Last November organized labor received a welcome and, truth be told, largely unexpected piece of good news. The California Supreme Court ruled unanimously in favor of the UFW (United Farm Workers) in its protracted battle with Gerawan Farming, Inc., one of the largest growers in California’s Central Valley. The issue in dispute was “binding mediation.”
One of the sleazier tactics used by a sore-loser company whose employees “betray” them by choosing to join a labor union is to take an inordinate amount of time at the bargaining table while negotiating the local’s inaugural contract.
This phony stalling is intentional. It’s done to pry the employees off their union affiliation, in the hope that these newly certified union members will eventually become so impatient or dispirited that they lose faith in their International, and ask to decertify (“Hey, why have a union if they can’t even get us a contract?”).
As primitive and transparent as that tactic seems, it’s a device that has been around for decades, going all the way back to the 1930s, and has been known to work, especially in instances where the vote to join a union was hard-fought and won with a narrow plurality.
It’s not the memberships’ fault for being skittish. A freshly certified union shop can lose its confidence and sense of solidarity very quickly. As for the magnitude of the stalling itself, one might rightly ask, What amount of stalling qualifies as “inordinate”? How about months stretching into years? It happens. It happened with Gerawan.
In order to prevent these tactical delays from occurring, the California legislature, in 2002, passed a law granting a neutral mediator the right to impose a contract in the event that negotiations stalled out. Astoundingly, this law gave mediators the right—pending approval of the CALRB (California Agricultural Labor Relations Board)—to set the hourly wages and other provisions of a union contract. Hence, “binding mediation.”
To anyone who’s ever sat at a bargaining table and attempted to negotiate a union contract with a hard-nosed company, this arrangement—where a neutral party can dictate the terms of a contract—has to be seen as profoundly significant.
Indeed, so repugnant to management is the notion of government agencies poking their noses into private business that company negotiators don’t even appreciate having the FMCS (Federal Mediation and Conciliation Service)—which has ZERO power to “impose” anything—sitting in the room, hand-holding and gently nudging the parties to reach agreement.
As a general rule, management negotiators don’t want the FMCS anywhere near the bargaining table. That is unless the company feels that they can manipulate or win the support of these people, which, given today’s pro-business, anti-labor climate, is not out of the question.
Accordingly, Gerawan Farming (mainly stone fruit and table grapes) filed a lawsuit, claiming that the 2002 “binding mediation” legislation so clearly expanded government reach, it was unconstitutional. A lower court agreed with them.
But in November, 2017, in a landmark decision that even the AFL-CIO didn’t see coming, the California Supreme Court struck down that lower court ruling. The Court gave mediators the right to impose contractual wages and working conditions for the UFW, pending approval by the CALRB. It was a day of rejoicing for the farm workers.
All parties agree that this case is far from over. Not only will there almost certainly be an appeal to the U.S. Supreme Court, there are jurisdictional voting issues being raised by the growers, as well as a dispute over how much, if any, back wages the workers are entitled to.
The UFW is arguing that Gerawan’s 3,000 employees are owed $10 million in back wages. Because retroactive pay is standard procedure in contract settlements, that $10 million figure is based on the difference between what the farm workers were being paid and the subsequent wage approved by the CALRB. To be continued.