08.02.14 10:45 AM ET
A Crazy California Union Scandal
At their best, labor unions are something simple: they bring employees who share the same workplace into a collaborate relationship—independent not only of management, but also of any outside supervisors.
At their worst, unions aren’t bottom-up organizations. They are, in effect, a new set of rules imposed unilaterally from above. Rather than helplessly obeying the dictates of management, workers are obliged to do what union bosses tell them. Even if employees actually share a close working relationship with their employers, that affinity and the agreements it produced are cast aside.
If that sorry picture sounds overwrought, consider the recent actions taken by United Farm Workers in California and the state’s Agricultural Labor Relations Board.
In California, the ALRB is sort of an industry-specific version of the federal National Labor Relations Board. It was signed into law in 1975 by Gov. Jerry Brown, who tried to balance the five-member board by appointing a mix of pro-union and pro-business figures. The board wound up siding strongly with unions, but as time went on, the ALRB’s role faded as union membership declined.
Now, only three members sit on the board. They all were originally appointed by Gov. Gray Davis, and appointed again by Brown after he returned to office in 2010. This past March, Brown appointed a new chairman to the board.
According to the board’s website, the ALRB is responsible “for conducting elections to determine whether a majority of the employees of an agricultural employer wishes to be represented by a labor organization, whether they wish to continue to be represented by that labor organization, a rival labor organization or no labor organization at all.” As the Gerawan ordeal reveals, however, the current board seems to lack such a balanced vision of its mandate.
That’s where UFW comes in. In 1990, UFW was voted in as the labor representative at Gerawan Farms, a family-owned employer of thousands of workers. Two years later, UFW was certified by the ALRB. But two years after that, UFW walked away from its negotiations with Gerawan, unable to muster adequate worker support.
The logical conclusion was that the union, whose membership had markedly declined over the years, had thrown in the towel completely. But in 2012, UFW returned, demanding a fresh round of negotiations based on the 1990 election. Gerawan consented, but after a few months at the table, UFW balked again. This time, however, it called upon the peculiar services of the ALRB.
Under California law, the ALRB can do extraordinary things. Foremost among them, it can authorize an arbitrator to singlehandedly write a labor contract and enforce it, imposing terms on employers and employees alike.
This is what UFW asked for, even though almost no employees remained at Gerawan who voted in the union back in 1990. And this is what the ALRB delivered, over the strenuous objections of Gerawan’s owners and—Gerawan’s employees.
That’s right—Gerawan’s employees demanded that their actual voices be heard, through a fresh election that could decertify UFW if workers desired. Remarkably, thousands of Gerawan employees staged protests against the union, including walkouts. With the workers’ petition for a new vote commanding thousands of signatures, the ALRB finally gave a fresh election the green light.
But then the story became even more bizarre. After the election was held at the end of 2013, the ALRB wound up impounding the ballots and approving the contract the arbitrator had drawn up.
And that’s when a group of Gerawan workers actually filed a federal lawsuit against the ALRB—claiming that their civil rights had been violated, and asking that their ballots be unsealed and counted.
One does not have to be a Koch brother to detect how badly the conduct of UFW and the ALRB stinks. But even though the political agendas of the two organizations are suspect, the real scandal is how California regulations have permitted both the union and the board to try “resolving” the “dispute” with Gerawan by violating some of the most basic guarantees of the rule of law.
Regardless of how earnest or honest were those who purported to act on your behalf, if you could not vote for your own representatives, and if you had your labor contract arbitrarily written and enforced by a public official, you would know that you were not free.
Yet the ALRB is arrogant enough, and UFW are seemingly desperate enough, to run risk both a public relations disaster and an adverse landmark decision. The ALRB filed to dismiss the Gerawan workers’ suit, but that motion has now been denied in part by Federal District Court Judge Lawrence O’Neill.
Not only did Judge O’Neill hold that the suit presents a plausible claim of “forced association,” in violation of workers’ First Amendment rights. He also ruled that the ALRB could not claim something called “quasi-judicial immunity” from the suit—and that ALRB Regional Director Silas Shawver, who personally rejected the workers’ petitions for a vote, could not claim something else called “quasi-prosecutorial immunity.”
Those Orwellian terms reveal the heart of the problem: In seeking to ram through UFW “representation,” the ALRB is acting both as judge and as virtual attorney for the union.
It’s no surprise that such an abuse of the principle of separation of powers raises fundamental questions about their constitutionality. It is, however, quite shocking that Gerawan’s workers must contend with that level of abuse in the twenty-first century.
Californians and others know that the state’s agriculture industry is not what it was in the brutal days before Cesar Chavez. That’s not to say unions should pack up and leave California. It is to suggest that UWF has embarked on what could well become a suicide mission—discrediting itself and the ALRB so deeply that neither organization might recover.
Too frequently, recalibrating labor law in America requires a battle of big money and bigger egos. The Gerawan case should remind us that the most powerful source of important reform could be workers themselves.