On May 30, 2018, the California Fifth District Court of Appeal vacated an Agricultural Labor Relations Board’s (the “ALRB” or “Board”) prior Order to set aside an election to decertify the United Farm Workers (“UFW”) as the bargaining representative for Gerawan Farming, Inc.’s (“Gerawan”) agricultural employees.

In 1992, the UFW was certified by the Board as the collective bargaining representative of Gerawan’s agricultural employees. After the certification, however, the UFW vanished from the scene, making no contact for nearly two decades. In October 2012, the UFW sent a letter to Gerawan reasserting its status as the certified bargaining representative of their agricultural employees and demanding Gerawan bargain in good faith.

An employee dissatisfied with the UFW’s leave of absence filed a petition to decertify the UFW. Rumors also spread that the UFW would demand 3% of each member’s wages as dues. Petitioner Silvia Lopez’s initial decertification petition was dismissed on the basis that it fell short of the threshold requiring “a showing of sufficient interest.” Lopez then filed a second decertification petition.

This time, the Regional Director issued a finding that an adequate showing of interest was met. However, the prospective election was blocked due to accusations that Gerawan committed unfair labor practices which created an atmosphere that prevented employees from exercising their choice in a manner that was free and not coerced. The Board vacated the decision and ordered a secret ballot election to be conducted on November 5, 2013.

The election was held; however, rather than tallying the ballots, the Board ordered the ballots impounded, pending the resolution of the election objections and complaints of unfair labor practices. The administrative law judge (“ALJ”) found that Gerawan’s alleged unfair labor practices “tainted” the decertification process and made it “impossible to know” if the signatures collected by Silvia Lopez and other workers represented their “true sentiments.” As a result, the ALJ dismissed the decertification petition and set aside the election. The Board affirmed the decision and adopted the ALJ’s rationale. To this day, the ballots remain in storage, unopened and uncounted.

Gerawan challenged the Board's findings of unfair labor practices and the decision to set aside the election. The Appellate Court held the Board had erred in several of its findings of unfair labor practices and had failed to apply the correct standard of review applicable to determining an election challenge. The court decided the “outcome-determinative standard” should have been applied instead of the “taint-on-the-petition” approach. The outcome-determinative standard requires the Board to scrutinize whether or not the alleged misconduct tended to interfere with employee free choice to such an extent that it affected the results of the election.

Further, the court held that the Board’s approach was erroneously one-sided since it focused almost exclusively on punishing the employer without considering the protection of workers’ right to choose by a secret ballot election. UFW, the party objecting to the election, bore the heavy burden of “demonstrating not only that improprieties occurred, but that they were sufficiently material to have impacted [...] the outcome of the election.”

Due to the Board’s faulty findings and the application of the incorrect legal standard, the court vacated the Board’s decision dismissing the petition and setting aside the election. The case was then remanded back to the Board instructing them to consider all the relevant facts and circumstances in order to fairly determine whether there was misconduct committed by Gerawan and if it tended to interfere with or affect election results, including a fair and reasonable consideration of the ballot tally - the number of votes counted for and against decertification. The court explicitly stated that “the tally and size of the margin of victory should be weighed as a significant factor in [the Board’s] reconsideration of the election question on remand.”


This case is a firm reminder of the two fundamental purposes of the ALRA. First is the policy of providing agricultural workers the ability to choose their labor representation through a secret ballot election process. Second, the ALRA serves to prevent and remedy unfair labor practices committed by unions and employers alike. Employers that have questions concerning the conduct of their employees’ bargaining representatives should contact the experts at The Saqui Law Group.

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