Just weeks after the United Farm Workers (UFW) union lost a case brought by its own employees over unpaid wages and overtime, the group has been celebrating a small victory after California’s agricultural labor arbitrator recently ruled against one of its longstanding adversaries – Gerawan Farming.
On Friday, Agricultural Labor Relations Board (ALRB) administrative law judge William L. Schmidt determined Gerawan had acted in bad faith in negotiations with the UFW back in 2013, and had wrongly sought to exclude employees sourced by labor contractors from union contract benefits.
Schmidt described Gerawan’s engagement with the UFW as a “time-consuming bargaining charade” and ordered the company to “cease and desist from its unlawful conduct and take certain affirmative action to remedy its unlawful conduct”.
He also said at a prior hearing Gerawan co-owner Dan Gerawan had “readily admitted his anger at the UFW’s 2012 bargaining request”, and said the executive’s anger appeared “unusually deep and long lasting”.
“It perhaps explains the motive underlying the current expenditure of what must have been enormous sums by the Gerawan enterprises opposing the UFW and seeking to rid itself of any legal obligation to deal with that organization,” Schmidt said.
However, Gerawan’s key bone to pick with the ALRB is whether it can be considered constitutional to force labor contracts on farmworkers, through what is known as ‘mandatory mediation and conciliation (MMC)’; a procedure that effectively forces cooperation with the union even though the Gerawan-UFW contract certification with the ALRB dates back to 1992.
On this point, three appellate courts have ruled in Gerawan’s favor deeming the practice unconstitutional. And more cases challenging the ALRB and the UFW are coming up in the months ahead.
The company has also slammed the use of the word ‘judge’ to describe Schmidt, highlighting he is “in-house” and “not independent”.
While Gerawan has claimed it offers industry-leading wages for its employees and accuses the union of ‘abandoning’ the workers for decades, the ALRB still adopts a “certified-until-decertified” principle to validate the UFW’s involvement with Gerawan employees.
Many workers, led by spokesperson Silvia Lopez and with public relations support from the Center for Worker Freedom – a group backed by Grover Norquist and the billionaire Koch brothers – sought to decertify Gerawan employees from the UFW by holding a vote in 2013.
However, the ALRB refused to count the votes citing claims of interference. To address this, a California Court of Appeal hearing on the board’s non-recognition of the voting process is expected in a couple of months.
In response to the most recent ALRB ruling, Gerawan lawyer David Schwarz issued a statement claiming the company did act in good faith and that it would appeal the board’s “erroneous” decision.
“This unprecedented ruling would punish an employer for failing to “negotiate” the terms of a “contract” dictated and imposed by the ALRB,” Schwarz said.
“This is an in-house judge who is not independent; he is an employee of the ALRB. He criticizes Gerawan’s positions and second-guesses how it participated in what was supposed to be a confidential mediation and trial-like arbitration, but he never asked the only relevant question: How does this forced contracting process resemble a “negotiation”?
“The so-called “mandatory mediation and conciliation” procedures (MMC) are neither consensual nor voluntary. It is forced contracting.”
Schwarz claimed the ALRB’s MMC process with Gerawan was “coercive”.
“The UFW began negotiations knowing it did not need to bargain, since it could force Gerawan into a contract, whether or not Gerawan participated in this process, or made any proposals,” he said.
“The UFW did not bargain; it asked the ALRB to impose terms, based on a forced contracting process the California Court of Appeal has since ruled to be unconstitutional (and is now under review before the California Supreme Court).”
Schwarz said the Court of Appeal was preparing to decide whether the ALRB may deny employees the right to choose who will represent them at the bargaining table, while the California Supreme Court was preparing to decide whether the UFW’s “abandonment” of Gerawan employees is a defense in the forced contracting process.
“Gerawan looks forward to a full and fair hearing as to these issues,” he said.