CALIFORNIA APPEALS COURT RULES FARM WORKER LAW
UNCONSTITUTIONAL
By David Bacon
Working In These Times, 6/17/15
http://inthesetimes.com/working/entry/18079/california_appeals_court_rules_farm_workers_law_unconstitutional
Severiano Salas and Amadalia Patino are two workers who
were fired from their jobs as grape pickers for Gerawan Farms.
FRESNO, CA -- On May 18 in Fresno, California, the
state's Court of Appeals for the 5th District ruled that a key provision of the
state's unique labor law for field workers is unconstitutional. Should it be upheld by the state's supreme
court, this decision will profoundly affect the ability of California farm
workers to gain union contracts.
At issue is the mandatory mediation provision of the
state's Agricultural Labor Relations Act.
Using this section of the law, workers can vote for a union, and then
call in a mediator if their employer refuses to negotiate a first-time
contract. The mediator, chosen by the
state, hears from both the union and the grower, and writes a report
recommending a settlement. Once the
Agricultural Labor Relations Board (ALRB) adopts the report, it becomes a
binding union contract.
Associate Justice Stephen Kane, in a 3-0 ruling, said the
law illegally delegates authority to the mediator. The Fresno district of the appeals court is
well known for its conservative bent.
United Farm Workers Vice President Armando Elenes immediately announced
that the union would appeal the decision to the state Supreme Court.
The case has attracted the attention and support of some
of the country's most powerful conservative and anti-union organizations. Some have intervened to file briefs
challenging the law. Others have joined
with the grower in this case, Gerawan Farms, in an elaborate campaign to remove
the United Farm Workers as the bargaining representative for the company's
workers.
Workers say they already feel the impact of the challenge
to the law. According to Ana Garcia
Aparicio, "At this company we've had many issues and injustices. This is
the reason it is so important for us that our contract be implemented."
Gerawan Farm's 5000 workers pick peaches and grapes in
the Fresno region of California's San Joaquin Valley, one of the richest and
most productive agricultural regions in the world. The grape harvest takes place during the
summer, when temperatures in the fields normally rise to over 100 degrees every
day. To pick peaches, workers have to
carry tall aluminum ladders through the trees, along with the heavy buckets of
fruit.
One worker, Inez Garcia, says that not only is field work
physically exhausting, "but that the worst part was that the men two rows
away from me were picking at $11.00 dollars an hour, while I was doing the same
work and getting paid $9.00 dollars an hour."
Another worker, Guadalupe Martinez, says she was
threatened after criticizing a supervisor for making it hard for her to get to
the drinking water, a crucial issue during the summer heat. "Now," she worries, "I am
afraid that for next season I will not be recalled to work since she is
accustomed to doing what she wants with her crew."
A mediator recommended a union agreement at Gerawan,
using California's mandatory mediation law.
It dictates equal wages for the same job, and prohibits
discrimination. It also mandates a
system for recalling workers each harvest season that bars favoritism or
retaliation. Gerawan Farms workers,
however, are still waiting for the courts to mandate implementation of this
contract.
Workers here are trying to overcome the impact of their
exclusion from the National Labor Relations Act, passed in 1935. Outside of California, no state has a law
giving farmworkers a legal process for union recognition and bargaining. Union agreements do exist in the fields
elsewhere, but they've been won only after years-long campaigns and boycotts.
As a result, less than one percent of the nation's farmworkers are covered by
union agreements. Wages and conditions
in farm labor are worse than in almost any other occupation.
In the absence of Federal law, however, California has
been able to use state legislation to address grower intransigence. The original Agricultural Labor Relations Act
(ALRA) was passed in 1975, and signed into law by Governor Jerry Brown in his
first term. That law gave farm workers,
for the first time, a legal process in which they could vote for a union, and
made it illegal for a grower to retaliate against workers for exercising their
right to organize. The law, however, gave
no teeth to the ALRB to actually force growers to negotiate and sign contracts.
As a result, workers could vote for the union, but had
great difficulty negotiating contracts afterwards. According to professor Philip Martin at the
University of California in Davis, workers were unable to win agreements in 253
of 428 farms where they'd voted for the United Farm Workers between 1975, when
the ALRA went into effect, and 2002.
That year then-Governor Grey Davis signed two bills that
set up the mandatory mediation process. Growers predictably challenged the law,
but finally lost in another district of the state Court of Appeals in
2006. Judge Kane and the Fresno court
are trying to undo this earlier decision.
After 2006 the UFW successfully used the new law at
several large employers, negotiating agreements covering about 3000
workers. In 2013 the UFW implemented the
law again, this time at Gerawan Farms.
The UFW won an election among Gerawan's workers in 1992,
when the grower employed about 1000 peach and grape pickers. Company opposition was intense, and one
worker, Jose Gonzalez, recalls that, "The company had houses for workers
then, and tore them down when they knew we were talking about the
union." The ALRB leveled multiple
charges of retaliation against Gerawan as a result.
The company unsuccessfully appealed the union election
victory, and finally in 1995 Mike Gerawan, one of the company's owners, sat
down with the union. He declared,
however, "I don't want the union and I don't need the union." That ended bargaining.
The union says it maintained contact with the workers in
the years that followed, but had no way to force management to negotiate until
mandatory mediation was passed and upheld.
By then Gerawan had grown much larger, employing 5000 farm workers. Judge Kane, in his decision, nevertheless
accepted the company's argument that the UFW had "abandoned" the
workers.
Once the union renewed its bargaining request in 2013,
and then called for the mediator, the company unleashed a campaign to decertify
it. According to a complaint later
issued by the ALRB, Gerawan sought "to prevent the UFW from ever
representing its employees under a collective bargaining agreement."
Two petitions, one featuring forged signatures, were
circulated, often by foremen, calling for an election to decertify the
UFW. Supervisors organized rallies in
front of ALRB offices to pressure it into holding a vote. According to
Gonzalez, "When they passed around the decertification petitions, they
looked at the crews who didn't sign them.
Then those crews didn't have any more work." Severino Salas, another worker, says simply,
"People were afraid to support the union, even though they wanted it, for
fear of losing their jobs."
Despite charges by its own investigators that the company
was manipulating the process, the ALRB finally gave way in November of 2013 and
held an election. The ballots were all
impounded, and have yet to be counted pending the resolution of multiple legal
cases against the company. A Gerawan
statement claims, "We support [workers'] right to choose, but the ALRB
staff and the UFW do not. Our sole
message to our employees has never wavered:
'We want what you want.'"
The company campaign got the support of conservative
groups nationally. The Center for
Constitutional Jurisprudence, a far-right legal institute, filed briefs at the
appeals court together with grower associations. In recent years the Center has joined the
Harris v. Quinn suit against the Service Employees International Union in
Illinois, in which the U.S. Supreme Court undermined the ability of unions to
collect agency fees from non-members. It
has argued for Hobby Lobby Stores against birth control, and supported the
initiative to end affirmative action in Michigan.
Another Gerawan supporter is the Center for Worker
Freedom, which organized and financed demonstrations against the labor
board. The center was set up by Grover
Norquist's Americans for Tax Reform, allegedly with money from the Koch
brothers. The center's director, Matt
Patterson, first achieved notoriety when he managed the campaign against the
United Auto Workers two years ago, at the new Volkswagen plant in Chattanooga,
Tennessee. Employing a similar strategy, the Center bought billboards in
Sacramento attacking the UFW and the ALRB.
California growers and these conservative organizations
clearly view mandatory mediation not as a local issue, but a national one. The law could be extended to other states,
and the campaign's goal is to kill it before it spreads. If the Fresno appeals court decision is
upheld, the passage of laws mandating enforceable union rights for farm workers
in other states becomes much less likely.
