After Five Years Of Forced Unionization, Farmworkers Are Now Free To Negotiate On Their Own

Tuesday, October 9, 2018
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Imagine hiring an organization to represent you in negotiations, but after hiring them you find out that their representation is unsatisfactory. So you fire them.

But how would you respond if you were forced to retain the inadequate representation for five years after you chose to fire them? And you were forced to retain them only because a state regulatory board was unwilling to recognize your wish to fire them?  And the regulatory board was so committed to the other party that it did not permit you to fire the organization until essentially being forced to by a state supreme court ruling?

This may sound ludicrous, but it is what happened to the farmworkers employed by Gerawan Farms, California’s largest stone-fruit farm. Gerawan Farms was unionized in 1990 by the United Farm Workers (UFW). But by 1995, the Gerawan workers had become dissatisfied with the UFW’s representation and turned down a UFW-negotiated contract.

According to the owner of Gerawan Farms, the UFW disappeared after 1995. But after seventeen years of absence, the UFW returned in 2012.  It is not coincidental that the UFW showed up in 2012, because in that year there was a new state mandatory mediation law that allowed the union to impose a contract even if the represented workers disapproved of it. The UFW imposed a contract in 2012 that the Gerawan farmworkers did not want. The workers responded by taking a vote in 2013 to determine if enough members preferred to fire (decertify) the UFW as their collective bargaining representative.

But a funny thing happened after the workers voted and the votes were sent to California’s Agricultural Labor Relations Board (ALRB) for certification. The ALRB decided not to count the votes. Why? Because it was lobbied by the UFW. The UFW was obviously aware of the Gerawan farmworkers’ dissatisfaction, not only over the 2012 contract that had been imposed but also for the lack of representation over the previous seventeen years. The UFW was worried for good reason about the outcome of the decertification election and lobbied the ALRB to not count the votes by arguing that the decertification votes were tainted.

This appears to be a serious allegation. But dig a bit deeper, and you will see that this allegation turns out to be nothing more than an eleventh-hour Hail Mary by the UFW to keep in the game. There were no allegations that the votes were fraudulent or coerced in any way. Rather, the UFW argued that the votes might not reflect the “true preferences” of the workers.

But if the votes were not fraudulent or coerced, what could this mean? The UFW Hail Mary contended that (1) Gerawan Farms engaged in unfair labor practices, (2) these practices led some workers to vote for decertifying the union, and (3) way deep down in their psyches, some of the workers who voted for decertification actually wanted to keep the union.

Before asking whether this remotely approaches a reasonable argument, note that unfair labor practices are those that presumably do harm to workers. Some of the most commonly alleged unfair labor practices by an employer are interfering with worker rights, discriminating against workers, particularly for union-related activities, and refusing to bargain. 

Not surprisingly, giving the workers a raise is not a widely cited unfair labor practice. Yet two of the unfair labor practice actions identified by the UFW are two separate wage increases granted by Gerawan Farms to their workers that did not involve the UFW.

Yes, the UFW actually objected to the workers they represent receiving higher wages. This is the type of silliness that emerges when government doesn’t trust market outcomes and individual freedom is suppressed in favor of politically important lobbies, such as the UFW. 

The other two unfair labor practices were that Gerawan Farms permitted a small number of decertification ballots to be signed during the lunch hour on a workday, and that it allowed one of the workers extended absences from work to speak with other workers about decertification.

So the question boils down to whether these actions—two wage increases not approved by the UFW, collecting a small number of ballot signatures while on the job, and giving extended absences to a worker promoting decertification—were so important that these actions brainwashed workers into voting for decertification. 

This is the UFW argument that the ALRB had to evaluate in 2013. And keep in mind that the UFW had many opportunities to engage the Gerawan workers to convince them of the benefit of UFW representation by organizing cookouts, parties, and other free outings for the workers.

It is hard to imagine a less compelling argument to prevent a vote count than the UFW’s “Hey, the farm owner gave them raises while leaving us out of the loop! And he gave time off to one of those anti-union rabble-rousers! And he let a foreman bring his crew together at lunch one day to sign a petition! The votes are tainted!”

But the ALRB went along with the UFW’s Hail Mary hook, line, and sinker, and chose not to count the decertification votes. By siding with the UFW, this meant that the UFW continued to be the sole representative of the Gerawan farmworkers for years after the 2013 vote.

The workers appealed the ALRB decision, and the Fifth Court of Appeals ruled in their favor, arguing that the ALRB was so focused on punishing Gerawan Farms that it lost sight of the “value of protecting the farmworkers’ right to choose, which was and is a fundamental part of the Board’s mission.”

But the appellate court’s decision wasn’t enough to lead the ALRB to count the farmworkers’ votes. It was not until the state supreme court upheld the lower court’s ruling last month, roughly five years after the initial vote, that the ALRB counted the ballots and found that workers had overwhelmingly voted to fire their union representation.

The workers were finally free from the union. Much to the chagrin of the UFW. 

The primary role of government is to protect the rights, freedom, and property of its citizens. It is hard to find a more blatant violation of this principle than what the ALRB did to the farmworkers over the last five years in favor of a politically important lobby. Not to mention the hundreds of thousands of dollars spent to prevent workers from exercising their free choice.