A long-running dispute between Fresno, Calif.-based Gerawan Farming and the United Farm Workers union has taken another twist, with the Agricultural Labor Relations Board ruling that Gerawan engaged in bad faith bargaining with the union in 2013.
Gerawan maintains that it bargained in good faith and plans to appeal the April 14 ruling, according to a news release.
William Schmidt, the administrative law judge for the ALRB who issued the 65-page decision, ordered Gerawan to cease and desist bargaining in bad faith, to compensate employees for wages lost due to its failure to bargain in good faith, and to make widely available to employees an official notice of the ruling.
Schmidt cited as evidence Gerawan’s presentation of proposals UFW was unlikely to accept; its informing employees of pay increases with minimal consultation of the union and with emphasis that it was the company’s decision to raise wages; and what Schmidt described as previous efforts to “undermine and dislodge” the union.
Gerawan based its opposition to the ruling partly on the manner in which the discussions between it and UFW unfolded.
After UFW and Gerawan failed to come to an agreement, ALRB invoked a law that allows for mandatory mediation and conciliation, meaning an ALRB arbiter would decide the terms of the contract.
“This unprecedented ruling would punish an employer for failing to ‘negotiate’ the terms of a ‘contract’ dictated and imposed by the ALRB,” Gerawan said in the release. “This is an in-house judge who is not independent; he is an employee of the ALRB. He criticizes Gerawan’s positions and second-guesses how it participated in what was supposed to be a confidential mediation and trial-like arbitration, but he never asked the only relevant question: How does this forced contracting process resemble a ‘negotiation’?”
The constitutionality of the law that allows for mandatory mediation and conciliation, and whether a union’s long-term absence qualifies as a defense, are currently pending review by the California Supreme Court, which agreed in 2015 to review the case.
Gerawan describes the mandatory mediation and conciliation procedures as coercive.
“It is forced contracting,” Gerawan said in the release. “The ALRB tells the employer what wages to pay, what employees to hire, or fire, or promote, and what portion of the employees’ salary will be turned over to the union. The employer may not opt out and the employees are not given the choice to ratify or reject the so-called contract that will be forced on them, even if there are provisions detrimental to them.”
The company has also argued that the union doesn’t represent the workers because it had been absent since the early 1990s until it reappeared in 2012. Fewer than 1% of its current workforce voted in the 1990 election, according to the release.
Schmidt, however, cited a provision that states that, once elected, a union represents workers unless it is decertified or becomes defunct. Schmidt also placed the onus for the communication gap of more than 20 years on Gerawan, assigning UFW no responsibility in the matter.
Gerawan employees voted in 2013 on whether to decertify the union, which takes 3% dues, but the ALRB refuses to count those votes because it determined that Gerawan interfered in the process.
Among the areas of contention in bargaining was UFW’s proposal of a “union shop,” which required that all Gerawan agricultural employees become union members and that employees who do not become members must be fired.