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Source: Gerawan Farming news release

On Monday, December 16, 2013, Gerawan Farming asked the California Court of Appeal (5th District) in Fresno, California, to review a sweeping challenge to the constitutionality of the so-called "Mandatory Mediation and Conciliation" (MMC) statute.

Under the MMC statute, an arbitrator is authorized by the Agricultural Labor Relations Board (ALRB) to dictate a binding, collective bargaining agreement (CBA) between an employer and a union, even where, as here, Gerawan objects to the State-ordered imposition of such a contract. The law applies only to agricultural unions and growers.

The United Farm Workers (UFW) asked the ALRB to apply the law to Gerawan. On November 19, 2013, the Board issued its Decision and Order to impose a forced contract on Gerawan and its workers. However, that Decision and Order are subject to review by the courts.

Gerawan contends this order violates the U.S. and California constitutions. On December 18, the Court ordered the parties to file briefs. A hearing date has not been set. The case is Gerawan Farming, Inc. v. Agricultural Labor Relations Board, Case No. F068526 (Fifth District Court of Appeal, filed Dec. 16, 2013).

Gerawan argues that federal and state labor laws are built on a foundation of allowing unions and employers the freedom to negotiate collective bargaining agreements. That freedom is protected by constitutional safeguards.

One of these - due process of law - bars a State agency from imposing an arbitrator-dictated contract on a private employer that has never refused to negotiate a contract with a duly-elected labor representative. Courts routinely strike down non-consensual arbitration laws. Gerawan contends that this should be the result here.

If the Court does not strike down the law as unconstitutional, Gerawan asks that the agreement written by the arbitrator not be enforced because Gerawan should not have been compelled into the MMC process in the first place. Said co-owner, Dan Gerawan: "The UFW should not be rewarded for abandoning the workers for the last 20 years. The UFW can claim no credit for the success of our workers, who are paid the highest wages in our industry."

Under the terms of the Board-ordered contract, the UFW would be given the right to demand that Gerawan fire workers who refuse to pay dues or fees to the UFW. "We don't think that it is right, fair, or consistent with the purposes of consensual collective bargaining in one of our State's most important industries to allow an absentee union to dictate whether our employees can keep their jobs."

In response to the UFW's reappearance and its claim to represent today's workers, Gerawan's employees initiated one of the largest sustained union decertification drives in California agricultural labor history. Following the Board's dismissal of the first decertification petition, some 1,500 workers walked off the job - an unprecedented protest against the ALRB and the UFW.

A second petition drive garnered some 2,600 worker signatures. After ruling that a majority of Gerawan's employees wanted an election to decertify the UFW, the Board held an election on November 5, 2013.

The Board has temporarily impounded the ballots pending post-election objections and challenges. Given this overwhelming support, Gerawan believes it is highly likely that, once the votes are counted, the UFW will be decertified.

Despite the election, on November 19, 2013, the Board summarily adopted the arbitrator's report, and thus approved the proposed three-year CBA. Two days later, the UFW filed an enforcement action in Sacramento Superior Court, and unsuccessfully sought immediate enforcement of the CBA.

The Superior Court held that the CBA could not be enforced pending Gerawan's statutory right to seek review of the Board's order before the Court of Appeal.

Gerawan called on the Board to count the ballots and release the results of the election. "We supported the election. The UFW opposed the election," said Dan Gerawan.

"The UFW hasn't stood for an election at Gerawan since 1990. For the better part of the last 20 years, the UFW has been a no show union at our farm. After nearly a quarter-century, it's time to let our workers - not the Board - decide what is in their best interests."

Gerawan argues that the contract cannot be ordered pending the outcome of an election that likely would oust the UFW and nullify any Board-imposed CBA. "We believe that a fundamental issue of workplace democracy is at stake," said Dan Gerawan.

"Thousands of workers demanded, and were granted, their right to vote. Those votes should be counted before a contract is imposed on our company and our workers."

In a separate proceeding pending in Fresno Superior Court, Gerawan is challenging a decision by the Board which excluded its workers from attending the "on the record" proceedings where the arbitrator determined the terms of the contract at issue in this lawsuit. "The workers are not even given the right to ratify this contract.

According to the Board, they cannot even silently observe as one decision-maker determines their economic future," said Mr. Gerawan. "We believe these proceedings should be open and transparent. The UFW believes that they should be conducted in secrecy."

A hearing on this matter is scheduled for February 20, 2014. The case is Gerawan Farming, Inc. v. Agricultural Labor Relations Board, et al., Case No. 13CECG03374 (Fresno Superior Court, filed Oct. 28, 2013).

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