An administrative law hearing that could determine whether more than 3,000 workers at the nation's biggest peach farm are unionized got heated on Thursday after a lawyer for Gerawan Farming accused the chief prosecutor in the case of playing "hide and seek" with evidence and witnesses.
As CNBC reported last year, Gerawan was surprised when the UFW returned to the farm in 2012—after a 20-year absence—to demand negotiations on a labor contract.
Testimony on decertification before Mark Soble, an administrative law judge with the California Agricultural Labor Relations Board (ALRB), is in its seventh week and resuming Friday morning in Fresno, California. ALRB's General Counsel Sylvia Torres-Guillen, who is responsible for investigating and prosecuting the case, has alleged that Gerawan Farming carried out unfair labor practices, engaged in bad-faith bargaining, and tainted workers.
Gerawan argues differently.
"This case from the beginning has been hide and seek by the general counsel," said Ronald Barsamian, an attorney for Gerawan. "We're still waiting for the UFW to put on its case—let alone the ALRB. If it's not hide and seek, it's just not preparing adequately for this case."
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The allegations against Gerawan—America's largest grower of peaches, plums and nectarines—are contained in a 28-page consolidated complaint filed in early September. ALRB's Torres-Guillen, who was appointed to the job in 2011 by Governor Jerry Brown, is a former federal attorney who has issued five complaints so far against Gerawan following an investigation by state agents.
On Thursday, two new witnesses testified before the judge: Louise Villagrana, a manager for charter bus company Classic Charter, and Jeanette Mosqueda, an administrative assistant for the UFW. The two were on an email exchange dating from October 2013 that raised questions about whether Gerawan was involved in supporting or encouraging protest activities to decertify the UFW. Two weeks ago, a rep from the union reported the email to the ALRB.
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On Thursday, the judge grew frustrated with the ALRB staff attorneys over witness scheduling delays and later criticized them for failing to uncover the email document on their own during an earlier 10-month investigation.
"As soon as we knew about it, we informed (ALRB) general counsel," UFW attorney Ivan Aguilasocho told the judge. Asked why the union didn't know about the existence of the email earlier, he responded, "I think at this point it's an internal matter."
Barsamian shot back that the UFW was wrong to be "laughing this off as an administrative problem. UFW had duty to secure this information and turn it over."
At the center of the labor dispute is Dan Gerawan, who runs the family farming business in San Joaquin Valley. The company's fight with the UFW dates back to 1990, when farm worker leader Cesar Chavez led a campaign to represent Gerawan Farming's workers. By 1992, the state certified the UFW to represent the workers. There was one preliminary bargaining session in 1994, and the union claims it attempted again but never received a counter proposal from Gerawan and that any efforts to negotiate through traditional bargaining were unsuccessful.
Gerawan sees it differently, saying the union had a nearly 20-year absence.
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"The whole process is very troubling to us, because you have to remember this is a union that was gone for 18 years," said Dan Gerawan in an interview Thursday. "During that entire time, they had no contact with us. Then they come back suddenly and their only message to the employees is we're going to take 3 percent of your pay, or you're going to lose your job."
The ALRB General Counsel Office already has called on more than 50 witnesses to testify since the case started on Sept. 29, and next week it's expected to introduce petitioner Sylvia Lopez, a Gerawan farmworker who is leading the effort to get the union decertified. The hearings are expected to continue into next year.
According to UFW Vice President Armando Elenes, "They're putting the worker as the face of the campaign, which is Sylvia Lopez. The ALRB found that she didn't work 75 percent of the time but was still paid. That she was allowed to go during work hours, collect signatures, which is illegal, while still getting paid."
The UFW obtained a contract last year after a state mediator hammered one out for them, but Gerawan has fought it.
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"We're continuing business as normal, but it's very ominous to know that a government written contract could be forced on us and employees at any given time," Gerawan said. "And that system itself will surely spell doom for our business."
The administrative judge is expected to issue a decision early next year on whether the law was violated. If any of the parties disagree with the decision, they can file appeals—and that would result in the case going to the full ALRB board. The current three members of the board were all appointed by Gov. Brown, a Democrat who earlier this month won re-election to another term.
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Two weeks ago, the California Court of Appeal in Fresno granted Gerawan's request to review the ALRB's order imposing a collective bargaining agreement on the company and its workers. Gerawan is challenging it on constitutional and other grounds.
Meanwhile, the farm union's battle reached the Los Angeles City Council last month, when a group of farm workers went to City Hall and won the support of the L.A. Council in seeking a contract with Gerawan. In a letter to the City Council before the event, Gerawan Farming issued a statement saying the resolution was "a mockery of balanced and fair" and "filled with falsehoods."