Fruit grower Dan Gerawan’s decades-long fight with the UFW
The signs along the driveway into Gerawan Farming warn away job seekers, visitors and anyone trying to take photographs or record video.
Dan Gerawan, president of the growing and packing company in the eastern San Joaquin Valley, said those measures aim to protect business secrets at the state’s biggest producer of peaches, plums and other stone fruit.
Others see the signs as a not-so-subtle message to the United Farm Workers of America, which is trying to bring Gerawan’s 3,000 fieldworkers under a labor contract, more than two decades after winning the right to represent them.
The widely watched struggle between Gerawan Farming and the UFW has altered the labor-grower battlefield — overthrowing the state’s right to impose labor contracts through a mediator and revealing internal rifts and shortcomings at the board charged with keeping labor battles peaceful and brief.
The California Supreme Court now is being asked to review a lower court’s rejection of the so-called mandatory mediation and conciliation provision of the Agricultural Labor Relations Act, a law signed by Gov. Jerry Brown in his first term 40 years ago.
Should the decision in the Gerawan case stand, power could shift decisively toward growers, and the lengthy stalemates that once marked collective bargaining could return.
Meanwhile, Gerawan workers, reportedly among the highest paid in the industry, have tried to decertify UFW as their official bargaining representative. Several thousand ballots they cast nearly two years ago remain impounded, however, as an administrative law judge weighs whether Gerawan Farming instigated and abetted the vote.
The election proceeding, which also involved a handful of unfair labor allegations, took up nearly six months of hearings and produced some 20,000 pages of testimony from about 130 witnesses.
So it came as no surprise that William B. Gould IV, appointed by Brown last year as chairman of the Agricultural Labor Relations Board, marked the 40th anniversary of the act by bemoaning “litigation without end” and a “500-pound gorilla” blocking the peace in the fields promised by the statute.
“I’m not unused to turmoil and controversy,” Gould said. “It really kind of goes with the turf. But it hasn’t been easy.”
Gould appears to have a clear path toward refocusing the board after its general counsel, Sylvia Torres Guillen, resigned late last month to take a position as counsel to the governor. The move was viewed as a diplomatic parting after clashes with Gould, predominantly over the Gerawan case. Torres Guillen could not be contacted for comment.
Both the UFW and Gerawan agree with Gould that the balance of power on the agricultural labor board needs adjustment. But they don’t necessarily agree on what should be done.
The five-member panel oversees elections and evaluates labor complaints, and the general counsel, appointed separately by the governor, investigates unfair labor practices and issues complaints, somewhat like a district attorney.
“We think the general counsel’s office has certainly done her part to enforce the law,” UFW attorney Mario Martinez said. But the board, he said, “has a long way to go to fulfill its purpose.”
David Schwarz, an attorney for Gerawan, believes that the general counsel and some of her staff hewed too closely to the UFW’s agenda.
“The bulk of the business of the ALRB right now is dealing with either the prosecution of Gerawan or reacting to the UFW’s efforts to try to stop decertification elections,” Schwarz said.
The Gerawan case dates to 1990, when the UFW won a runoff election against another union to represent the company’s workers.
After some disputes, the board certified the election in 1992. The UFW offered a contract proposal in 1994, which Gerawan rejected. The union then effectively disappeared from Gerawan’s fields.
In the meantime, the state Legislature in 2002 amended the agricultural labor law to allow a mediator to impose a contract on stalled negotiators. In 2011, it amended the law again to speed up that process. Eight months later, the UFW offered a contract proposal.
Dan Gerawan believes that the UFW returned to the table with the intent to let time expire so a mediator could impose a contract, which would nearly double the UFW’s paying membership.
“During that entire 18 years — I don’t care what any UFW timeline shows — not one phone call from UFW, not one fax … not one inquiry on behalf of our employees, no notice to take access to our fields, no unfair labor practices filed. Nothing. Zero,” Gerawan said.
Martinez said the union made 14 contract offers but did not specify when those overtures were made. A UFW timeline makes no mention of any contract offer between 1995 and 2012.
After talks stalled, a mediator imposed a contract, and the ag labor board approved it in the fall of 2013. The contract called for yearly wage increases, vacation benefits, a grievance procedure and tightened procedures for terminating workers. Dan Gerawan sued to overturn the mediator’s action, claiming that the state law unconstitutionally deprived him of equal protection and that procedural errors had been made.
By then, though, workers at Gerawan Farming had begun organizing an election aimed at decertifying the UFW, which would collect dues of 3% of workers’ gross pay under the contract.
The staff of the ag labor board blocked petitions to hold the vote, saying the process was too polluted by influence from Gerawan management. The board, however, overruled those objections and ordered the elections, which were held in November 2013.
Objections from the UFW and charges of unfair labor practices from the general counsel’s office eventually pushed the issue into the hands of an administrative law judge. That six-month proceeding ended in May, and an opinion on whether to validate the election is expected to be sent to the board soon.
Dan Gerawan, meanwhile, won his challenge before the 5th District Court of Appeal in Fresno. It is that court’s ruling in May that is now before the state Supreme Court.
Throughout the election hearing and the court case, Gould repeatedly clashed with Torres Guillen, the general counsel, accusing her of misunderstanding her role in handling election-related labor complaints and of taking litigation positions that conflicted with the board’s responsibilities, according to court records and board documents.
Gould eventually reined in the general counsel’s authority to seek court orders without prior consent of the board.
“We do so because we believe that the litigation positions taken by your office do not comport with settled law and are not only erroneous, but even prejudicial to the board’s role as the primary interpreter of rights and responsibilities arising under the ALRA,” the board wrote in March.
Then, in May, a whistle-blower from the board’s Visalia office alleged that declarations from Gerawan workers in a case being handled by Torres Guillen were misleading or false. An investigation is underway, Gould said.
Six weeks later, Torres Guillen was appointed special counsel to the governor.
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