State judge orders back pay for four worker leaders Gerawan illegally refused to recall because they backed the UFW
Fresno, Calif.—A 41-page ruling issued on Aug. 27 by a state administrative judge concludes that giant Gerawan Farming Inc. refused to recall four of its farm workers beginning in 2013 because they were “outspoken” in supporting the United Farm Workers and retaliated against the employees for testifying before or attending Agricultural Labor Relations Board hearings (Page 19). ALRB Administrative Law Judge Mary Miller Cracraft recommended two of the workers receive nearly seven months of back pay and one be awarded back pay from April 2015 until the huge tree fruit producer offers him reinstatement to his job. (All quotes and page citations are from the judge’s decision, which can be viewed in its entirety at: https://ufw.org/wp-content/uploads/2018/09/ALJDecision82718.pdf.)
What Eliazar Mulato, Rafael Marquez Amaro (Marquez), Juan Manuel Juarez Hernandez (Juarez) and Alberto Bermejo Cardosa (Bermejo) had in common was they were all leaders among their fellow workers in backing the UFW. They wore red union t-shirts to work, including to the packinghouse where ranch owners distributed free fruit to workers on Fridays (P. 13, P. 19, P. 24, P. 28). They passed out UFW flyers and spoke with co-workers during work breaks about the union helping them with abuses by the company (Pgs. 12-13, P. 19, P. 31, P. 37). They attended official union negotiating and mediation sessions and joined other workers at Gerawan’s offices urging the owners to sign a union contract (P. 13, P.19, P. 31, P. 37). They testified at or attended ALRB hearings that later resulted in Gerawan being found guilty by the full state farm labor board of multiple, serious and repeated violations of its workers’ rights (P. 24, P. 28, P. 31, P. 37).
When it came time to recall the four workers to their jobs as had routinely been the case in the past, the four experienced employees came up short. For example, “[Gerawan crew boss] Maldonado agreed [in testimony before the judge] that some of the employees [who were put to work] were new hires and some who were recalled did not have as much experience with Gerawan as Marquez and Mulato” (Page 16). “Once [crew boss] Maldonado learned of Mulato’s union sympathies, he quit giving Mulato rides and no longer allowed Mulato to drive his truck from row to row to move umbrellas…Nothing other than Mulato’s status as a union supporter can support this change in Mulato’s duties” (P. 19).
“[Crew boss] Maldonado preferred to hire experienced, reliable employees. Mulato and Marquez were recalled season after season and year after year and met the experience and reliability criteria for recall” (P. 20, P 23). Gerawan management’s “excuses for failure to recall Mulato and Marquez are unworthy of belief. They deviate from prior practice and constitute pretext, leaving only union animus as the result for discharge” (P. 23).
“[Pro-union worker] Juarez testified in an ALRB hearing in October 2014. His testimony was generally about [crew boss] Ramos’ activity in assisting decertification efforts. After Ramos observed Juarez talking with union representatives at a negotiation session, according to Juarez, Ramos told him he should ask the union for a job” (P. 24).
“After Juarez began his open union activity, [crew boss] Ramos’ attitude toward him changed from friendly to unfriendly. Ramos no longer provided Juarez a ride to work and no longer let him drive Ramos’ truck to move umbrellas at work. Further, Ramos indicated a degree of animus toward Juarez based on what Ramos thought Juarez had testified before the ALRB” (P. 28).
“Juarez, an openly pro-union employee, testified at an ALRB hearing in October 2014 about crew boss Ramos’ activity in assisting decertification efforts…Several weeks after Ramos testified, he assembled his spring thinning crew without including Juarez. After five or six years of recall pursuant to the ordinary practice, he was not recalled following his testimony [at the ALRB hearing]. The timing of this action is indicative of animus” (P. 28). “[I]t is found that Juarez would have been recalled if he had not engaged in union activity and had not testified before the ALRB” (P. 30). “[I]t is found that Gerawan refused to recall Juarez in retaliation for his union activities and in retaliation for his testifying in an ALRB hearing” (P. 30).
“[UFW supporter] Bermejo recalled speaking to [crew boss] Zarate at this gathering [at a store where employees gathered to receive their checks. Crew boss] Zarate noted that Bermejo had a UFW sticker on his car. Zarate told Bermejo to remove the sticker. Zarate also told Bermejo that he was not getting the work with the grapes because Bermejo was causing ‘trouble’ at Gerawan by handing out union flyers” (P. 32). “In this context, the use of the term ‘trouble’ may be reasonably understood as indicative of trouble from supporting the union” (P. 37).
“In forming their crews for the 2015 spring thinning, both [crew bosses] Zarate and Rodriguez hired numerous workers without prior Gerawan experience while denying [experienced worker] Bermejo a place on their crews. Such deviation from past practice is indicative of [anti-union] animus” (P. 38). “In each case, the [ALRB] General Counsel’s evidence has created an inference that the failure to recall the employees was due to their union activity…No cogent reasons have been advanced [by Gerawan] for failure to recall the alleged discriminatees as part of this normal recall process” (P. 39).
Overall, the judge’s decision “concluded that respondent Gerawan failed in each instance to prove that it would not have recalled the [four] alleged discriminates absent their union activity. Accordingly, it is found that respondent violated the [Agricultural Labor Relations] Act by failure to recall the four alleged discriminates” (P. 39).
In determining remedies, Judge Cracraft “recommended that Gerawan be ordered to cease and desist from failure to recall employees due to their union activity or due to their testimony before the ALRB. It is further recommended that Gerawan make the alleged discriminatees whole for their losses due to Gerawan’s unlawful activity. The backpay periods for Mulato and Marquez run from October 2013 until May 2014 when they were recalled. The backpay period for Juarez is from March 24, 2015 to April 12, 2015. Bermejo’s backpay period will run from the date he should have been recalled in April 2015 until the date he is offered reinstatement. Thus, Bermejo is owed an offer of reinstatement plus backpay” (P. 40).