Fruit grower tries to challenge mandatory mediation law in state court
By David Bacon
Al Jazeera America, January 16, 2015 5:00AM ET
http://america.aljazeera.com/articles/2015/1/16/grapes-of-wrath-cafarmworkersfighttounionize.html
Jose Dolores, a Gerawan Farming worker
FRESNO, Calif. - When Jose Dolores began picking grapes at Gerawan Farming in California's San Joaquin Valley in 1990, the company was paying a little over the state minimum wage of $4.25 an hour. "We just weren't making enough, and everything cost a lot. That's why people wanted the union," he recalls.
Dolores was one of over 1,000 workers at Gerawan that year, when its workers voted for the United Farm Workers union to represent them. But they didn't get any further. Mike Gerawan, one of the company's owners, repeatedly challenged the validity of the union vote. The one time he met with the UFW he said, "I don't want the union, and I don't need the union."
That effectively ended bargaining on a contract, which union reps believe would have provided better working conditions and more protection for the laborers. Mike Gerawan declined to comment, but in a statement, the company publicist, Erin Shaw, blames the union for the stalled efforts: "The UFW abandoned Gerawan employees without ever negotiating a collective bargaining agreement." Over the years, with no contract, Gerawan Farms grew to become one of the nation's largest growers, with more than 5,000 workers.
It was only in 2012, after a new state law on mandatory mediation was implemented, that the UFW was able to go back to Gerawan to demand a renewal of the talks. While the company did meet with the union, it also attempted to have the UFW removed as the representative of the workers. Even more importantly, it is challenging the constitutionality of the law in state court.
Losing this fight could have devastating consequences for the UFW and, indirectly, for farmworker unions in other states, since it would make it much more difficult for workers to get growers to agree on a contract. No real union can survive indefinitely without being able to win contracts and thus being able to gain members and make substantial changes in wages and conditions.
Federal law has never covered farmworkers, and outside of California, no state has a law giving farmworkers a legal process for recognition and bargaining. Those few union agreements that exist outside the state have been the product of yearslong campaigns and boycotts. As a result, only a tiny percentage of the nation's farmworkers have union contracts, and wages and conditions in farm labor are worse than in almost any other occupation.
California, however, has been able to use state legislation to address grower intransigence. If it works, the example may spread, which is why other growers are watching this case closely.
According to Philip Martin, professor of agricultural and resource economics at the University of California, Davis, workers were unable to win agreements at 253 of 428 farms where they'd voted for the UFW between 1975, when the Agricultural Labor Relations Act went into effect, and 2002. That year Democratic Gov. Gray Davis signed two bills that allow unions to ask for a mediator if a grower won't agree on a first-time contract. The mediator is chosen from a list provided by the state government. The mediator's report, once adopted by the Agricultural Labor Relations Board, becomes the contract. Growers have already challenged the mandatory-mediation law once, but lost in the state court of appeals in 2006. It is this decision that Gerawan is now trying to reverse.
Union leaders say Gerawan Farming was never neutral toward its workers' efforts to organize. After the original vote, the ALRB issued two complaints against the company for laying off workers in 32 crews to eliminate them from the list of voters in the union election and for firing one crew because its workers were UFW supporters. An ALRB hearing officer found the company guilty of tearing down six labor camps to intimidate workers.
Agustin Rodriguez, a grape picker at Gerawan, was among those elected to the union negotiating committee when the UFW renewed its demand for bargaining two years ago. But "the company was never willing to negotiate in good faith," he says.
Though the UFW was able to force Gerawan to negotiate using the state law, the company says the report issued by the mediator does not constitute a negotiated agreement. Rodriguez rejects this, saying that the company refuses to implement the contract the two sides negotiated with the help of the mediator. He believes the company made proposals designed to sabotage negotiations. For instance, it sought to exclude approximately 2,000 workers employed through labor contractors. "Right now the company pays them $9 an hour," Rodriguez explains. "In a union contract they'd earn the same wage we do - $11 for direct employees."
In addition, he says, Gerawan has a medical plan, but of the 5,000 workers only 13 actually have it. No one can afford it, but it looks good on paper.
In the Coachella Valley, Baldemar Zacarias does the hard work of picking grapes.
The ALRB - which is responsible for holding elections, enforcing the union rights of farmworkers and administering the mandatory-mediation law - has issued a series of complaints over the years against Gerawan. It says the grower has "unlawfully coerced, restrained and interfered with its employees" by illegally threatening workers, changing their working conditions to discourage union activity, trying to get rid of the union, bargaining in bad faith and more.
In a formal complaint issued last October, the agency's regional director in the central valley town of Visalia, Silas Shawver, and its general counsel, Sylvia Torres-Guillén, charged that Gerawan tried "to undermine the UFW's status as its employees' bargaining representative; to turn its employees against the union; to promote decertification of the UFW; and to prevent the UFW from ever representing its employees under a collective bargaining agreement."
Gerawan has raised pay incrementally over the past two years to bring the hourly wage up from the then-state minimum of $8 (it is now $9) to $11. It was an effort "to convince people not to join the union," says Severino Salas, who has worked at Gerawan as a picker for the past 15 years. "But it's the pressure from the union that made them do it," he believes.
According to the ALRB, in June 2013, Gerawan rehired Silvia Lopez, a worker who was already involved in "anti-union activities" and whose boyfriend was a company supervisor. Almost immediately, Paul Bauer, a lawyer who frequently works for employers in labor disputes, started advising her on "how to decertify the UFW as the collective-bargaining representative at Gerawan."
Lopez began to collect signatures on a petition in an effort to remove the UFW as the workers' representative. By law a company cannot assist in such efforts. But Lopez and her associates had the run of Gerawan's vineyards and orchards and collected signatures during work hours, the ALRB says.
Salas recalls that some of the pro-company workers said that if Gerawan Farming had to sign a union contract, it would tear out some of the grapevines or trees so pickers wouldn't have any work. "Then they did uproot some of them, and a lot of people got scared," he says, "...for fear of losing their jobs."
Jose Gonzalez, an employee who did not want to reveal his identity for fear of retaliation, adds, that when the petitions were passed around, the crews that didn't sign "didn't have any more work. Or they'd put them to work in the mud, in fields they'd just irrigated."
In August the labor board issued a complaint against the company, charging it with sponsoring the signature collecting. The petition was thrown out because many signatures had been forged. Supervisors blocked workers from the fields if they didn't sign a second petition, the board says, and then took them to a grower-sponsored demonstration against the ALRB.
The ALRB finally held an election in which workers could vote to decertify the UFW, though the ballots have been impounded while the labor board investigates charges that the company illegally sponsored the decertification effort. Gerawan Farming refused to implement the mediator's report, and then asked the state court in conservative Fresno to declare mandatory mediation unconstitutional. Joining it were the state's preeminent grower organizations: Western Growers Association, the California Farm Bureau Federation and the California Grape and Tree Fruit League.
Right-wing parties, including the Center for Constitutional Jurisprudence, a far-right legal institute, are also throwing their weight behind this appeal. Support for Gerawan is coming from the Center for Worker Freedom, a subsidiary of the conservative advocacy group Americans for Tax Reform, which is funded by Karl Rove's Crossroads GPS and the Koch brothers. The Center for Worker Freedom has helped organize publicity for the drive to get rid of the UFW and for the appeals of the mandatory mediation law.
In June 2014 former California Supreme Court Justice Cruz Reynoso co-authored an op-ed with UFW President Arturo Rodriguez for the Rosenberg Foundation's website, describing the history of worker organizing at Gerawan. After seeing the op-ed, Mike Gerawan's brother Dan Gerawan sent Reynoso a threatening eight-page letter. "Many or most of our employees do not want this contract, and want nothing to do with the UFW," Gerawan wrote, demanding that Reynoso "disavow authorship of the article" or "retract these defamatory statements." In his reply, Reynoso declined politely and urged Gerawan to negotiate a contract with his workers.
Agustin Rodriguez hasn't lost faith, but he wonders why the process hasn't worked so far. "The company has a lot of money - enough to draw out the process so that people will get desperate and discouraged," he says. But Gerawan "must be made to respect the law and to give us justice."
Dolores says that despite the wage increases, the workers' situation hasn't really changed. "I went to work there when I was 30, and now I'm 54 and I'm still poor. I just have enough money to buy tortillas and pay the rent."
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