Gerawan Farming, Inc. v. Agric. Labor Relations Bd.
| Decision Date | 15 July 2020 |
| Docket Number | F077033 |
| Court | California Court of Appeals Court of Appeals |
| Parties | GERAWAN FARMING, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; United Farm Workers of America, Real Party in Interest. |
Irell & Manella, David A. Schwarz, Los Angeles; Barsamian & Moody, Ronald H. Barsamian and Patrick S. Moody ; Michael P. Mallery, Fresno, for Petitioner.
Santiago Avila-Gomez, Todd M. Ratshin and Laura F. Heyck for Respondent.
Martinez Aguilasocho & Lynch and Mario Martinez, for Real Party in Interest.
This writ proceeding addresses a decision by the Agricultural Labor Relations Board (ALRB or Board) that agricultural employer Gerawan Farming, Inc. (Gerawan) committed unfair labor practices by (1) engaging in bad faith "surface bargaining," and (2) insisting on the exclusion of workers employed by farm labor contractors (FLC workers) from the core benefits of any collective bargaining agreement (CBA) reached between Gerawan and the United Farm Workers of America (UFW or Union). The Board's findings were based on Gerawan's bargaining conduct both before and after the Board ordered the parties to "mandatory mediation and conciliation" (MMC) under the MMC statutory scheme, Labor Code section 1164 et seq.1 To remedy these violations, the Board awarded make-whole relief for the period January 18, 2013, to June 30, 2013.
Gerawan contends (1) the MMC statute does not authorize the Board to impose unfair labor practice liability for its bargaining conduct within the MMC process, (2) the Board lacks the power to impose make-whole relief when a party is engaged in MMC, and (3) the Board's unfair labor practice findings are erroneous, arbitrary, and unsupported by substantial evidence. Gerawan also contends the Board erred when it denied its prehearing motion to disqualify one of the Board members who participated in this proceeding. Finding no merit to Gerawan's arguments, we affirm the Board's decision.
Gerawan, a family owned farming business, is the largest tree fruit grower in California. In addition to growing and harvesting tree fruit such as peaches, nectarines, plums and apricots, Gerawan grows and harvests table and wine grapes. Gerawan's extensive farming operations are conducted on thousands of acres of farmland in two main locations: the west side ranches in the Kerman area, and the east side ranches in the Reedley/Sanger area.
Gerawan classifies its direct-hire employees as either "cultural" or "crew" labor. Cultural labor, which generally works year round, includes jobs such as water truck and tractor drivers, mechanics, irrigators, and nursery workers, while crew labor performs seasonal work such as harvesting and pruning. When Gerawan needs more workers, it often obtains them through farm labor contractors, whose employees perform the same work as crew labor. In 2013, Gerawan employed about 5,000 workers annually in both seasonal crew and year-round cultural jobs, and hired between 800 and 1,500 agricultural employees through farm labor contractors.
The UFW is a labor organization within the meaning of section 1140.4, subdivision (f). In 1992, following a contested runoff election, the Board certified the UFW as the exclusive bargaining representative of Gerawan's agricultural employees. It appears the parties held one in-person negotiating session in February 1995, but they never entered into a CBA.
No further bargaining occurred for the next 17 years until UFW National Vice President Armando Elenes sent Gerawan a letter on October 12, 2012, asking to recommence negotiations. Elenes asked Gerawan to provide 10 categories of information for Gerawan's agricultural employees, which included: (1) employee lists for all direct-hire and FLC workers for the 2011 and 2012 seasons, indicating, among other things, their hire dates, wage rates, and physical and mailing addresses; (2) names, addresses and license numbers of any farm labor contractors Gerawan used; (3) a detailed summary of any benefits, vacation pay, bonuses, holidays, piece rates and wages provided to employees for 2010 through 2012; and (4) copies of any current employee manuals or policies. Elenes proposed to start negotiations at the beginning of December. After receiving no response, Elenes sent a second letter on October 30, 2012, which repeated the Union's request to begin negotiations and for the information. Elenes threatened to file an unfair labor practice (ULP) charge with the ALRB if he failed to receive a response within five days.
Gerawan responded on November 2, 2012, by a letter signed by Gerawan's owners Ray, Mike and Dan Gerawan. They stated they were putting the requested information together, but after not hearing anything from the Union for over 20 years, they needed time to review the renewed demand to bargain and determine Gerawan's bargaining obligation, if any. They questioned how to explain to their employees, most of whom did not participate in the election, that they would "now have a contract and dues thrust upon them by a union they never voted for and who abandoned them 20 years ago." Nevertheless, Gerawan stated it would send information in the "next week or so" and have an attorney contact Elenes to schedule negotiations. Gerawan produced some of the requested information in December 2012.
Gerawan and the UFW met for their first negotiation session on January 17, 2013. Eight more sessions were held over the next two months.2 Throughout the negotiations, the lead negotiators were attorney Ronald Barsamian for Gerawan and Elenes for the UFW. The UFW provided its initial contract proposal at the first session, while Gerawan presented its initial contract proposal at the second session on January 18, 2013. Before March 29, 2013, Gerawan and the UFW each made four other contract proposals. The UFW did not make any economic proposals during this time.
In March 2013, Gerawan announced hourly pay raises through a series of flyers, which indicated the decisions to grant pay raises were from "Ray, Mike, and Dan Gerawan," and claimed Gerawan consistently paid higher wages than other companies in the industry. The flyers did not credit the UFW for these pay raises; rather, they expressed the raises were solely Gerawan's decision and noted the Union was informed of the "proposed plan, and we assume they will not cause any unnecessary delay." The UFW accepted the proposed wage increases. At that point, the Union had not made a wage proposal, as it was waiting for some outstanding items it had requested.
On March 29, 2013, the UFW asked the ALRB to direct the parties into MMC, which the Board did on April 16, 2013. (Gerawan Farming, Inc. (2013) 39 ALRB No. 5.) On April 2, 2013, while the UFW's request was pending before the Board, Gerawan and the UFW engaged in a negotiation session. After being ordered into MMC, the parties selected a mediator, Matthew Goldberg, who was appointed in May 2013. Goldberg provided available dates for the mediation and the parties agreed to meet with him on June 6 and 11, 2013, when off-the-record MMC sessions were held.
At the mediator's request, Gerawan and the UFW continued to negotiate outside the mediator's presence while the MMC process was ongoing. The parties met on June 3, 2013, before the first MMC session. Gerawan presented a revised proposal to the UFW, while the UFW prepared a matrix which compared the parties' positions. Thereafter, the parties held bargaining sessions on July 1, 24 and 29, 2013, outside the mediator's presence. The UFW made its first economic proposal on July 21, 2013. The parties subsequently exchanged matrixes which set out the parties' proposals and supporting arguments on those terms they had not reached an agreement.
The mediator conducted two days of on-the-record MMC proceedings on August 8 and 19, 2013. As the parties were unable to voluntarily agree to all terms of a CBA, Goldberg issued a report to the Board on September 28, 2013, which fixed the CBA's terms.3 (Gerawan Farming, Inc. (2013) 39 ALRB No. 16, p. 1.) Gerawan petitioned for review of Goldberg's report, which the Board granted as to several terms. The Board remanded the matter to Goldberg in accordance with section 1164.3, subdivision (c). The parties met with Goldberg and reached agreement on the remanded terms, which Goldberg incorporated into a second report dated November 6, 2013. (Gerawan Farming, Inc. (2013) 39 ALRB No. 17, p. 2.) No party requested review of the second report and the Board ordered it to take effect as a final order of the Board.
Gerawan petitioned for review of the Board's order, contending, among other things, that the MMC statutory scheme was unconstitutional. While this court agreed the MMC statute was unconstitutional, the California Supreme Court held "the MMC statute neither violates equal protection nor unconstitutionally delegates legislative power." ( Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118, 1130, 225 Cal.Rptr.3d 517, 405 P.3d 1087 ( Gerawan Farming I . ).) The court also held "that employers may not refuse to bargain with unions—whether during the ordinary bargaining process or during MMC—on the basis that the union has abandoned its representative status." ( Id. at p. 1131, 225 Cal.Rptr.3d 517, 405 P.3d 1087.) The court remanded the matter to us with instructions to conduct further proceedings consistent with its opinion. ( Id. at p. 1160, 225 Cal.Rptr.3d 517, 405 P.3d 1087.)
During the course of negotiations, the UFW filed a number of ULP charges against Gerawan. As pertinent here, the Board's general counsel issued complaints that encompassed three of those charges the UFW filed in 2012 and 2013. The charges were later consolidated into a third...
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