May 31, 2018

Appellate Court to ALRB: Count The Gerawan Workers’ Votes

In a unanimous 138-page opinion issued on May 30, 2018, the Fifth District Court of Appeal vacated the Agricultural Labor Relations Board’s (ALRB) decision to dismiss the decertification petition and set aside the election of Gerawan Farming Inc.’s workers and directed the Board to tally the workers’ ballots that it ordered impounded over four years ago.

Western Growers’ President and CEO Tom Nassif praised the court’s decision.

“For over four years, these employees have asked the ALRB for just one simple thing – to have their votes counted. A state appellate court has now ordered the Board to count their votes. Rather than extending the four-plus years of farmworker disenfranchisement by appealing to the state Supreme Court, the Governor should direct his appointees at the ALRB to accept this ruling and tally the farmworkers’ votes without further delay.”

Western Growers, California Farm Bureau Federation, California Fresh Fruit Association and Ventura County Agricultural Association filed an amicus curiae (“friend of the court”) brief in the case.

After the UFW reemerged after a nearly two decade disappearance, the Gerawan workers filed a petition for decertification and an election was held on November 5, 2013, in which thousands of employees cast their votes by secret ballot. However, the ALRB ordered the workers’ ballots be impounded while objections to the election were resolved. After a 105-day hearing, an ALRB Administrative Law Judge found, and the ALRB agreed, that employer “misconduct” so tainted the election results that the election must be set aside.

On appeal, the court disagreed, finding the Board “was apparently so zealous to punish this employer, it lost sight of the importance of the election itself under the ALRA, and embraced a one-sided approach to the issues that unnecessarily disenfranchised the workers without any meaningful consideration of whether the employer’s conduct reasonably impacted the worker’s freedom of choice in the election.”

The court went on to say, “[a]ccordingly, the failure to provide a vote tally should be corrected by the Board, and the tally and size of the margin of victory should be weighed as a significant factor in its reconsideration of the election question on remand.”