WSJ's Finley Downplays Legal Violations By Employer

WSJ's Finley: Employer Interference “Amounted Mainly To A 'Well-Timed' Raise.” In an October 2 op-ed, editorial writer Allysia Finley wrote about a recent ruling from California's Agricultural Labor Relations Board (ALRB) Administrative Law judge Mark Soble disqualifying an election to end a United Farm Workers union at Gerawan Farming. Finley describes the ruling as the ALRB teaming up with the UFW to “shake down workers” and glosses over the illegal acts of the employer (emphasis added):

In the tradition of the Obama administration's pro-union shenanigans with the National Labor Relations Board, California's Agricultural Labor Relations Board (ALRB) has teamed up with the United Farm Workers union to shake down workers at the state's largest tree-fruit grower. Gerawan Farming, a third-generation family farm in Fresno, is trying to fend off the attack.

On Sept. 17, ALRB administrative-law judge Mark Soble issued a long-awaited decision on whether to count the Gerawan workers' ballots cast in 2013 to decertify the UFW. Given the ALRB's pro-union bias, Mr. Soble's decision to throw out the ballots, disenfranchising thousands of workers, wasn't surprising. Unlike other California agencies, the ALRB employs in-house administrative-law judges to arbitrate complaints. Still, both management and workers at Gerawan Farming were disappointed.

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During the summer of 2013, Gerawan workers began collecting signatures to hold a referendum to decertify the union.

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In September 2013, Gerawan workers submitted roughly 2,000 signatures, well above the 1,300 necessary to hold a referendum. About 2,500 were eligible to cast ballots. But Mr. Shawver claimed that 1,000 of the signatures couldn't be verified. Gerawan workers submitted 1,000 more signatures. Mr. Shawver then used the pretext of pending UFW complaints and illegal employer interference in signature-gathering to block an election. After Gerawan workers protested in Sacramento, the ALRB ordered a secret-ballot election in November 2013. Staffers from the labor board supervised the voting. Nevertheless, the UFW filed numerous complaints contesting the election and preventing a final ballot count.

On Sept. 17, Mr. Soble discarded the ballots because of alleged employer interference with the collection of signatures, which he claimed “tainted the entire decertification process.” This interference, according to Mr. Soble, amounted mainly to a “well-timed” raise granted to workers by Gerawan, undermining support for the union. [The Wall Street Journal, 10/2/15]

Judge Found The Employer Violated The Law In Numerous Ways During Decertification Campaign

LA Times: Employer Interfered With Distribution Of Campaign Literature. In a September 18 article, the Los Angeles Times reported the judge found that Gerawan Farming allowed anti-union campaigning, while barring the other side:

The judge, Mark Soble, found that Gerawan Farms unduly influenced the 2013 decertification effort by giving preferential treatment to workers organizing the campaign, including introducing them to a funding source.

In addition, the judge found, Gerawan Farms allowed pro-decertification workers to distribute literature during the workday but prohibited pro-UFW workers from doing so.

“Given that the unlawful conduct tainted the entire decertification process, any election results would not sufficiently reflect th unrestrained free expression of the bargaining-unit members,” the judge said in the decision. [Los Angeles Times, 9/18/15]

Associated Press: Judge Found $20,000 Unlawfully Given To Decertification Effort, Workers Blocked To Gather Signatures. On September 18, AP reported that a Gerawan Farming employee working against the union was illegally given $20,000 to fight the union, and that farm workers were physically blocked from the worksite to collect signatures against the union:

The decision says a Gerawan employee, Silvia Lopez, unlawfully asked for and received $20,000 from a fruit growers association affiliated with Gerawan to fund the anti-union fight. It says that on one day, Lopez physically blocked workers from the farm to collect roughly 1,000 signatures calling for a vote to reject the UFW, and Gerawan unfairly granted Lopez time off work to lead the effort.

Gerawan also made a “well-timed” wage increase to win the favor of workers, Administrative Law Judge Mark Soble said, citing evidence he considered to dismiss the petition that sought the vote.

“The misconduct created an environment which would have made it impossible for true employee free choice when it came time to vote,” Soble's ruling concludes. [Associated Press, 9/18/15]

Judge's Ruling Lists Multiple Violations From The Employer. Judge Mark Soble ruled after hearing testimony from over 100 witnesses. The judge found multiple instances of “unlawful assistance” from the employer in the decertification campaign:

By providing unlawful assistance to the decertification effort, Gerawan committed unfair labor practices under California Labor Code section 1153. This assistance included allowing work-time signature gathering and granting the petitioner a “virtual sabbatical” to run the decertification campaign. Gerawan also committed unfair labor practices by its enhanced efforts to directly solicit grievances and by making a “well-timed” unilateral wage increase.

Petitioner Silvia Lopez solicited and received an unlawful twenty thousand dollars donation from the California Fresh Fruit Association, an association of agricultural employers of which Gerawan was a prominent dues-paying member. Her legal team, specifically attorney Joanna MacMillan, assisted in this transaction. There is powerful circumstantial evidence to suggest that the company knew about this donation beforehand. The Petitioner also violated the rights of other workers by blocking company entrances on September 30, 2013 as a means to collect approximately one thousand signatures from workers that day.

Given the totality of these circumstances, and especially in tandem, the unlawful actions of the California Fresh Fruit League, Gerawan Farming, and Petitioner Silvia Lopez make it impossible to know if the signatures collected represent the workers' true sentiments. Similarly, the misconduct created an environment which would have made it impossible for true employee free choice when it came time to vote.

As a result of the employer's unlawful support and assistance, I am setting aside the decertification election and dismissing the decertification petition. (Abatti Farms (1981) 7 ALRB No. 36, at page 15) Given that the unlawful conduct tainted the entire decertification process, any election results would not sufficiently reflect the unrestrained free expression of the bargaining unit members. [State Of California, Agricultural Labor Relations Board, September 2015]

CORRECTION: A previous version of this post mislabeled the United Farm Workers as the United Food Workers. Media Matters regrets the error.