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State judge: Gerawan is guilty of bad-faith bargaining & illegally excluding some of its workers from the benefits of a union contract

Judge admonishes company’s ‘extreme’ ‘self-serving’ philosophy

A blistering 60-page decision issued Friday (April 14, 2017) by a state administrative judge found Gerawan Farming Inc. guilty of refusing to bargain in good faith with the United Farm Workers during 2013 and of illegally excluding from union contract benefits Gerawan employees supplied by farm labor contractors (Page 52).

Affected by the decision from Agricultural Labor Relations Board (ALRB) Administrative Law Judge William L. Schmidt are approximately 5,000 Gerawan workers who were directly hired by the company that year (P. 10). Also impacted are an additional 800 to 1,500 workers hired through Gerawan’s farm labor contractors (P. 10). The family-owned company, operating on “about 12,000 acres (about 19 square miles) of farmland in Fresno and Madera counties,” is considered “the largest stone [tree] fruit producer in the United States” (P.10).  (All quotes and page citations are from the judge’s decision, which can be read in its entirety at http://action.ufw.org/alj41417 )

Judge Schmidt’s ruling invoked the state farm labor law’s “make whole” remedy, ordering Gerawan to make its workers whole for the increased wages and benefits they would have received between January 18 and June 6, 2013, the period during which Gerawan failed to bargain in good faith for a union contract and refused to negotiate at all over its labor contractor-supplied employees (Ps. 53-58). Other remedies imposed by the judge include requiring Gerawan to mail and post notices admitting it broke the law and promising not to do so again, and having those notices read by ALRB agents to all of its workers assembled at worksites on company time. Gerawan will also have to provide the notices to all workers hired within the next 12 months.

The judge admonished Gerawan Farming and its owners for proposing contract terms that were “clearly grounded on its own personal and very self-serving philosophy of freedom of choice” for its workers (P. 50). “That philosophy ultimately became so extreme that [Gerawan] even proposed to [a state mediator] that the union satisfy a one-year learning curve with its operations and its employees before” it could collect dues for fulfilling its legal duty to represent all workers and the sprawling company. “This ludicrous proposition has no support in the ALRA [Agricultural Labor Relations Act] or the history of its interpretation by the ALRB or the courts of California (P. 50).”

Such negotiating “proposals seek to impose [Gerawan’s] own special qualifications on the UFW in order to satisfactorily qualify as a proper representative of [the company’s] employees (P. 50). Nothing in any labor relations statute authorizes an employer to impose its own qualification standards on the employee representative. Indeed [both the state farm labor law and the National Labor Relations Board] prohibit employers from doing just that in order to protect the right of employees to independent representation (P. 50).”

Other key elements of the judge’s decision include:

  • Gerawan illegally insisted on excluding farm labor contractor workers

California’s Agricultural Labor Relations Act “excludes farm labor contractors [FLCs] as employers…by design and deems an agricultural employer utilizing labor provided by an FLC to be the employer of the FLC workers for purposes of collective bargaining under the ALRA (P. 8).” Gerawan “violated [the law] by persistently refusing to bargain about the wages, hours, and other terms and conditions of employment of those unit employees who are employed by farm labor contractors (P. 53).”

“The statute aside, a substantial basis exists to infer that all parties [Gerawan and the UFW] understood and agreed that this specific bargaining unit [all the farm workers employed by Gerawan] included the agricultural employees employed by Gerawan’s FLCs (P. 9).”

Judge Schmidt ruled that Gerawan “violated its duty to bargain in good faith…by its insistence on…the exclusion of FLC workers from the core benefits of a collective-bargaining agreement (P. 52).”

  • Gerawan illegally engaged in bad faith bargaining

The judge examined the parties’ bargaining history during the 1990s, after the UFW was certified as bargaining representative of Gerawan’s workers following its victory in a 1990 state-conducted secret-ballot election (Ps. 13-15). “I find it’s fair to infer that at some point in the mid-1990s [Gerawan] deliberately chose to ignore its duty to bargaining under the ALRA altogether (P. 46).” He added that, “there is scant evidence from which I have been able to discern from the history between these two parties that [Gerawan] harbored any intention of reaching any kind of agreement with the UFW. The more recent bargaining history [starting in 2013] strongly supports that conclusion (P. 46).”

Judge Schmidt noted that, “the UFW’s request to bargaining in October 2012, initially went completely unanswered for nearly three weeks. A response from [the company] emerged only after the UFW wrote again at the end of the month threatening to file an unfair labor practice charge in the absence of a prompt response (P. 46).” Gerawan’s “principals finally replied with a letter containing an unctuous tone, not one mention of the requested information [from the UFW], and a lecture about the UFW’s potential intent to evoke the [state’s Mandatory Mediation law] process that it set about in the following months to virtually guarantee (P. 46-47).” The 2002 Mandatory Mediation law allows farm workers to bring in neutral state mediators to hammer out union contracts if growers refuse to negotiate them during regular or voluntary bargaining.

“[Gerawan] delayed furnishing critical economic information until late June or early July 2013, following 12 bargaining sessions, plus two sessions with a [state] mediator. By doing so, the UFW asserts with some justification that it could not formulate a complete economic proposal through most of the voluntary bargaining period (P. 47).”

Meanwhile, the judge observed, Gerawan “engaged in a series of serious unfair labor practices away from the bargaining table in an effort to undermine and dislodge the UFW as the bargaining representative of its employees (P. 52).” (In a separate 81-page decision issued on April 15, 2016, the full Agricultural Labor Relations Board found Gerawan guilty of numerous violations of the law.) Judge Schmidt found “that the record supports the conclusion that [Gerawan] engaged in the bargaining examined here with no intention of ever reaching an agreement with the union and by persistently refusing to bargain concerning the employment terms of the FLC workers (P. 52).”

Therefore, “Commencing on January 18, 2013, and continuing through August 2013, [Gerawan] violated [the ALRA] by engaging in collective bargaining with the UFW concerning the wages, hours, and other terms and conditions of employment of the agricultural employees in the above unit with no intention of reaching an agreement with the UFW (P. 53).”

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