This is the second part in a series; Part l is here.
California businesses are being targeted for retribution through a bill passed by the Legislature and signed into law by Gov. Brown October 10, rewriting the definition of the labor rules governing piece-rate compensation in California.
ALRB attorney Jessica Arciniega, ALRB Regional Director Alegria de la Cruz, and ALRB General Counsel Sylvia Torres-Guillén, UFW attorney Mario Martinez and a UFW organizer
Assembly Bill 1513 unfairly singles out two of the largest fruit growers in the San Joaquin Valley, for discriminatory treatment, based on demands that these two companies be excluded from protection under the bill’s affirmative defense. Both companies are targets of United Farm Workers unionizing efforts.
It is however, a violation of the U.S. Constitution to single out members of a group so as to inflict punishment on them without a judicial trial (United States v. Lovett).
Fowler Packing Company and Gerawan Farming are the victims of an injustice done at the behest of the UFW. Both companies have been sued by attorney Mario Martinez — the same attorney who is the General Counsel of the UFW — the union which had undo influence over this legislation.
The UFW is dwindling in numbers, down to about 3,300 members from a high of 50,000, and desperately needs members – voluntary or not.
The Legislation
AB 1513, by Assemblyman Das Williams, D-Santa Barbara, a gut-and-amend bill, originated as a legislative solution to a legislatively created labor issue, throwing many large businesses into class-action lawsuits over piece-rate pay, and nonproductive work time pay.
The bill creates an affirmative defense and a limited “safe harbor” for employers who agree to pay current and former employees back payment for unpaid and/or underpaid rest and recovery periods known as “nonproductive” time. The legislation specifies that the “safe harbor” would protect employers from any claim or cause of action.
And, going way beyond the class-action lawsuit, which precipitated this bill, it also requires employers who use piece-rate compensation to pay workers separately for rest and recovery periods and for “non-productive” time, at least the minimum wage.
The other legally sketchy area of the bill was a provision added late in the gut-and-amend process, at the insistence of the United Farm Workers labor union, which targets the two companies as retribution. The provision prevents the companies from accessing the safe harbor protection from class action litigation due to unproven allegations in an unrelated wage and hour case, and as retribution for employees’ efforts to oust the UFW.
Fowler and Gerawan
Targeted for unionization by the UFW, Fowler Packing Company in Fresno, is a family farming business established in 1950 by Sam Parnagian. Sam’s sons and adult grandchildren now run the business. “Fowler Packing is one of the largest shippers in the fresh produce business, handling over 7 million boxes of stone fruit and table grapes, and 15 million boxes of citrus per year,” the company website reports. Fowler has 400 full-time workers and 2500 seasonal workers, most of whom are employed at least 10 to 12 months a year, and farms about 10,000 acres – which is why they’ve been a target for unionization by the UFW.
“They should be the largest union in California, if they are that great,” Dennis Parnagian said in an interview. Parnagian said Fowler employees have very good working conditions, and are treated like family. Parnagian’s company provides meals for every Fowler employee twice each day, with a fully staffed kitchen and diner on premises, among other perks.
Farm employees from Gerawan Farming have been trying to get the UFW out of their workplace since October 2012. Desperate for new members, the UFW reappeared out of the blue after doing nothing since 1990 when they won an election to unionize Gerawan’s employees, but never negotiated a collective bargaining agreement. In 2012, they reappeared to impose a contract on Gerawan Farming and its 3,000-5,000 employees.
This incited the workers, who describe their working conditions as optimum. Gerawan farming pays the industry’s high wages and benefits, including retirement, vacation pay, and even the tuition for the workers’ children at the local Catholic St. La Salle School.
“Once a contract is imposed on our workers, it will double or even triple the size of the UFW’s current membership,” Dan Gerawan explained in 2013; he’s the president of Gerawan Farming, a family-owned and operated business located in in Reedley since 1938. “So, more than half of the UFW’s membership will never have been given the opportunity to express whether they even want the UFW to represent them.” Gerawan Farming is the nation’s largest grower of peaches, plums, and nectarines, and among the leaders in table grapes, and packs under the Prima label.
Legislative Technicality
AB 1513 contains provisions that unfairly exclude participation by these specific agricultural employers. Safe-harbor exclusions, as expressly inserted by use of the March 1, 2014 date in late-added amendments, sacrifices Gerawan to continued legal exposure in exchange for legal protections afforded to others. Another amendment added a provision excluding any company for which an active claim is open alleging the adding of “ghost” employees to reduce or eliminate employee wages from use of payment calculation formulas and exposure protections afforded by AB 1513. This amendment was aimed directly at Fowler Packing.
Ghost Workers
Parnagian explained that when Fowler is working many crews at a time, a crew boss is assigned to each. The crew is paid as a whole by the number of bins they pick. In February 2014, Fowler received a tip through the company’s anonymous tip hotline, that a crew boss had added “ghost workers” who don’t exist. Fowler immediately dispatched its Human Resources and Quality Control employees into the field to investigate. Within the week they found the crew boss, who admitted to adding the ghost workers, who then pocketed their checks himself. Parnagian said the crew boss claimed he’d only been at his scheme for three weeks. He was however, terminated on the spot.
Parnagian said the company then calculated four months back to the previous October (rather than just three weeks) to recalculate the employees’ checks, and immediately paid the differences, and some extra to the workers in the crew.
Fowler Packaging sent a letter out to all employees telling them what happened, and assured them the cheating crew chief was gone, and that the employees were made whole with their pay.
As a former 20-year Human Resources Director, this is a textbook case of how to do everything right when it is discovered a supervisor is dishonest.
AB 1513 was created to protect employers who made good faith efforts to comply with the state’s reporting requirements and wage and hour laws, yet the legislation was amended to penalize Fowler, even after the company did everything required by law to remedy the ghost worker situation.
However, Fowler is being penalized to this day by the UFW, using language in AB 1513, according Parnagian, and to several sources close to the case.
The UFW’s attorney, Mario Martinez, capitalized on the ghost worker situation when it heard about it, and convinced a Fowler employee he could get her more money, by claiming this is part of the corporate culture at Fowler. Attorney Martinez filed a lawsuit on behalf of the employee against Fowler, and then added the amendment into AB 1513, specifically targeting Fowler Packaging.
Martinez filed a class action lawsuit against Gerawan in February 2014 on behalf of two Gerawan workers, claiming they were not paid minimum wage, and denied breaks and meals periods.
Also in February 2014, Gerawan worker and defacto leader of the workers fighting the UFW, Silvia Lopez, sued the gubernatorial appointees and regional staff of the ALRB alleging civil rights violations, and their refusal to count the Gerawan farmworkers’ decertification votes violated her 1st and 14th Amendment rights.
Perhaps even more important to remember is Martinez, the UFW’s general counsel, is also the plaintiff’s attorney in the two class action lawsuits against Gerawan and Fowler. So he is suing Gerawan and Fowler on behalf of workers, while in parallel representing the UFW in ALRB matters against Gerawan.
Given the battles Gerawan Farming has done since 2012 with the UFW, culminating with the employees’ election to likely decertify the union, none of this is surprising.
Assemblyman Jim Patterson, R-Fresno, called AB 1513 a “criminal conspiracy,” and is calling for a legal remedy: “The only way for justice is if this conspiracy is brought out into the open in a court of law.”