Card Check Certification Update: ALJ Narrows Focus to Process Issues Amidst Rising Tensions By Jason Resnick, Senior Vice President and General Counsel In the latest development of the case involving the first card check certification in California, the Administrative Law Judge (ALJ) has made a crucial ruling that the scope of the hearing is limited to issues of process. This decision comes amidst ongoing tensions between the employer, DMB Packing Corporation and the United Farm Workers (UFW) union. The case has been under scrutiny since the
As the case progresses, it highlights a novel issue before the ALRB: the lack of specific procedures in the amended Act or current ALRB regulations governing the Regional Director’s actions. The outcome of this hearing could set a significant precedent for how such disputes are handled in the future, particularly in the context of the ALRB's evolving legal landscape.
UFW was certified by the California Agricultural Labor Relations Board’s (ALRB) Regional Director following a Majority Support Petition, commonly known as a card check election. DMB Packing Corporation filed objections to the UFW’s certification, primarily focusing on the Regional Director's acceptance of declarations from 31 workers not on the employer’s eligibility list. The employer contends that these workers were not eligible as they did not work during the critical period preceding the filing of the Majority Support Petition. Since the UFW barely achieved majority status, the inclusion of these workers’ authorization cards is a pivotal point in the dispute. In an interesting turn of events, both parties— the employer and the UFW—issued subpoenas to challenge voter eligibility determinations made by the ALRB’s Regional Director. The employer aims to contest names not on their payroll, while the UFW seeks to address names struck by the Regional Director. This move signals a deepening complexity in the case, focusing on the eligibility of workers to participate in the unionization process. The employer’s argument hinges on the notion that the standards for challenging ballots in an ALRB secret ballot election should be equally applicable to Majority Support Petitions. This perspective underscores a broader debate about the fairness and transparency of unionization processes under the ALRB’s jurisdiction. Both parties have also raised concerns about the lack of due process in the hearing. The ALRB’s General Counsel previously filed a pre-hearing motion against both parties to exclude farmworker testimony regarding their employment during the eligibility period. This motion has been a point of contention, with the employer arguing that such exclusion lacks transparency and violates their due process rights. The ALJ ruled in favor of the General Counsel, even though both parties (the employer and the UFW) argued that the General Counsel and the Regional Director are not parties to the hearing and should have been banned from making motions.
In summary, the DMB Packing Corporation case represents a critical moment in the interpretation and application of existing ALRB regulations and procedures and the lack of specific regulations or procedures governing the new card check petition process. The decision of the ALJ to limit the hearing to process issues has significant implications for both the employer and the UFW. Meanwhile, the 90-day period to negotiate a collective bargaining agreement, or have one imposed by Mandatory Mediation and Conciliation, is counting down. The decision of the Administrative Law Judge to limit the hearing to process issues has significant implications for both the employer and the UFW. Members seeking legal guidance can speak one-on-one with a Western Growers attorney about employment law-related questions by contacting the Western Growers Legal Hotline at 877-942-4529
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