 2003, all a union had to do was submit a declaration setting forth when it was certified, a statement that the parties had negotiated for at least a year without reaching a contract, and that the employer had been found to have committed at least one unfair labor practice.  Even when the UFW was provided with this unique opportunity that no union has in any other industry or state, the union did nothing on behalf of the Gerawan Farming employees for another 10 years.  Then Dan Gerawan received that letter in October 2012.

While the information that the UFW requested was being gathered for the thousands of direct-hire and farm labor contracting employees that had worked for Gerawan Farming throughout the year, Ray Gerawan and his two sons sent a response to the UFW representative asking an obvious and simple question:  “Where have you been for the last two decades?”  The UFW’s response?  “We don’t have to tell you.”

There are other employers that have received such letters from the UFW and have received similar responses when asked where have they been for the past 20 years.  And many others may be wondering if and when they will ever get such a letter.

As for the UFW taking the position that it does not have to explain its prolonged abandonment of employees, so far the Agricultural Labor Relations Board has agreed.  The ALRB has repeatedly taken the position that since a certified union remains the bargaining representative unless and until it is decertified by the employees, the ALRB will not recognize any argument that a union can lose its right to represent the employees because it has abandoned them, regardless of how long or complete the abandonment is.

In the case of the Gerawan Farming employees, the vast majority of whom were not working for the company during the 1990 election, it meant finding out that they were represented by a union they had never known during the off-season when UFW representatives started contacting them at their homes and announcing that the union was representing them in negotiations.  The employees soon learned that also meant that the UFW would seek contract provisions requiring them to pay 3 percent of their gross wages as union dues or fees, or be subject to termination.  When the UFW and Gerawan Farming began negotiating, employees began trying to find out what their rights were and soon discovered that until the harvest began, they could not even ask for an election to determine whether they wanted the UFW to represent them.

After several negotiation sessions, during which the UFW had never even made an economic proposal, the UFW made an application to invoke the MMC provisions.  Gerawan Farming questioned how the MMC process could be invoked since the parties had certainly not been engaged in actual bargaining for a year, either back in the early 1990s or following the UFW’s reemergence.  The company also questioned how unfair labor practice violations occurring before the UFW was certified could meet the requirements of the MMC provisions.  The ALRB found that the mere passage of a year, whether bargaining had occurred or not, was sufficient, and that any unfair labor practice was sufficient for MMC purposes.

Once the MMC meetings in front of the mediator began, employees who were not happy with being forced to be represented by the UFW attempted to attend the sessions, but were turned away by the mediator and the ALRB.  As the harvest began in earnest, employees started gathering petitions to seek an opportunity to vote on whether they wanted to be represented by the UFW.  When more than 2,500 signatures were delivered to the ALRB, far more than the required 50 percent then working, the regional director dismissed the petition based on unproven allegations of employer interference.  Not to be turned away, the employees engaged in work stoppages and protests involving hundreds, and in one case, well over a thousand employees — at the company’s worksite as well as at the ALRB’s offices.  State and national media began taking an interest in what appeared to be a state agency shutting the doors on farm workers it was created to protect.  The employees obtained completely new signed petitions and delivered them to the regional director again.  Again, the ALRB’s regional director tried to dismiss or block the election.  It was not until the board of the ALRB finally ordered the regional director to conduct the election, and to cease his attempts to block it, that the election occurred in early November 2013.  However, the board ruled that the ballots should be impounded pending the outcome of the general counsel’s and the regional director’s investigation concerning the election petition, and a hearing to determine whether the ballots should be opened.  Eight months later, the general counsel’s investigation remains unfinished and the ballots remain unopened, despite the fact that election matters are supposed to receive priority.

In the meantime, the MMC procedures were moving forward and the mediator issued his report concerning what the terms of the contract between the UFW and Gerawan Farming should be.  After resolving some issues arising from the report, the ALRB approved it just before the election, which meant the employees knew what the contract would be before they voted.  The MMC contract has not been implemented while Gerawan Farming seeks review from the court of appeal, as provided by the statute.  Despite having the right to request that the court review the MMC contract, in two separate instances, one by the UFW in the Sacramento Superior Court and one by the ALRB general counsel in the Fresno Superior Court, there have been attempts to obtain court orders requiring Gerawan Farming to implement the MMC contract even while the Court of Appeal decides whether to review it.  Western Growers and many other agricultural associations have submitted briefs in support of Gerawan Farming’s constitutional and procedural challenges to the MMC contract as well as to the ALRB’s rulings on the MMC provisions themselves.

Much more will need to be written about the legal issues and arguments involved once the cases are no longer pending.  Other growers have met fates similar to Gerawan Farming’s, or are involved in the process after having the UFW wake from its decades long slumber and sending a letter to them.  Until then, the legal battles continue, and thousands of employees wonder why a law that was designed to protect their rights is being used by the UFW and the general counsel to prevent them from enjoying that most basic right…their right to vote and have their ballots counted.


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