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Bitter Harvest

By Donna Mallard | Sep. 2, 2015

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.


Donna Mallard

Daily Journal Staff Writer

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