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Law Office Management
Sep. 2, 2015
Bitter Harvest
by Thomas Peele
Dan Gerawan appears unassuming-a slight, plain-faced farmer who looks as if he'd be
comfortable driving a tractor across Nebraska wheat fields. A fading blue shirt hangs
from his frame as Gerawan, 53, sits in an office adjacent to his sprawling packing
facility in Sanger, east of Fresno. It's May-still early in the growing season-and
the parking lot outside is nearly empty of workers' cars. Beyond that expanse of pavement,
tight green rows of stone-fruit trees run nearly to the horizon.
Gerawan Farming is known as the largest peach grower in the United States, and also
as a major producer of nectarines, plums, apricots, and table grapes. When harvest
arrives in late summer, the family-owned business directly employs some 5,000 workers-plus
thousands of additional contract laborers-who pick the delicate fruit by hand, one
gentle tug at a time.
Gerawan is also the vocal leader of a new movement of growers who oppose "interest
arbitration" ordered by the state's Agricultural Labor Relations Board (ALRB). A litigant
in multiple lawsuits and administrative matters, Gerawan nonetheless gives interviews,
issues statements about his cause, and makes his opinions known on local talk radio.
"I have nothing to hide," he says. "One of my biggest fears is that this story won't
be told."
But in recounting his three-year campaign to fend off an imposed union contract, Gerawan
can also be coy, sometimes answering questions with a question: "What do you think?"
Asked how much land he farms, exactly, he says it's not something he discloses-but
adds that a "not inaccurate" trade journal puts the number at 12,000 acres in Fresno
and Madera counties.
Still, Gerawan doesn't seem like agriculture's "800-pound gorilla" (as one lawyer
calls him), waging the biggest legal battle yet against provisions of the Agricultural
Labor Relations Act of 1975 (Cal. Labor Code §§ 1140-1166.3). Signed 40 years ago
by newly elected Gov. Jerry Brown, the ALRA closely followed César Chavez's nationwide
grape boycott, which forced growers to sign their first union contracts. It established
a legal right to secret-ballot elections similar to those non-agricultural workers
are entitled to under the 1935 National Labor Relations Act.
But granting legal rights to farmworkers didn't make organizing any easier-especially
when contract labor and undocumented immigrants were plentiful. Nor did it anticipate
discord inside the United Farm Workers union, or lessen California growers' resistance
to collective bargaining. In 2002-with only a handful of farm labor contracts in effect
and little sustained organizing or bargaining activity-the Legislature declared that
"a need exists for a mediation procedure in order to ensure a more effective collective
bargaining process ... ameliorate the working conditions and economic standing of
agricultural employees, create stability in the agricultural labor force, and promote
California's economic well-being by ensuring stability in its most vital industry."
(Cal. Stats. 2002, Ch. 1145, § 1.)
With that preamble, state lawmakers amended the ALRA to permit mandatory mediation
and conciliation (MMC) in cases of initial-contract bargaining impasse. (See Cal.
Labor Code §§ 1164-1164.13). Perceived by growers as a union weapon-albeit seldom
used-the statute enables the labor board to impose collective bargaining agreements
based on a mediator's report.
Three years ago the United Farm Workers union returned to Gerawan's farm, where workers
had voted for it in 1990 and contract talks broke off in 1995. More recent negotiations
also sputtered, and an all-out war ensued between Gerawan and the UFW. After mediation,
the ALRB imposed a contract, which Gerawan continues to challenge in the courts by
attacking the constitutionality of the MMC process.
Last May a panel of the Fifth District Court of Appeal held that MMC violates equal
protection principles and improperly delegates legislative authority. Both the UFW
and the ALRB petitioned for review, which the justices of the California Supreme Court
granted unanimously in mid-August. (Gerawan Farming, Inc. v. ALRB, 236 Cal. App. 4th 1024 (2015) (petition for review filed June 23, 2015).)
Dan Gerawan calls mandatory mediation "death to a company-it's not sustainable." Silas
M. Shawver, the ALRB's regional director in Visalia, used equally unsparing terms
to describe Gerawan: In a brief filed in a related unfair labor practices case, Shawver
wrote, "For Dan Gerawan, the union was the noose around the company's neck and the
MMC arbitrator was the hangman. In Gerawan's view, getting rid of the union was a
matter of life and death."
Shawver's brief also noted that Gerawan had testified at a hearing that "as a child,
he understood that UFW agents burned down his childhood home. Needless to say, the
relationship has always been adversarial and the labor disputes, deeply personal."
Gerawan denies that current litigation is motivated by that incident, a 1973 firebombing
described by the Fresno Bee as "related to ... farm strife."
Now Gerawan's principal adversary is William B. Gould IV, appointed by Brown last
year to head the ALRB. A Stanford Law School professor emeritus best known for his
years chairing the National Labor Relations Board during the Clinton administration,
Gould literally wrote the book on U.S. labor law; his A Primer on American Labor Law (MIT Press, 1993) is now in its fifth printing.
"The stakes are very, very high," Gould says of Gerawan's challenge to interest arbitration.
"[MMC] is a tremendously important issue." At a UC Davis School of Law gathering in
April to commemorate the 40th anniversary of the ALRA, Gould said, "The script has
evolved in ways no one could have foreseen." In June he acknowledged at a separate
celebration that the board was weathering "a sea of conflict and turmoil."
But David A. Schwarz, Gerawan's lawyer and a partner in the Los Angeles office of
Irell & Manella, is more pointed: "I think the board is facing a kind of existential
crisis," Schwarz says. "Its credibility is really on the line."
Unless, that is, Bill Gould can save it.
At a scheduled meeting of the agricultural labor board earlier this year, Gould hurried
into a dimly lit state auditorium in Sacramento at a pace that defies his 79 years,
a cache of papers under one arm. Thirty-five separate items were on the closed-session
portion of the agenda alone, including several concerning Gerawan Farming.
Minutes before starting time, the room was still nearly empty. A woman asked, "Is
this the Ag Board? Why is no one here?"
Gould ascended the stage bearing news. A fellow board member was ill; the meeting
had to be canceled and rescheduled-for the second consecutive time. Currently, the
board has just three members: Gould, Genevieve A. Shiroma, and Cathryn Rivera-Hernandez.
All were appointed by Brown to staggered five-year terms.
Gould could have ended the session there, but a handful of people had gathered. The
chairman hunched forward, his hands folded on a tabletop, and for the next half hour
held court.
Mostly, he talked about streamlining ALRB investigations of alleged unfair labor practices
that often precede union elections. He discussed arcane rule making: "I have been
concerned all of my professional career ... with how to expedite our administrative
processes," he said. "The problems we confront ..." and he went on to list many of
them.
Though not exactly rambling, Gould sounded as if he couldn't bear to leave before
filling the auditorium with his words. It was deadly quiet when he finished, shook
hands with a few people around him, and left.
Despite his largely academic career, Gould has been on a bigger stage before. In 1993
newly elected President Bill Clinton nominated him to head the National Labor Relations
Board. The Reagan and Bush administrations had left unions battered by twelve years
of hostile rulings, and there was no question that Gould's approach would be kinder
to labor. He had begun his legal career as assistant general counsel at the United
Auto Workers union, where he admired its leader, Walter Reuther. Many call Gould a
labor partisan.
After a nine-month battle, the Senate confirmed Gould-with just five Republican votes.
The hearings set the tone for his tenure, with Republicans repeatedly confronting
him over his public remarks about labor issues and even commenting on open cases before
the NLRB. They also slashed the board's budget. In his memoir regarding the period,
Gould refers to "a barrage of blows" intended to tell him, "Don't you dare speak about
the law unless you are spoken to." (Labored Relations: Law, Politics and the NLRB (MIT Press, 2000).)
But Gould, a tenured law professor, was resistant to political pressure. When his
term ended in 1998, the New York Times described him as "a bitter figure, frustrated that he had accomplished far less than
he hoped and widely accused of having politicized the board and antagonized Congress
as well as his fellow board members."
"I'm not in anyone's pocket," he told the newspaper. "I am my own man, and I march
to my own drummer. ... If I-as chairman, with my experience in this arena, as a law
professor, lawyer, and arbitrator-am not competent to speak out, who in the world
is?"
Gould now says, "I don't think I was bitter. I was up against great odds in trying
to accomplish much of anything. There were days I felt a great deal of anguish and
loneliness." He says he read mysteries to fight insomnia, listened to jazz, and delved
into a diary kept by his great-grandfather, William Benjamin Gould, who escaped from
slavery and served aboard a U.S. Navy ship during the Civil War. The diary provided
perspective: Compared to his namesake's ordeals, Gould says, political haggles were
"child's play."
Wilma Liebman, who joined the NLRB during Gould's final months and later became chair,
says Gould found Washington a very frustrating place. "He was critical of the D.C.
insiders," she says. "He wasn't part of the scene-it was a difficult time."
Gould returned to Stanford, teaching, lecturing, and writing Labored Relations, his seventh book. Publisher's Weekly called it "deliberate and dignified, yet undeniably defensive." If his 480-page critique
of Washington politics made one overarching point, it was that Bill Gould always gets
the last word in an argument. It also left a clear impression: Gould was unlikely
ever to work in government again.
Before Jerry Brown first took the governor's office in 1975, he had worked in the
fields while a seminary student and marched with farmworkers for Chavez's "La Causa."
In his inaugural address, Brown referred to ongoing violence between the UFW and the
International Brotherhood of Teamsters, which also was trying to organize farmworkers.
He demanded that California extend "the rule of law to the agriculture sector, and
establish the right of secret-ballot elections."
But according to former Los Angeles Times reporter Miriam Pawel, UFW President Chavez was ambivalent about political fixes.
In her seminal biography of the union leader, The Crusades of Cesar Chavez, Pawel contends that he supported strong worker protections but also feared that
"legislation could screw us." After tense meetings with Chavez, Brown unveiled the
Agricultural Labor Relations Act-his first bill-and signed it two months later.
Brown appointed Roger Mahony, Fresno's auxiliary Catholic bishop, to chair the new
law's administrative arm, the ALRB. The inexperienced board and its agents, however,
were quickly overwhelmed. According to a study by Philip L. Martin, professor emeritus
of agricultural and resource economics at UC Davis, within its first six months the
board received 604 election petitions, conducted 423 elections (involving more than
50,000 workers), received 988 unfair labor practice claims, and issued 254 charges
for violations of the act. By the end of its first year, the board had filed 27 decisions.
Having exhausted its budget, the ALRB laid off 200 employees and had to shut down.
When emergency funding was proposed, growers lobbied legislators to amend certain
provisions of the act-such as union access to workers in the fields and the "make-whole"
remedy for unfair labor practices. Fearing a legislative rollback, the UFW qualified
a measure for the statewide ballot in 1976 to provide constitutional guarantees to
unions and ensure funding for the ALRB.
Proposition 14, however, was trounced at the polls by a two-to-one margin, setting
off factional battles over the UFW's leadership, structure, and organizing strategy.
The election of Republican Gov. George Deukmejian in 1982, and his appointment of
conservative M. David Stirling as ALRB's general counsel, then sent labor organizing
into a prolonged tailspin.
As Chavez had feared, the UFW found that growers resisted contract negotiations and
fought unfair labor practice claims through endless appeals. According to Professor
Martin's study, between 1975 and 2002 the UFW was able to negotiate labor agreements
at only 185 of the 428 farms where it had won elections. He calculated that unions
had contracts at fewer than 1 percent of the state's approximately 25,000 farm employers.
Seeking to promote initial contracts, then-Senate President John Burton (D-San Francisco)
and Assembly Speaker Herb Wesson (D-Los Angeles) in 2002 proposed adding interest
arbitration to the ALRA. Provisions would apply only if the employer had hired 25
or more farmworkers during any calendar week in the year preceding a mediation request.
For unions certified before 2003 and seeking to renew bargaining, the parties must
have failed to reach agreement for at least one year, the employer must have committed
an unfair labor practice, and the parties must not previously have had a binding contract
between them. As the UFW held a vigil outside the state capitol, Gov. Gray Davis signed
the two companion bills into law.
The United Food & Commercial Workers (UFCW) union was the first to request MMC, after
failing to negotiate a contract at Hess Collection Winery in Napa. But the Pacific
Legal Foundation, representing a half-dozen grower groups around the state, immediately
challenged the law in a Sacramento superior court. Stirling-who had left the ALRB
to become vice president of the conservative foundation-told the Los Angeles Times, "The statute basically strips parties of their constitutional right to collectively
bargain without government interference."
The court ruled that the suit could not go forward until there was a contract for
Hess to challenge. The ALRB imposed one in 2003, and Hess pressed ahead, claiming
due-process, equal-protection, and legislative-overreach violations. In a 2-1 ruling
in 2006, however, the Third District Court of Appeal affirmed the ALRB's order, holding
that, significantly, the MMC process is not "quasi-judicial" but "quasi-legislative
in character." Justice Richard M. Sims III cited distinctions including "the nature
of the decision-maker, the right to and nature of a hearing, the standards applied,
and the scope of judicial review." (Hess Collection Winery v. ALRB, 140 Cal. App. 4th 1584, 1598 (2006).)
The panel majority noted that the state Supreme Court had repudiated right-of-contract
arguments based on authorities from the Lochner era. Sims wrote that courts will not strike down a law on substantive due process
grounds unless it "is manifestly unreasonable, arbitrary or capricious, and has no
real or substantial relation to public health, safety, morals or general welfare."
(Hess, 140 Cal. App. 4th at 1599 (quoting Massingill v. Dept. of Food & Agric., 102 Cal. App. 4th 498, 504 (2002).)
David Rosenfeld, a shareholder at Alameda's Weinberg, Roger & Rosenfeld who represented
the union in Hess, has a tempered view of MMC's benefits. At the ALRA's 40th-anniversary conference
at UC Davis, he cautioned that mandatory mediation works best in highly unionized
industries, where the mediator is able to consider comparable contracts. With MMC,
he said, "you don't get a lot more than what the workers are already getting." But
Rosenfeld emphasized, "What you get is a contract. You get workplace democracy, you
get a grievance procedure, you get seniority, you get just cause ... you get definitions
of work hours and the work week."
With the UFCW's success at Hess, the UFW began perusing "old certifications"-at farms
where it had won elections but never negotiated a contract. In 2007 the UFW invoked
MMC to win an imposed contract at Salinas-based D'Arrigo Bros. of California-more
than 30 years after the union was certified there. Commenting in the Los Angeles Times, reporter Pawel wrote that terms of that agreement "hardly seem worth the decades-long
battle." But it was a contract.
In October 2012, Dan Gerawan was surprised to hear from the UFW. So were many of his
workers, he says. Gerawan Farming laborers had voted for the union in 1990, at the
height of César Chavez's final organizing drive (he died in 1993). It took two years
to certify the results, and then negotiations reached impasse.
Few of Gerawan's current workers had voted in that election, and many weren't aware
that technically they were part of a bargaining unit. Where had the union been, Gerawan
wanted to know, for the past 17 years? "No faxes, no emails, no phone calls," he says.
"No requests to talk to our workers in the fields. Nothing. Zero. Zilch."
Irell & Manella attorney Schwarz speculates that the UFW turned to "old and cold"
certifications because it's been unable to organize new ones. Gerawan Farming, he
adds, with more than 5,000 employees at peak season, may have been the biggest available
target-one that would provide the union with a large influx of dues money.
A union contract there, Pawel says, would more than double the UFW's membership, which
she estimates at 3,700-a fraction of the union's ranks in the 1970s. "The UFW's not
been a presence in the fields for many, many years," she says.
The UFW refused requests to interview Arturo S. Rodriguez, its president and Chavez's
son-in-law. But Mario G. Martinez, a partner at Bakersfield's Martinez Aguilasocho
& Lynch who represents the UFW, says the union "disputes the narrative that it abandoned"
Gerawan's workers. "It's just not true. In 1995 it was very clear Gerawan was never
going to sign a contract," Martinez says. "We think the more pressing story is what's
happened since negotiations [re]started" in 2012.
Representatives of Gerawan Farming and the UFW met ten times before the union asked
the ALRB to declare impasse and order the parties to mandatory mediation. Gerawan's
attorneys objected, asserting that the UFW had long ago abandoned its status as bargaining
agent. Without a hearing, the ALRB rejected those claims and ruled that because the
UFW had just attempted to bargain, the workers weren't abandoned. (Gerawan Farming, Inc., 39 ALRB, No. 5 (2013).) After the Fresno County Superior Court declined to stay
the board's decision, in May 2013 the parties selected Oakland arbitrator Matthew
Goldberg to begin the mediation process.
As Goldberg heard testimony, antiunion Gerawan employees demanded access to sessions
and were barred, provoking another challenge. The board dismissed the petition, holding
that MMC provided no mechanism for third-party intervention. (Gerawan Farming, Inc., 39 ALRB No. 11 (2013).)
Gerawan again went to superior court, where his suit for an employee to attend the
mediation was denied, despite amicus briefs from such open-government advocates as
the California Newspaper Publishers Association. (Gerawan Farming, Inc. v. ALRB, No. F069896 (Cal. Ct. App. 5th Dist.).)
As testimony in the MMC hearing proceeded, it seemed that Gerawan workers who didn't
want union representation had but one choice: to call for a decertification election.
Enter Silvia Lopez.
Lopez had worked sporadically at Gerawan Farming since 1998, and she lived with a
company manager, Marion Montes. In spring 2013 she began a drive to decertify the
UFW, calling herself a 15-year Gerawan employee, making public appearances, and starring
in a company video. But she hadn't worked at the farm for at least three years.
Eventually, Lopez testified in a massive unfair labor practice case that she returned
to employment at Gerawan Farming in June 2013 and only then learned of the labor dispute.
Despite living with Montes, she claimed, she had been ignorant of the union's reemergence.
But the ALRB general counsel's post-hearing brief charged that before Gerawan rehired
her, Lopez had met with a lawyer and tried to attend one of the MMC sessions in Modesto.
Lopez "got involved in fighting the union even before she started working," according
to the general counsel's brief. "Her story fell apart."
Gerawan, the brief stated, had hired Lopez to serve as "the purported voice of farm
workers" to promote decertification. According to the brief, "Gerawan pulled out the
red carpet," giving Lopez "free rein" for antiunion activities.
Lopez is represented by Paul J. Bauer of Fresno's Walter & Wilhelm Law Group, who
says his client "unequivocally denies being a pawn" of the Gerawan company. "What
she did, she did freely," Bauer says. "All she wanted was the right to vote" on decertification.
According to the ALRB general counsel's brief, that summer the company flooded its
workers with anti-UFW flyers, including one describing the union "as a worthless parasite
seeking dues money." Field bosses told their crews that the UFW wanted anyone who
refused to pay dues fired. Workers were ordered to sign decertification petitions.
Work rules for antiunion employees weren't enforced. One laborer later testified that
a colleague "threatened to kill anyone in the crew who supported the union," but bosses
ignored the threat.
In August, ALRB regional director Shawver sought a temporary restraining order to
stop "unlawful conduct that, if allowed to continue, will have a devastating impact
on the rights of farmworkers to make a choice about union representation."
But Fresno Superior Court Judge Jeffrey Y. Hamilton Jr. denied the petition, saying
Shawver's argument was "very suspect." The "ALRB seems to be pre-deciding or has presupposed
to any election," Hamilton said, adding that the ALRB's position "is already tainted."
He remarked that the ALRB and the UFW seemed to be "in cahoots"-a phrase that quickly
became a Gerawan Farming rallying cry.
Lopez submitted a 2,600-signature decertification petition in September, but Shawver
rejected it as "forgery-laden." Lopez came back with additional signatures, but Shawver
twice more rejected her petitions, ruling first that ongoing mediation barred an election
and then that the numerous unfair labor practice claims against Gerawan warranted
postponing the vote.
The ALRB eventually permitted the decertification election to go forward, in November
2013-but there was a catch: The board ordered the ballots immediately sealed until
the unfair labor practice claims were resolved in hearings.
Early last year, Lopez's attorneys filed a federal suit against the ALRB, Shawver,
and others, claiming constitutional violations of due process and the right of association.
Alleging administrative bias, she sought an order to have the impounded ballots counted
"by a neutral, objective third party, and the results made public."
When U.S. District Judge Lawrence J. O'Neill denied the ALRB's assertion of official
immunity (Lopez v. Shiroma, No. 14-CV-236 (E.D. Cal. filed Feb. 21, 2014)), the board appealed his ruling to
the Ninth Circuit. (Lopez v. Shiroma, 2014 WL 3689696 (E.D. Cal.).) The case is pending.
In May of this year, the ALRB's general counsel filed Shawver's post-hearing brief
in the consolidated unfair labor practices case. The brief began, "105 days of testimony.
130 witnesses. One glaring truth: Gerawan orchestrated, supported, and encouraged
the decertification effort. Dan Gerawan was not shy about his role: he admitted that
he hired lawyers and engaged in a massive legal and public relations effort, all for
the purpose of giving employees an opportunity to vote to decertify the United Farm
Workers." The effort was so blatant, Shawver stated, "even [blind musician] José
Feliciano could see that the choice was to decertify the UFW."
Shawver concluded, "Gerawan is not only liable for the actions of its owners and statutory
supervisors in instigating, supporting and assisting the decertification effort; it
is directly liable for the actions of Ms. Lopez as the company gave her apparent authority
to act on its behalf."
But in the respondent's post-hearing brief, Ronald H. Barsamian of Fresno's Barsamian
& Moody denied that Dan Gerawan had done anything wrong and said he had a well-supported
First Amendment right to communicate with his employees. Calling the unfair labor
practice hearing "remarkable in the history of California," Barsamian claimed that
the positions of the ALRB staff "when it comes to the voting rights of workers have
been decidedly, consistently, and wrongly undemocratic." He asserted, "This proceeding
presents only one question: Should the ballots be counted? Gerawan answers yes to
that question." Administrative law judge Mark Soble has yet to issue a ruling. (Gerawan Farming, Inc., No. 2013-RD-003 VIS (39 ALRB 20) (Agric. Labor Rel. Bd.).)
Arbitrator Goldberg, meanwhile, had submitted his report to the board, which then
imposed a contract at Gerawan Farming effective November 2013 (39 ALRB No. 17 (2013)).
The contract's terms included 12.5 percent raises for workers over three years, paid
holidays, bonuses, and seniority protections. But Gerawan refused to implement the
contract.
While Gerawan and the UFW were locked in combat, Bill Gould was enjoying what he called
a "fairly rarified life" on the Stanford campus. Away from the Washington hothouse,
little was beyond his reach or ire. Writing for Slate in 2008, Gould charged that the NLRA was "in complete disarray ... tattered by bad
appointments to the National Labor Relations Board and by long delays in resolving"
elections and disputes. Employers, he wrote, had too much time "to intimidate and
coerce and dismiss" workers for organizing, gutting their rights.
In December 2013, Jerry Brown was in his third term as governor when a member of his
appointments staff called Gould about vacancies on the farm labor board. "I thought
they were just sounding me out if I knew people who might be interested," Gould says.
Instead, he was first offered a spot on the ALRB, and then its chair.
He declined. The job wasn't "the thing I wanted to do," he says. But after seeking
counsel from friends and his wife, he accepted. During an interview, Gould reflected,
"I don't know if this will be the last job I will do, but it might be roughly akin
to it." He used phrases like "rounding off my career," "giving back," and pursuing
"intellectual curiosities" to explain his decision. But he also gave the impression
that in taking another shot at running a public agency, he has his legacy in mind.
At his confirmation hearing nearly a year after starting work, Gould told the state
Senate Rules Committee that he intended to make the ALRA "a greater reality to farm
labor and growers; to reach the forgotten ... workers who toil in our fields; to expedite
our procedures so that delay will not deny justice for those who appear before us."
In his opening remarks at the ALRA's 40th-anniversary conference in April, Gould noted
that during his first 13 months as board chairman, "not one single representation
petition has been filed with our agency." But in June he warned that sagging union
membership doesn't reflect California farmworkers' "satisfaction with employment conditions."
In the Coachella Valley, he said, he had seen laborers "sleeping both in and next
to their automobiles, sometimes switching with one another between the auto and the
adjacent mats." He called the lack of housing for farmworkers "in the richest country
of the world" unbelievable.
Gould also expressed concern for immigrant workers from indigenous communities in
southern Mexico and Central America. Such "undocumented workers living in the shadow
of our law" make up more than 20 percent of California's farm labor, he said. Often
speaking only their native languages, they toil in "isolation" and "illiteracy." The
ALRB, he vowed, must reach them. "Adjudication is meaningful only if those to whom
it is aimed are aware of its existence."
Attorney Schwarz alleged earlier this year, in his petition to the Fifth District
for review in Gerawan, that MMC "negated a core principle of labor law-the freedom of negotiation and voluntary
agreement to contract terms." He also argued that the ALRB had improperly rejected
Gerawan's contention that the UFW had abandoned his workforce.
In his opposition brief for the ALRB, Deputy Attorney General Benjamin M. Glickman
responded that "abandonment occurs only if a union expressly disclaims interest or
becomes defunct." UFW attorneys Martinez and Scott A. Kronland of San Francisco's
Altshuler Berzon added, "The ALRB and the courts have long held that a union remains
'certified' ... to bargain unless and until it is decertified."
As for the constitutional claims, Glickman called them "relics of a 'bygone era of
substantive due process review' " that had been rejected in Hess. He argued that it is "settled law that economic legislation does not violate substantive
due process if the Legislature could have had a rational basis for its enactment,"
even if it "interferes with the 'freedom of contract.' "
Glickman pointed out that Gerawan's lawyers relied on "three Lochner-era cases that have long since been repudiated," including both decisions in Charles Wolff Packing Co. v. Court of Industrial Relations (262 U.S. 522 (1923); 267 U.S. 552 (1925)). "Since at least 1931," Glickman argued,
"the Supreme Court has repeatedly upheld economic legislation alleged to impinge on
the freedom of contract, including numerous labor statutes, where it is supported
by a rational basis. ... Wolff in particular is no longer good law."
Oral argument in the case last April was high drama for California agriculture, attracting
to the Fresno courthouse hundreds of antiunion Gerawan workers who waved signs reading
"My vote counts" and "Union off my back." Gould attended, and so did Dan Gerawan,
who admitted that he was apprehensive until the panel of justices started asking questions.
"These three guys came in," he says. "They looked so serious. I had a feeling we were
going to be OK."
Gerawan emerged better than OK. A month later, the panel ruled that the ALRB had erred
in summarily dismissing Gerawan's abandonment claims, and that the MMC statute "violates
equal protection principles," and constitutes an "improper delegation of legislative
authority." (Gerawan, 236 Cal. App. 4th at 1036.)
The justices held that the UFW's long absence "may create a crisis of representation."
A union with "little or no contact with the employees or the employer over many years
(here, decades) would be unlikely to have an adequate working knowledge of the employees'
situation or their wishes," wrote Justice Stephen Kane. Workers might not want to
be represented by that union or any other union, he noted. "Accordingly, it is appropriate
to allow the employer to raise the abandonment issue at that stage" given the "ALRA's
purpose of protecting the employees' right to choose." (Gerawan, 236 Cal. App. 4th at 1061.)
Kane was equally critical of MMC. Mediators can set terms "without any definite policy
direction, goal, or standard that is supposed to be reached or implemented," he noted.
MMC has "no adequate mechanisms or safeguards in place ... to protect against favoritism
in the use of such delegated power." It also "involves an unconstitutional delegation
of legislative authority, because it leaves the resolution of fundamental policy issues
to others and it fails to provide adequate direction and safeguards for [that policy's]
implementation." (236 Cal. App. 4th at 1076.)
For authority, Kane cited long passages from Third District Justice George Nicholson's
dissent in Hess. Adopting Nicholson's reasoning, Kane quoted from the dissent verbatim: "Application
of ... section 1164 and the related statutes results in disparate treatment within
the class of employers without an initial collective bargaining agreement because
the agreement imposed on each employer in this class will be different. While the
legitimate state interest that I assume for argument exists may justify disparate
treatment between classes, it cannot justify disparate treatment within the class.
... This means of classification ... is the very antithesis of equal protection." (236 Cal. App. 4th at 1068-69 (emphasis added by the court).)
The UFW immediately announced an appeal, dismissing the Fifth District's contradiction
of Hess as the work of "three Republican-appointed judges" who "accepted Gerawan's bogus
[abandonment] allegations ... when no proof was ever presented." UFW attorney Kronland,
who also worked on Hess, predicted the California Supreme Court "is very likely to find [Gerawan] was wrongly decided on every issue."
But Schwarz said the ruling in Gerawan bears "great significance." He called MMC "a uniquely intrusive regulatory scheme"
that departs completely from the National Labor Relations Act, on which the ALRA was
patterned. It singles out individual growers for disparate treatment, he says, and
removes due process as if the "Legislature was putting a bead on one person."
Jason E. Resnick, vice president and general counsel of the Western Growers Association,
says the Gerawan ruling might restore balance to the ALRB, which has been "more of an advocate for
the UFW than it should." Resnick contends the UFW often "plays a waiting game," invoking
MMC without really bargaining. "Hopefully," he says, "that stops now."
According to UC Davis's Martin, "MMC was aimed to spur new organizing. It hasn't done
that. Instead, the UFW has used it to get contracts at 'old certs.' ... You can do
circular reasoning: The UFW doesn't organize because it cannot win wage increases;
the MMC promises wage increases." But he says the UFW has done little organizing in
the past decade.
The person with the most to say about breaking the stalemate in California's fields
may be Bill Gould. A few days after the Fifth Circuit's ruling, he sat down in the
Stanford law library to talk. At first he declined to discuss Gerawan, but he quickly changed his mind.
"The fact that we [lost] in the court of appeal doesn't surprise me-but [the panel's]
rationale does," he says. In regard to abandonment, "[t]he court used ... a rationale
that hadn't emerged at the time of oral argument and as far as I can recollect, had
not emerged in the briefing." Attaching abandonment to the MMC proceeding, Gould says,
"really left me, I want to say, puzzled. It was quite novel."
"On constitutionality," he continued, "one could see from oral argument that the court
was disposed to contradicting Hess. But interest arbitration-which is what's in the statute-has been held to be constitutional
involving the railway industry and other private sectors, and in public sector [cases]."
In his closing remarks at the ALRA's 40th-anniversary conference, Gould said the legislation
had been devised as a "dream statute." He said it clarified the designation of bargaining
units, mandated quick elections, and provided make-whole remedies for farmworkers
subjected to unfair labor practices. The board chairman vowed to "redeem the promise
that was contained in this very important piece of legislation."
But asked later about MMC's prospects, all Gould would say is, "We'll see what the
Supreme Court of California has to say about it."
Of course, the attorney general's office-not Bill Gould-will argue the board's case.
But it's worth noting that the state's lead client is a former chair of the NLRB and
an eminent scholar of American labor law who loves a fight, and speaks his mind.
Jerry Brown's 40-year-old farmworker rights law isn't dead yet.
Thomas Peele is an investigative reporter for the Bay Area News Group.
#270415
Donna Mallard
Daily Journal Staff Writer
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