(UPDATED COVERAGE, Aug. 10) United Farm Workers members and workers at Manteca, Calif.-based Ace Tomato Co. Inc. are pushing the state’s Agricultural Labor Relations Board to impose pay levels set by a mediator.

About 50 tomato workers picketed the board’s offices in Sacramento Aug. 8. The board responded with an order asking Ace Tomato, among other things, whether it is treating the mediated contract as in effect, said Rob Carrol, a partner in Nixon Peabody. The law firm represents the company.

Mediator Matthew Goldberg’s report came out June 28, and was upheld by the board July 25. Ace Tomato plans to appeal within 30 days.

Goldberg’s mediation based wages on a contract reached in June between the union and Tracy, Calif.-based tomato grower-shipper Pacific Triple E Ltd. Ace Tomato offered an 8% increase to 54 cents per 30-pound bucket of round tomatoes, or $1.08 per round trip. Pacific Triple E agreed to $1.12, Carrol said. Ace offered $1.22 on romas, which get a premium.

“We’re going to ask for a stay of the ALRB-imposed contract until the court rules,” Carrol said. “If 2 cents more a bucket has to be paid for the season, there’s no way to get that money back if the court ultimately rules we should not have paid.”

“They can wait 30 days, but they still have to implement the contract now,” said Armando Elenes, national vice president for United Farm Workers. “It’s the same scenario as a jail sentence. You can file an appeal, but you still have to go.”

Among other objections, Ace Tomato views the Pacific Triple E contract as an unfair benchmark.

“They’re an international operation that goes year-round with Mexico and Florida,” Carrol said. “Ace is a small company that only hits the market August through November. There are economies of scale that Pacific Triple E has that Ace does not. The mediator did not consider that.”

Pacific Triple E finalized its contract without mediation.

According to board documents, Ace Tomato expected difficult economic conditions to continue in the near future, and the 8% offer was subject to renegotiation in the second and third years. The mediator found no threat to overall profitability.

“There are smaller operators than Pacific Triple E paying higher wages than Ace,” Elenes said. On the northern and lower-volume end of California’s tomato range, Pacific Triple E and Ace Tomato compete for the same labor pool, he added.

Wages aren’t the only issue, though. Tomato pickers are not direct employees of Ace Tomato, Carrol said, but paid by labor contractors who did not participate in negotiations.

“This is the first case that’s going to raise that particular issue,” he said. “How in the world can they be forced to pay a certain price per bucket for fresh green or roma tomatoes when they didn’t negotiate any of these terms? They’re the real parties of interest.”

Transplanting crews are also affected by the mediated contract that went into effect July 1; their pay is retroactive to April 1.

United Farm Workers and Ace Tomato have a history of interactions dating back to a 1989 union vote. Each side has accused the other of delay in one matter or another.

Immokalee, Fla.-based Lipman announced in July that it is acquiring Ace Tomato, and plans to integrate the packinghouse into its national operations after the end of this year’s growing season.