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October 2006, Volume 12, Number 4

ALRB: Mandatory Mediation, Cases

The Third District Court of Appeals upheld the constitutionality of mandatory mediation in a 2-1 ruling on July 5, 2006. Mandatory mediation has been available since 2003 to achieve first contracts if the parties cannot negotiate one. Mediators help the parties to reach agreement and, if their efforts fail, the mediator can impose a contract on the parties.

The United Food and Commercial Workers won an election to represent the 60 employees at Hess Collection Winery in 1999. The UFCW had not reached a first contract by 2003, when the mandatory mediation amendments to the ALRA went into effect. Hess refused to participate in mandatory mediation, and the mediator imposed a contract.

The 3rd District Court of Appeal concluded that the California Legislature could enact a mandatory mediation law because farm workers have little power to strike: "The unskilled character of the work, the relatively low wages paid, and the seasonal rather than year-round nature of the work combine to make collective action by employees untenable." The majority opinion concluded that mediators would look at farm and non-farm contracts with comparable employers, the local cost of living and the employer's financial condition to ensure that "contracts of different employers will be similar."

The dissenting judge said the criteria guiding mediators were so vague, and the farm labor board's review so limited, that there were no effective limits on the mediator's authority to impose contract terms on an unwilling employer. The dissent concluded that mandatory mediation should be unconstitutional because it "delegated legislative power to a lone private mediator to draft a collective bargaining agreement, virtually by fiat." Hess appealed the decision to the California Supreme Court.

ALRB Decisions. In D'Arrigo Bros (32 ALRB 1, 2006), the ALRB in a 3-0 decision held that D'Arrigo committed unfair labor practices by failing to provide the UFW with the data needed to bargain on behalf of D'Arrigo Bros workers and by engaging in surface bargaining, largely because D'Arrigo paid its employees more than it was willing to offer at the bargaining table. The Board found that D'Arrigo's failure to provide employee telephone numbers and information on the cost of FLCs were violations of the duty to bargain in good faith, but not the failure to provide employee SSNs to the UFW.

The UFW was certified to represent most D'Arrigo employees in 1977 (and table grape and tree fruit operations in Reedley in 1978- the Reedley operation was closed in 1995), but did not negotiate a contract in the years since. D'Arrigo produces lettuce and other vegetables in Salinas, Brawley and Huron, and maintains that the Huron employees are not included in the bargaining unit because production in Huron began only in the 1980s, long after the 1975 election in which a majority of Salinas and Brawley workers voted for the UFW.

The UFW requested wage data on January 7, 2002, and filed a ULP charge when D'Arrigo did not provide the information. D'Arrigo responded in January 2004 to another request for wage information and employee telephone numbers made November 4, 2003, but omitted the telephone numbers and did not provide information on FLC contracts and costs.

In June 1998, the UFW submitted a proposed contract that included a request for a 10 percent wage increase over two years, a $0.25 per hour contribution to the UFW's JDLC Pension plan, a $1.18 per hour contribution to the UFW's RFK Medical Plan. D'Arrigo responded with a counter proposal in September 1998 that included no wage increase and the right to subcontract work as D'Arrigo saw fit (the UFW admitted, p17, that it has negotiated two contracts that permit unlimited subcontracting, with FLC employees not part of the bargaining unit).

The UFW made counter offers in October and November 1998 that included concessions, but D'Arrigo's counteroffer in December 1998 did not. There were more proposals and counter proposals in 1999. In the last proposal of February 2000, D'Arrigo withdrew some of the articles on which there had been tentative agreement. The UFW subsequently reduced its wage demands to one, two and two percent for a three-year contract.

In GH&G Zysling Dairy (32 ALRB 2, 2006), UFCW's Local 1096 (Fresh Fruit & Vegetable Workers), sought to replace Teamsters Local 517 as the representative of workers at the 2,000 cow dairy in Dinuba. An election was held on April 27, 2005, with eight votes for Local 1096, one for Local 517, and four for no union. There were 13 challenged ballots, and the IHE in this case recommended including and counting 10 of the challenged ballots.

In Artesia Dairy (32 ALRB 3, 2006), the vote on the March 7, 2006 election was 25-24 in favor of the UFW, with 15 challenged ballots. The ALRB concluded that a hearing be held to determine if 12 of the challenged voters should have their votes counted.

In Giumarra Vineyards (32 ALRB 4, 2006), the Board overturned a Regional Director's rejection of UFW efforts to take access to Giumarra workers in September 2006. There was an election at Giumarra on September 1, 2005 that the UFW lost, but an ALRB hearing examiner in August 2006 recommended that the ALRB not certify the "no union" result at Giumarra. The UFW lost 1,141 to 1,266, with an additional 123 challenged ballots. The examiner concluded that some crew foremen threatened up to 200 workers with losing their jobs if the UFW won the election, which could have tipped the election against the UFW. Giumarra in 2006 adopted the standard practice of using wheelbarrows to move grapes to packing stations and having packers sort them into boxes on tables; carrying grapes and packing them on the ground were issues in the campaign.

Hearing. A legislative hearing on August 16, 2006 heard that the ALRB has, since August 28, 1975, processed 1,864 election petitions, held 1,280 elections and issued 1,071 certifications. The ALRB noted that, when unions lose elections, they often file objections based on employer threats and promises to workers; when employers lose, they sometimes allege that unions threatened workers.

Bob Egelko, "Appeals court ruling favors farm labor on contract mediation," San Francisco Chronicle, July 6, 2006.