Court smacks down union-allied agency’s destruction of farm workers’ right to vote

By Steven Greenhut
June 27, 2018

Sacramento

One of Gov. Jerry Brown’s early acts in office during his first term in 1975 was to grant California’s farm workers the right to collectively bargain – and to create a new agency that would ensure that farm workers had the right “to full freedom of association, self-organization, and designation of representatives of their own choosing.” The law tried to ensure that agricultural laborers were free of interference and coercion from employers so that they could freely negotiate the terms of their employment. It’s hard to argue with the intent of the measure.

But as Brown finishes his fourth and final term as governor, the agency he helped form 43 years ago has morphed into a caricature of its original design. Instead of protecting the rights of farm workers to organize and choose their own representatives, the Agricultural Labor Relations Board has used its vast power to interfere with employee decisions and invalidate a particular result. Instead of respecting workers, the ALRB has patronized them and obliterated their fundamental right to a vote.

But don’t trust my conclusion. Instead, look at a ruling late last month from the Fresno-based Fifth District California Court of Appeal.  The court was asked to resolve a dispute between the United Farm Workers union and Fresno-based fruit growers, Gerawan Farming. Nearly five years ago, farm workers there held an election to decide whether to decertify the UFW as the workers’ rightful representative. But the ALRB has refused to count the ballots. It seems clear that the union-friendly agency isn’t about to decertify a union, even one that workers say has largely disappeared from the scene since it won an organizing election back in 1990, but then showed up years later demanding that they pay dues.

In 2014, a Fresno County judge declared that “it almost seems like (ALRB) is in cahoots (with the union).” Yet years later, there’s still no vote. Not long ago, an administrative law judge (ALJ) “ruled” that the agency should simply destroy the ballots. It’s been hearing after hearing, with these ALJs – i.e., bureaucrats employed by the agency during meetings that have the veneer of a judicial proceeding – issuing agency-friendly rulings that frustrate the will of the voters. The system as it now operates is the opposite of what the original act promised.

They alleged that the farm workers’ employer, which pays some of the highest wages and best benefits in that industry and region, were involved in a variety of “unfair labor practices.” Who decides? Officials who seem to have an affinity for unions. Who mediates the dispute? Administrative law judges who work for those officials, at least until it winds its way to the courts. This is an agency that once subpoenaed the owner of the farming company, Dan Gerawan, and questioned why his company bused workers to the state Capitol to oppose legislation that gave the ALRB the power to simply impose an unwanted contract on them.

Obviously, the agency’s leadership needs some lessons in how a democratic system works. Yes, workers have a constitutional right to speak out at legislative hearings in the Capitol. They also have the statutory right to vote on the representation. The bill they came to Sacramento oppose further removed them from the negotiating process. The agency wanted – and gained – the right to impose working conditions on these workers without any of their input. So much for the vaunted language of the California Labor Relations Act, which promised workers representation of their “own choosing” – rather than a cram down from those who think they know what’s best for them.

The matter ultimately made its way into the real court system, rather than the ALRB’s kangaroo version. In a 3-0 decision, the Court of Appeal overturned the decertification decision and called on the board to reconsider its preferred “remedy” of destroying the ballots. “Having reviewed the entire record, we conclude that several of the unfair labor practice findings relied on by the board were unsupported by the record as a whole,” the court ruled. That’s putting it kindly.

“Unfortunately, the board was apparently so zealous to punish this employer, it lost sight of the importance of the election itself under the (Agricultural Labor Relations Act), 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 workers’ freedom of choice in the election,” the court added. The ALRB has until July 2 to decide whether to appeal the decision to the California Supreme Court.

An appeal is not necessarily a slam-dunk decision, despite the agency’s determination, so far, to destroy ballots that almost certainly will contain results that it doesn’t want to see. In a separate case, Gerawan Farming had challenged the right of a state agency to impose a contract on a private employer – an idea rejected by an appeals court, but affirmed in a 7-0 vote by the state Supreme Court. Gerawan is appealing that decision to the U.S. Supreme Court, but this case would be moot if ALRB decides not to challenge its ability to shred ballots. In other words, if the agency fears losing its ability to impose contracts, it might not push the Gerawan decertification case because it would keep the matter alive and relevant at the nation’s highest court.

The California Supreme Court’s decision noted that the agency’s ability to impose a contract is not problematic because employees have the right to decertify a union’s representation. But that creates a conundrum. Workers can decertify a union in theory, but only if the agency doesn’t destroy their ballots if it doesn’t like the expected result (or comes up allegations of unfair labor practices). The agency shouldn’t be able to have it both ways: an ability to undemocratically impose its will on workers and the right to nullify any decertification votes.

On the ALRB website, there’s no sign of this far-reaching court rebuke. Instead, its home page features its own various decisions rebuking Gerawan Farming and justifying their lack of ballot counting. On the same day that the appeals court sided with Gerawan and the farm workers, the ALRB issued yet another pro-union edict from one of its so-called “judges”: “The administrative law judge (‘ALJ’) found that Gerawan Farming, Inc. (the Employer) violated section 1153 (a) and (e) of the Agricultural Labor Relations Act (ALRA) by failing to provide certain necessary and relevant information to the United Farm Workers of America (UFW).” ALRB might want to update its website.

It’s a shame that one of Brown’s lasting legacies will not be his admirable creation of an agency designed to protect farm workers’ rights – but his indifference as that same agency turned into a vehicle to frustrate and deny these workers the ability to make their own collective-bargaining choices free from intimidation, condescension and coercion.

Note: California Policy Center’s state director for the California Local Elected Officials (CLEO) Matt Patterson was involved in efforts to decertify the union at Gerawan Farming.

Steven Greenhut is contributing editor for the California Policy Center. He is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

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