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Desertion by ALRB Union Does Not End ALRB Certification

On Behalf of | Jan 2, 2018 | ALRB


The below article appeared in the November 28, 2017 Los Angeles Daily Journal regarding the outcome of a California Supreme Court ruling. The case involved the ongoing Agricultural Labor Relations Board (ALRB) certification of a collective bargaining election following a multi-year absence of the ALRB certified labor union. Sagaser, Watkins and Wieland PC served as counsel for the defendant, Tri-Fanucchi Farms.

California high court rules in case of farm workers’ contract

“In a win for farm laborers, the state Supreme Court ruled Monday that agricultural employers cannot use a defense that a union “abandoned” contract talks for many years as grounds to avoid a contract imposed by a state agency.

The longstanding rule that a farmworkers’ union is certified until its membership decertifies it still holds, the court said, both during the usual course of negotiations and in a post-negotiation “mandatory mediation and conciliation” process. Gerawan Farming Inc. v. Agricultural Relations Board, 2017 DJDAR 11179; Tri-Fanucchi Farms v. Agricultural Labor Relations Board, 2017 DJDAR 11171.

The justices upheld the constitutionality of the mandatory mediation and conciliation law – known as MMC- in the state Labor Code, something Gerawan Farming says it will petition to the U.S. Supreme Court.

“There are two federal constitutional issues- equal protection and due process,” said Gerawan’s attorney, David Schwarz of Irell & Manella LLP.

“The first goes to the arbitrary singling out of employers for MMC, the second goes to substantive due process protections under the 5th and 14th Amendment that- until now- have never allowed a state agency to impose a contract on a private employer.”

The 5th District Court of Appeal, following a dissent in a 4th District case, found the mandatory mediation law “on its face violates equal protection principles’ and it “improperly delegated legislative authority.”

Writing for the majority, Justice Goodwin Liu, however, wrote that the law had a rational basis for treating individual employers differently in the context of labor contracts.

The court also found that the law did not leave fundamental policy decisions to the Agricultural Labor Relations Board, but gave the board adequate direction to implement the Legislature’s policy.

After ruling on constitutionality, the court decided that the 5th District panel created an “untenable” distinction between enabling employers to use an abandonment defense during the mandatory mediation period but not during the course of normal negotiations- even if the pause in talks is 18 or 24 years.

In Gerawan Farming, the United Farm Workers of America was certified in 1992 and bargained until 1994, but did not resume until 2012, invoking mandatory mediation shortly thereafter. In Tri-Fanucchi Farms, the UFW was certified in 1977, but no bargaining occurred from 1988 to 2012.

Liu wrote the opinions in both cases, which were unanimous. Justice J. Anthony Kline of the 1st District Court of Appeal, sitting by designation, concurred.

“We’re extremely disappointed and felt that the court would recognize that a 24-year absence by a union, without explanation, would result in some form of equitable relief,” said Howard Sagaser of Sagaser, Watkins & Wieland PC, attorney for Tri-Fanucchi Farms.

“I think the statute was never intended to allow the union to be gone for 24 years and come back without affording employees some form of election,” Sagaser said. “I really feel the real losers are the employees themselves because they now have a union they never voted for.”

Sagaser added, “Based upon this ruling, the company will proceed to bargain in good faith with the union.”

The Supreme Court also ruled that the Court of Appeal improperly reversed the board’s determination that Tri-Fanucchi should pay its employees make-whole relief because of its refusal to bargain with the union.

“The dollar figure still must be worked out,” Sagaser said, “but it’s going to be potentially in the hundreds of thousands of dollars.”

In Gerawan, Liu noted that under the Agricultural Labor Relations Act, farm employers can file an unfair labor practice charge against a certified union representative “refuse[s] to bargain collectively in good faith,” and the “[f]ailure of a union to respond within a reasonable time will constitute a waiver of the right to bargain…”

He added, “What an employer cannot do under the ALRA is unilaterally declare that it will refuse to engage with the union because it believes the union has abandoned it employees.”

Liu noted that when the Legislature amended the law in 2002, it was aware of the rule that a union is “certified until decertified.” The board rejected the abandonment argument shortly after the law was enacted, and the Legislature had never modified or overruled that decision.

The justice noted that union members can hold an election to replace the existing union representative or decertify the union entirely if they are dissatisfied by an absence from the negotiating table.

In the case of Gerawan Farming, Schwarz said he found this argument weak.

“A majority of workers asked for the right to make that decision for themselves. The board gave them that right when it held a decertification election over four years ago. It then impounded the ballots, imposed the ballots, imposed a contract, and set aside the election,” he said.

Another challenge is pending before the 5th District Court of Appeal, a petition filed by workers arguing that the ballots cast in a November 2013 election be counted.

“Nothing in today’s decision bars these ballots from being counted,” Schwarz said Monday. “Based on the Supreme Court’s holding, counting these ballots is the only way to vindicate the workers’ right to choose.”

If you have any questions or concerns about your agricultural business complying with Agricultural Labor Relations Board requirements or about labor contracts in 2018, please contact Sagaser, Watkins and Wieland PC at 559-421-7000.