Part lll – ALRB Credibility Lacking in Gunlund Case. Part l is here, Part ll is here.
The Agricultural Labor Relations Board is lacking credibility in the H&R Gunlund Ranches case.
Despite the transcripts from the ALRB v. Gunland Ranches case showing the Agricultural Labor Relations Board administrative law judge Mark Soble had doubts about crucial parts of ALRB Regional Director Silas Shawver’s testimony against the ranch, the judge still ruled against Gunlund Ranches.
During the course of the case agains Gunlund Ranches, Shawver’s status had changed. He originally initiated the case against Gunlund as a private attorney in 2009, with California Rural Legal Assistance. But the case was followed through with Shawver serving as ALRB assistant general counsel, and regional director of the Visalia office. Shawver and Judge Soble were now colleagues under ALRB General Counsel Sylvia Torres Guillen. Shawver should have recused himself.
Silas Shawver, an ALRB assistant general counsel and former union organizer, clearly misled the Gunlund workers in 2009 while he worked at California Rural Legal Assistance as a lawyer, in order to keep them agitated to fuel his case against the ranch. Later, as an ALRB employee, Shawver — currently colleagues with Judge Soble, and General Counsel Sylvia Torres Guillen — was in a position to see the case through.
Judge expressed doubts about Shawver’s credibility… but…
ALRB Judge Soble noted a problem with a crucial point of Shawver’s sworn statements: the allegation that Gunlund had illegally fired the workers who had complained to the board.
Shawver did not state affirmatively that any Gunlund manager said that the workers had been fired. In his ruling, Soble concluded, “Shawver appeared more hesitant” when describing his exchange with one of the Gunlund managers on the crucial issue of “whether the workers were being ‘fired.’” Instead, he made unsubstantiated hints that Gunlund had fired the workers. A study of Shawver’s testimony in this and other cases shows Shawver uses hints, qualifiers, and escape clauses to imply points he wants judges to believe, without actually perjuring himself by stating them as facts.
In the Gunlund case, Shawver did not allege that the manager, Manlio Moreno, stated that the workers were being fired. Shawver said he asked Moreno what Judge Soble described as a “leading question.” According to the transcript, Shawver asked the supervisor, “So, you’re firing these workers?” and that Moreno “nodded his head and then left.”
The $64,000 question became the crux of Soble’s judgment. The hearing transcripts show no evidence, apart from Shawver’s allegations, that the workers were indeed fired. Gunlund family owners testified that the supervisor had no authority to fire anyone, and Moreno testified the same. Nobody fired the workers, despite what Shawver told them.
Sentence first, verdict afterward
Remember that Judge Soble and Shawver are colleagues at the ALRB.
ALRB Judge Mark Soble
Judge Sobel gave Shawver the benefit of the doubt in condemning the Gunlund family, stating, “the alleged unfair labor practice does not turn on whether Shawver spoke that precise phrase, nor does it turn on whether Moreno thereafter nodded or not.”
Soble accepted the non-evidence from his new colleague, Silas Shawver, as sufficient to determine guilt.
The Gunlund family responded in a detailed dissection of four years of official hearing transcripts, “Shawver himself confirmed that Manlio [Moreno] did not terminate the employees.” An ALRB staff investigation, and the testimony of at least two hostile witnesses helped by the ALRB’s Visalia office in December 2009, had already made that conclusion.
Gunlund stated in a detailed statement to the court, “Shawver took it upon himself to conclude (or simply and untruthfully to state) that the workers had been fired, despite the fact that no one with [Gunlund] had actually fired the workers.”
Soble conceded that Shawver was not truthful
As evidenced by the footnote in his ruling, Judge Soble gave Shawver the benefit of the doubt. “When Shawver realized he had made a significant admission at the hearing, he subsequently altered his testimony,” the Gunlund family said in court documents, citing the official ALRB transcripts of four years’ worth of hearings.
Silas Shawver wearing UFW t-shirt
“The ALJ [administrative law judge Soble] discredited Shawver’s altered testimony, but ignored Shawver’s admission, which was further evidence of bias, in the discrediting effect of such materially inconsistent testimony. Thus the ALJ conceded that Shawver was NOT truthful about his conversation with Manlio that Monday morning.”
This is point is vital. Any licensed attorney risks being disbarred for giving false testimony. As the lawyer who initiated the case against Gunlund Ranches while working for a private group that stood to gain financially from an ALRB court judgment, Shawver already had a record of bias when the ALRB hired him as assistant general counsel to continue the case as prosecutor.
Court documents show that Judge Soble bent over backwards to diminish questions about Shawver’s credibility to give Shawver the benefit of the doubt. Evidence suggests that the ALRB judge jumped to conclusions about the events that Shawver framed before the court.
Allegation: Shawver stirred up the workers by withholding information
After the Gunlund family paid out nearly a million dollars to Shawver’s former employer to settle the case, the ALRB hired Shawver as regional director for Visalia. The farming family provided detailed rebuttals against the allegations Shawver raised to bring the case to the ALRB court. One of the issues concerned a pay cut, to which the workers objected. Gunlund reversed the pay cut retroactively, and testified that they had told Shawver, who was representing the dissident workers.
Judge Soble said that the retroactive pay was an after-the-fact excuse to cover up a decision to fire the complaining workers. But Gunlund managers testified that they had told Shawver of this at the time. The Gunlunds accuse Shawver of deliberately not telling the workers because, as an activist lawyer whose organization stood to make money from the outcome, he wanted to keep the workers agitated while building a legal case against the farmers.
“The fact of the matter is that Shawver did NOT relate” the retroactive pay increase to the workers, the Gunlund family told the court. “The suspected reason is that such a disclosure would eliminate the CRLA from the picture. The CRLA needed the employees out of the fields and on the street – that’s why Shawver had walked around the field that morning asking the working crew members to come out of the field.”
That failure to relay a direct message to the workers during a dispute caused more of the workers to protest, and to allege the unfair labor practices that Shawver took to court, which he pursued in a different role as an ALRB attorney.
Supporting the prosecution by ignoring the facts
Shawver alleged that Gunlund wrongly fired the grapevine workers for the month of December, 2009. However, Gere Gunlund, the family member responsible for grape operations, testified that he had developed a medical condition that disabled him for most of that month. Nobody else on the farm, Gere said, had the experience or expertise to supervise scores of seasonal workers to tie and prune the vines and repair the trellis systems, so he had to suspend operations.
The only part of the vineyard that needed attention at the time was the acreage surrounding his house. With his wife home alone during his medical procedure and recovery, Gundlund didn’t want dozens of men around the house. He and one of his full-time employees told the workers that they wouldn’t be needed for most of December, and welcomed them to return in January, a few weeks later.
“Shawver was lying”
Shawver testified that he had told farm co-owner Russell Gunlund that the field supervisor, Manlio Moreno, had fired the workers. However, Judge Soble, according to the Gunlund family, “incorrectly concluded that Russell Gunlund fired the workers,” and that “Shawver was lying to Russell also.”
This second lie should have destroyed Shawver’s credibility and thoroughly discredited the General Counsel’s case, the Gunlund family concluded in its rebuttal. Even so, Judge Soble took Shawver’s misinformation even further, the family said.
The administrative law judge, according to the farmers’ rebuttal, was part of the problem: “The ALJ improperly and irresponsibly ignored this fraud on the tribunal.”
Already colluding with Torres-Guillen before she hired him?
Did Shawver, who was working for the CRLA at the time, already start colluding with the ALRB General Counsel, at a time when she was recruiting activist lawyers to expand her legal staff? The evidence suggests he was.
As he would in other court proceedings, Shawver avoided speaking factually during the Gunlund hearings, qualifying his statements with “I think” or “I was told,” or “there was some testimony placing me” in a certain location. According to the Gunlunds’ review:
“Perhaps most troubling of Shawver’s testimony is his admission that he was involved in lengthy discussions with [ALRB] General Counsel and Counsel from the CRLA shortly before his testimony regarding factual testimony provided by other witnesses earlier in the hearing. “Shawver testified, ‘Well, I was – I was asked [by General Counsel] if I had been inside the – the vineyard. There were some questions about the time that I went out there in the morning. And I think there was – I think I was told that – I was told that there was testimony that I had been there early – early in the morning, sometime before I would have started my normal work day.’”
Shawver’s statements and actions, according to the defense team, tainted the entire case:
“Not only is this admission a clear violation of the sequestration order, but there is no legitimate reason why Counsel [Shawver] would summarize testimony of other witnesses to a fact witness that was purposefully excluded from the hearing. This fact alone calls into question the entirety of Shawver’s testimony, and it should be ignored as tainted, coached, inherently unreliable, and an express violation of the sequestration order, all of which emasculates Shawver’s credibility.”
Soble blocked inquiries to cover Shawver
According to the Gunlund family, Judge Soble blocked the farmers from inquiring into what Shawver, as a witness with a financial stake in the outcome of the case, actually told the workers in December 2009.
“It seems clear that it was Shawver who told the workers they were fired by the Company,” Gunlund said in court documents. “In fact, none of the workers who testified for [ALRB] General Counsel testified that they heard any employee of Respondent [Gunlund] fire them. And, coincidentally, Respondent was PREVENTED by the ALJ [Soble] from questioning any employees as to who told them they were fired, a manifest error of law, which prevented ascertainment of the truth. Shawver’s statements to workers in this regard were NOT privileged.”
Soble ignored key facts about running a farming business
In his decision, Judge Soble appeared to disregard uncontested testimony that undermined Shawver’s allegation that the Gunlunds had illegally fired the grapevine pruning workers. The direct hire pruning crew was laid off because the family member responsible for the vineyard operations, Gere Gunlund, had a medical procedure in early December that kept him out of commission for the rest of the month. Nobody else on the busy farm had the experience or the time to supervise dozens of grapevine workers, as was standard at Gunland Ranches.
Soble claimed, as part of his judgment, that Gere’s brother, Lance, or their father, Russell, could have supervised the grapevine workers. The Gunlund family says that simply could not have happened. Lance, was responsible for management of the farm’s almond tree crews, physical equipment and shop maintenance, could not be spared from his duties. Their father, according to sworn testimony, “had NO experience overseeing the vineyards.” Russell Gunlund had been a hog farmer.
Overstepping his authority and area of expertise, the ALRB judge then named other farm employees who, in his estimation, could have or should have supervised the vineyard pruning while Gere Gunlund was on medical leave. But the individuals he named, according to testimony, had no experience in managing work crews. They “moved equipment trailers, water jugs, and bathrooms to and within the fields and helped with the pruning and tying.”
Soble, the Gunlunds argued, “ignored these uncontested facts, and substantiated his own business judgment for Gere Gunlund’s business judgment on how to run the vineyard operation.”
How can any business in California operate under these conditions and regulations? If there really were employment violations of the labor union rules and workers, then get on with it and charge the employer. But that isn’t what has happened in this case.
The ALRB seems to operate in its own world, under it’s own set of rules, known only to them.
Welcome to Taxifornia, where government is king, as is everyone who works for government. They are writing the rules as they go. Government rules in this predatory state.