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Column: How anti-union southern governors may be violating federal law

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Column: How anti-union southern governors may be violating federal law

Six Republican governors in the Deep South want their constituents to know that they’re looking out for them.

That’s why they issued a joint statement earlier this year condemning the organizing campaign launched by the United Auto Workers at auto plants across the region.

“As governors, we have a responsibility to our constituents to speak up when we see special interests looking to come into our state and threaten our jobs and the values we live by,” the governors said.

We have one federal labor policy, not 50 different state policies, when it comes to union organizing and collective bargaining.

— Benjamin Sachs, Harvard Law School

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Three of the governors have gone further — signing laws denying state economic development subsidies to any employer that voluntarily recognizes a union (that is, without insisting on a formal vote by workers). They’re Kay Ivey of Alabama, Brian Kemp of Georgia and Bill Lee of Tennessee.

These steps raise the question of whether those governors and other political leaders are breaching federal labor law by their actions, which could prompt the government to invalidate unsuccessful union votes and order new elections.

“We have one federal labor policy, not 50 different state policies, when it comes to union organizing and collective bargaining,” says Benjamin Sachs, a professor of labor and industry at Harvard Law School and the author of a recent article examining how the actions of anti-union politicians may have illegally interfered with employees’ right to “a free and untrammeled choice for or against” a union.

Sachs acknowledges that the rules governing federal preemption of state labor laws are murky about the conditions in which federal labor law would prevail, and also the point at which politicians’ actions render union representation elections unfree and unfair — threshold findings that would prompt the National Labor Relations Board to invalidate an election and order a new vote.

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That said, “Alabama probably can’t condition its economic incentives on the relinquishment of the federal right” to voluntary recognition of a union, Sachs told me. But he adds that how any such case unfolds would depend on the federal court that heard it.

Political interference in union organizing campaigns in the South isn’t new. In 2014, Sen. Bob Corker of Tennessee and the state’s then-governor, Bill Haslam — both Republicans — threatened Volkswagen with retribution for taking a tolerant view of a UAW organizing campaign at its factory in Chattanooga.

One visiting VW executive referred positively to the labor-management “works councils” common in the company’s home, Germany: “Volkswagen considers its corporate culture of works councils a competitive advantage,” he said.

Corker, a former Chattanooga mayor, voiced an almost certainly specious claim that VW executives had “assured” him that the company would open a new SUV manufacturing line at the plant — if the workers turned the UAW down. A local VW executive denied that.

After losing the election, the UAW filed an unfair labor practices complaint with the NLRB, but ultimately withdrew it. The union lost another election at the plant in 2019, but two months ago it won a third election there, its first victory at an auto plant in the Deep South.

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As the UAW stepped up its campaign to unionize other plants in the South, the region’s Republican political leaders pushed back hard. In their joint statement, the governors of Alabama, South Carolina, Georgia, Mississippi, Texas and Tennessee accused the union of unspecified “misinformation and scare tactics.”

Parroting an argument straight out of the corporate anti-union playbook, they said, “The experience in our states is when employees have a direct relationship with their employers, that makes for a more positive working environment. They can advocate for themselves and what is important to them without outside influence.” All six states have automobile plants that could be targeted by the UAW.

One question relevant to whether the governors have crossed over to engaging in unfair labor practices that could invalidate a union election, Sachs says, is whether the NLRB could judge them to be “agents” of the employers. In that case, the board might consider their actions to be tantamount to actions by an employer interfering with the workers’ right to vote in a free and fair election.

“It doesn’t seem too crazy that the board might find the elected officials to be agents of the employers,” Sachs says. In several cases in which an employer didn’t disavow statements by elected officials warning a plant would close or there would be a loss of jobs if its workers voted to unionize, the board found the election to be unfair. In similar cases, the board does not have to find that there was direct contact between the politicians and the employer.

The chief target of the anti-union laws signed by Ivey, Kemp and Lee is the “card check” procedure, one of the two paths to union recognition under federal labor law — the other being a secret ballot. In the card check process, after more than 50% of employees at a workplace sign authorization cards seeking representation by a union, the employers can voluntarily recognize the union, waive any demand for a secret ballot among the workers, and participate in negotiations.

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The Alabama, Georgia and Tennessee laws deny state economic incentives to companies that accept card check authorizations without demanding a secret ballot. They also forbid employers to voluntarily provide unions with contact information for employees without the workers’ prior consent. These both are requirements that obviously make unionization drives harder.

Like other Republican state initiatives, the anti-unionization laws were incubated on the far right — specifically the Koch-backed American Legislative Exchange Council, or ALEC — the source of model laws aimed at cutting taxes, hamstringing healthcare reforms, privatizing public education, blocking environmental regulations and other such conservative hobby horses.

The anti-union laws in the three states are reproduced almost verbatim from a model law ALEC dubbed the “Taxpayer Dollars Protect Workers Act.” To put it another way, neither the state legislators nor the governors had to break a sweat to draft and enact these measures — they were spoon-fed the texts.

Southern states are generally quite candid about their efforts to attract manufacturers by guaranteeing them a low-wage rank-and-file workforce and union-free factory floors. On its economic development web page, for example, Oklahoma even brags about how much lower than national averages are the median hourly wages in 12 occupational categories — $17.01 for machinists vs. $19 nationally, $26.17 vs. $30.75 for construction managers, and so on.

Oklahoma doesn’t have any auto plants, but hope springs eternal. Oklahoma and the six states whose governors signed the anti-union letter are all “right-to-work” states, which ban contracts requiring all workers in a unionized workplace to be union members.

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In signing Alabama’s measure denying economic incentives to employers that voluntarily negotiate with unions, Ivey declared, “Alabama is not Michigan. … We want to ensure that Alabama values, not Detroit values, continue to define the future of this great state.”

She said a mouthful. The median annual wage in Alabama was $41,350 last year. In Michigan, where unions are popular, it was $46,940. That’s higher than in any of the other states whose governors signed the anti-union letter. (The median wage in Mississippi, whose governor, Tate Reeves, signed the joint statement, was $37,500, the lowest in the nation.)

Whether states can use their economic incentives to ban card check recognition may have to be weighed by the courts. As John Fry of Harvard Law observed in a report earlier this year, states clearly can’t outlaw card check agreements directly — such agreements are legal under federal law, which protects voluntary recognition of a union and the voluntary sharing of employee contact information.

As for wielding economic incentives as a weapon, the Supreme Court has ruled that states can impose labor-related rules mostly when they’re applied to projects in which the states have a direct interest, such as on public works projects.

But the issue is almost certain to come before the courts again; following its negotiating successes with the Big Three automakers last year, the UAW announced a two-year, $40-million campaign to organize nonunion plants “across the country, and particularly in the South.”

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The union lost a unionization election last month at Mercedes plants in Alabama, but has now turned its attention to a Hyundai plant in the same state. Politicians across the South are sure to react with ever more draconian laws and policies aimed at forestalling unionization. Will they be smart enough to keep on the right side of the legal line? Possibly, but that’s not the way to bet.

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What is CrowdStrike, and how did it cripple so many computers?

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What is CrowdStrike, and how did it cripple so many computers?

Talk about irony: The software that paralyzed Windows computers around the world late Thursday night and early Friday morning was planted by a company that protects Windows computers against malware.

That company is CrowdStrike, a publicly traded cybersecurity firm based in Austin, Texas. It acknowledged the problem around 11 p.m. Thursday and started working on a solution, offering a workaround in the wee hours Friday and a fix a few hours later.

The vast sea of Blue Screens of Death triggered by CrowdStrike’s error is a testament to the market-leading status of the company’s software, which detects and defends against malicious code planted by hackers. Its approach is known as “endpoint security” because it installs its defenses on devices that connect to the internet, such as computers and smartphones.

According to the website 6sense.com, CrowdStrike has more than 3,500 customers, which represent about one of every four companies buying endpoint security. Although most of its customers are based in the United States, it has hundreds in India, Europe and Australia, 6sense reports.

Here’s a quick explanation for how things went wrong so quickly for so many Windows users around the world, including airlines, hospitals, banks and government agencies.

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The Falcon Sensor update

One of the selling points of CrowdStrike service is that it can improve its defenses rapidly as new threats are discovered. As part of that service, it continuously and automatically updates the Falcon Sensor software on its customers’ machines.

Automatic updates are, under normal circumstances, a good cybersecurity practice because they prevent clients from having machines with outdated defenses on their networks. But the latest incident reveals the flip side of the coin.

According to CrowdStrike, the problem was triggered by a “single content update” for its customers with Windows PCs. The buggy code wasn’t detected until after it had downloaded and installed on many of CrowdStrike’s clients machines.

Once loaded, the bad update interfered with core functions of the PC, causing Microsoft’s infamous blue error screen to pop up and convey a message along the lines of, “Your PC ran into a problem and needs to restart.” And as long as the update remained in place, restarting the machine led to the same errant result.

The fix offered by CrowdStrike

CrowdStrike stopped sending out the faulty update early Friday morning, so machines that had not loaded it yet were spared the turmoil.

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For machines caught in the cycle of blue-screen hell, the company initially offered step-by-step instructions for how to reboot Windows in a mode that would allow them to find and delete the buggy update. The drawback, as many commenters online noted, is that this machine-by-machine approach isn’t much help for organizations with hundreds or thousands of bricked PCs.

According to the tech website 404, Microsoft also suggested rebooting a crashed machine multiple times — as many as 15 — could solve the problem.

Within a few hours, CrowdStrike was distributing a piece of software that removed the buggy code. This worked only for customers whose machines were able to connect to the internet and download the fix, though; everyone else would be left with the PC-by-PC workaround.

The lessons from the CrowdStrike debacle

Some Macintosh and Linux users, who were immune to the CrowdStrike-induced upheaval, devoted a portion of their morning Friday to spiking the football on Windows, even though the problem wasn’t caused by Microsoft.

Other observers argued that the incident demonstrated the risk of having one potential point of failure affecting millions of computers — a problem that has been demonstrated repeatedly during the broadband era.

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Steve Garrison, founder of Stellar Cyber in San Francisco, said it’s more important to figure out how to make improvements than to play the blame game. This incident, he said, underscores the need for companies to spend plenty of time checking the quality of their products in a controlled environment before releasing them to customers.

Another lesson, he said, is the need for companies, their competitors and their customers to work together as a community to spot problems. “What do we need to do to check the checkers of our supply chain?” he asked.

Dan O’Dowd, a developer of security software for the military, said the fiasco demonstrates that we need better software in critical systems.

“The immense body of software developed using Silicon Valley’s ‘move fast and break things’ culture means that the software our lives depend on is riddled with defects and vulnerabilities,” O’Dowd said in a statement. “Defects in this software can result in a mass failure event even more serious than the one we have seen today.”

He added, “We must convince the CEOs and Boards of Directors of the companies that build the systems our lives depend on to rewrite their software so that it never fails and can’t be hacked. … These companies will not take cybersecurity seriously until the public demands it. And we must demand it now, before a major disaster strikes.”

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Column: Who elected Elon Musk our arbiter of social norms?

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Column: Who elected Elon Musk our arbiter of social norms?

Here’s a handy two-step process for taking a thoughtful and judicious approach to the burning social and political issues of our time:

1. Examine closely the position taken by Elon Musk, and;

2. Go the other way.

Musk’s drift — more precisely, his headlong dive — into right-wing orthodoxies has been well-chronicled. He has openly endorsed antisemitic tropes, called for the prosecution of the respected immunologist Anthony Fauci (evidently buying into the right-wing fantasy that Fauci helped create the COVID-19 pandemic), and associated himself with a grotesquely ugly conspiracy theory about the assault on the husband of former House Speaker Nancy Pelosi.

This is the final straw.

— Elon Musk, explaining that California’s pro-transgender law provoked him to relocating his companies to Texas

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He reversed policies at X, formerly Twitter, designed to block hate speech, including racist and antisemitic tweets. That has turned the platform into a hive of repulsive partisan commentary.

(Musk blames an imaginary advertisers’ “boycott” for the user decline at X, though the repulsive atmosphere of the platform since his acquisition probably has done more to drive users and advertisers away.)

Musk again put his acrid personal worldview vividly on display with his announcement Tuesday that he would move two of his private companies, Hawthorne-based SpaceX and San Francisco-based X, to Texas.

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He made clear that his decision was triggered by Gov. Gavin Newsom’s signing of a law that bars school districts from requiring teachers to notify parents of their children’s gender identity changes. Newsom signed the law on Monday.

“This is the final straw,” Musk posted on X. He described the law as one of “many others” in California “attacking both families and companies.”

A few things about this.

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If anything, Musk’s corporate activities point to what is often described as a “whim of iron.” He defends his policies and politics as derived from painstaking consideration based on immutable laws of human behavior, but they don’t hold water on those terms. Instead, they point to the social dangers of endowing self-interested personalities with the money to buy unaccountable influence in conflict with the public interest.

Musk appears to have a real problem with transgender rights. According to the Musk biography by Walter Isaacson, this may have originated with the decision of his eldest child, Xavier, to transition at the age of 16. “I’m transgender, and my name is now Jenna,” she texted a relative. “Don’t tell my dad.”

Jenna followed up with a political awakening that Musk ascribed to her attendance at a private school in California. “She went beyond socialism to being a full communist and thinking that anyone rich is evil,” he told Isaacson. Jenna broke off all contact with him.

Further, as is the case with much of Musk’s worldview, his claim about California’s attacks on families and companies is fundamentally incoherent.

The new California law is the antithesis of an attack on families. It aims to protect the right of parents to seek the most appropriate medical treatments for their children. Anti-transgender activists who have gotten laws enacted in 20 red states interfering with these medical consultations typically characterize them as “parents’ rights” measures, when they’re just the opposite — they interpose right-wing ideologies between these families and their doctors.

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That’s the state of play in Texas, the putative new home of SpaceX and X. There, a law that became effective on Sept. 1, 2023, prohibited treatments widely accepted by medical professionals for “gender dysphoria” experienced by adolescents.

These are chiefly the use of puberty blockers to give the patients more time to affirm their gender perception, and once that stage is achieved the use of cross-sex hormones —estrogen for males transitioning to female, and testosterone for females transitioning to male.

The Texas law threatens physicians who violate the law in treating their patients with the loss of their medical license.

A trial judge, ruling in a lawsuit brought by parents of transgender youths and by doctors who treat patients in that position, blocked the law shortly before it was to take effect. The injunction was overturned late last month by the Texas Supreme Court in an 8-1 decision.

The majority made clear that its decision had nothing to do with the weight of medical opinion, which overwhelmingly supported the treatments at issue when undertaken through careful consultation.

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The issue at the heart of the debate, asserted Justice James D. Blacklock in a concurring opinion, “is one of philosophy, morality, even religion. The medical debates at issue in this litigation are merely the surface-level consequences of deep disagreement over the deepest of questions about who we are.”

The majority justices ruled that the Legislature was entirely within its rights to place limits on medical practice and parental authority in Texas. They asserted that barring parents from seeking medically indicated treatment of their children’s gender dysphoria was no different from a state law forbidding minors from getting tattoos, even with their parents’ permission.

“Of course,” responded Justice Debra H. Lehrmann, the court’s lone dissenter, “there is nothing remotely medically necessary about tattooing.” Depriving adolescents of gender dysphoria therapies, on the other hand, can be severely injurious to the patient’s physical and mental health.

If Musk thinks that Texas’ policies on parental rights are superior to California’s, he might ask the parents of transgender youths who have been driven out of Texas to seek treatment because of this ignorant and ideologically infected law.

Texas boosters, Musk included, like to describe the state as the coming place for venture investing. The truth is rather different. According to the National Venture Capital Assn., Texas has been mired in also-ran status for at least the last decade, a period in which it has been supposedly booming.

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California’s position as the top state in venture funding has never been seriously challenged. In 2023, California VC funds raised $37 billion; Texas ranked seventh, with less than $1.2 billion. Of the top 10 venture deals by value last year, the NVCA reckons, eight involved California companies. The others were located in New York and Washington, D.C. Texas had none.

And in terms of assets under management by firms based in the state, California continues to reign with $644.5 billion as of last year. Texas ranks fifth, at less than $32.5 billion. It was edged out by No. 4 Florida, with $33.6 billion, but the figures for both Florida and Texas are a big drop-off from No. 3, Massachusetts, with $121.7 billion.

It’s not as if Austin, where Musk is hanging his Texas Stetson, offers newcomers a paradisiacal environment. In 2022, TechCrunch dubbed Austin “a city of unicorns and tech giants.” The thrill hasn’t lasted. Recent transplants have found that its boosters’ depiction of a vibrant intellectual climate was oversold. “Austin is where ambition goes to die,” an unhappy California immigrant told Business Insider.

Then there are its punishing summers — 78 days of triple-digit temperatures in 2023 — and soaring housing prices. Although Austin boasts one of the features of tech hubs, a leading research institution in the University of Texas, the state’s partisan political environment has turned increasingly hostile, with bills passed into law this year banning diversity, equity and inclusion (DEI) programs and narrowing faculty tenure protections.

Texas has the most restrictive anti-abortion law in the nation, with an almost total ban and a prohibition even on private health plan coverage of abortions. That hardly makes for an inviting prospect for women of childbearing age or for young families interested in the full range of reproductive healthcare options.

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One advantage Texas has over California is something a rich entrepreneur like Musk would appreciate the most: It has no state income tax.

Musk can scarcely claim that his own corporate policies are family-friendly. They are, however, arguably self-destructive. Consider his treatment of thousands of former Twitter employees who were summarily fired after he took over the platform in October 2022 and are suing to receive severance payments, bonuses and other benefits they were promised before the takeover.

The mass firings have given rise to about 2,000 arbitration cases and a dozen class-action lawsuits, according to Shannon Liss-Riordan, a Massachusetts labor lawyer who represents the workers in arbitration and filed the lawsuits.

Among the workers’ claims is that while Musk was working to close his acquisition of Twitter, as it was then known, the company promised employees that they would be entitled to “benefits and severance at least as favorable” as what Twitter provided before the Musk takeover. The promises were made by company executives in a series of all-hands meetings at Twitter headquarters and were written into the merger agreement Musk and Twitter management negotiated in April 2022.

“The promises were made to keep employees from fleeing the company during those chaotic months before Musk closed on the acquisition,” Liss-Riordan told me. “Then after he closed, he just defaulted on that promise.”

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Neither Musk nor spokespersons for X or SpaceX could be reached for comment.

Although many if not most of the X employees were required to bring their claims to arbitration, Musk initially refused to pay the arbitration fees that are typically charged to the employer in such cases.

That has frozen the proceedings in more than 800 cases, though not those originating in California, Oregon and Nevada, where employers don’t have the legal ability to refuse. About a third of the 2,000 arbitration claims are in California, Liss-Riordan says.

Leaving aside the ethical implications of a company’s forcing employees into arbitration and then refusing to allow the cases to proceed, Musk’s demand that ex-employees submit to arbitration may be exceptionally more costly for the company than trying to reach a general settlement. Arbitration fees can average $100,000 per case, Liss-Riordan told me; hundreds of millions of dollars in claims may be at issue.

“You have to scratch your head over why Elon Musk has to fight this so hard,” she says. “Would it really be that big a deal to pay the employees what was promised to them? Frankly, it doesn’t seem worth his time.”

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Judge grants Wonderful's request to halt UFW effort to unionize company's workers

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Judge grants Wonderful's request to halt UFW effort to unionize company's workers

After more than a month of deliberation, a Kern County Superior Court judge has sided with Wonderful Co. and issued a preliminary injunction that will temporarily halt a contentious bargaining process between the agricultural giant and the state’s largest farmworker union.

In a ruling issued Thursday, Judge Bernard C. Barmann said Wonderful “was likely to prevail” in its legal challenge to the state’s relatively new system for organizing farmworkers and faced irreparable harm if the United Farm Workers union is allowed to pursue a bargaining agreement on behalf of the company’s nursery workers before the case is decided.

“The court finds that the public interest weighs in favor of preliminary injunctive relief given the constitutional rights at stake in this matter,” Barmann wrote in the 21-page decision. Wonderful “has met its burden that a preliminary injunction should issue until the matter may be heard fully on the merits.”

Wonderful, the $6-billion agricultural powerhouse owned by Stewart and Lynda Resnick, sued the state Agricultural Labor Relations Board in May, challenging the constitutionality of the state’s so-called card-check system, which Gov. Gavin Newsom signed into law in 2022. Under its provisions, a union can organize farmworkers by inviting them to sign authorization cards at off-site meetings, without notifying an employer, rather than voting by secret ballot at a designated polling place.

Union organizers had pressed for the revised card-check law, contending the secret ballot process left workers fearful of retaliation from their employer.

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But Wonderful, whose portfolio includes such well-known brands as FIJI Water and POM Wonderful, alleges in its lawsuit that the law deprives employers of due process on multiple fronts. Among them: forcing a company to enter a collective bargaining agreement even if it has formally appealed the ALRB’s certification of a union vote and presented what it believes is evidence that the voting process was fraudulent.

The temporary injunction marks the latest twist in a tumultuous dispute over the UFW’s unionization campaign at Wonderful Nurseries in Wasco, the nation’s largest grapevine nursery.

In late February, the UFW filed a petition with the labor relations board, asserting that a majority of the 600-plus farmworkers at the nursery had signed authorization cards and asking that the UFW be certified as their union representative.

Within days, Wonderful accused the UFW of having baited farmworkers into signing the authorization cards under the guise of helping them apply for $600 in federal relief for farmworkers who labored during the pandemic. And the company submitted nearly 150 signed declarations from nursery workers saying they had not understood that by signing the cards they were voting to unionize.

The UFW countered that Wonderful had intimidated workers into making false statements and had brought in a labor consultant with a reputation as a union buster to manipulate their emotions in the weeks that followed.

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The ALRB acknowledged receiving the worker declarations from Wonderful; nonetheless, the regional director of the labor board moved forward three days later to certify the union’s petition. She has said in subsequent hearings that she felt she had to move quickly under the timeline laid out in the card-check law, and that at the time she did not think the statute authorized her to investigate allegations of misconduct.

Wonderful appealed the ALRB’s certification.

Under the provisions of the card-check law, the UFW’s efforts to bargain with the company on behalf of its nursery workers moved forward, even as Wonderful’s appeal of the certification was working its way through the ALRB’s administrative hearing process. The ALRB issued a ruling last week ordering Wonderful to enter into a mandatory mediation process with the union to establish a collective bargaining agreement.

In its lawsuit, filed in May, Wonderful challenges the constitutionality of the card-check system on multiple fronts. The lawsuit alleges that the company’s due process rights were violated when the labor board moved to certify the UFW’s petition before investigating the company’s allegations that the vote was fraudulent; and more broadly that the card-check system does not have adequate safeguards in place to ensure the veracity of the voting process.

The company asked the judge to halt the unionization effort at its nursery, as well as the ALRB’s administrative hearing process regarding the company’s appeal, while the lawsuit moved forward in Kern County court.

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In a statement released Thursday evening, Rob Yraceburu, president of Wonderful Nurseries, said the company was “gratified” by the court’s decision to pause the certification process until the constitutionality of the card check law can be “fully and properly considered.”

“In addition,” Yraceburu said, “farmworkers had been wrongly barred from objecting to a union being forced on them, and this ruling states that Wonderful indeed has the standing to fight to ensure those constitutional rights of farmworkers, including their due process and First Amendment rights, are not violated.”

UFW spokesperson Elizabeth Strater countered that the ruling “ignores 89 years of labor law precedent” and indicated the decision to grant the preliminary injunction would be appealed.

“There is already a process to address wrongdoing in elections and Wonderful was in the middle of that process. Why does Wonderful want to halt that process and silence workers so their voices are not heard?” Strater said. “It’s very clear Wonderful is determined to use its considerable resources to deny farmworkers their rights.”

In a May 30 filing, the state had urged the court to deny Wonderful’s request for an injunction. California Atty. Gen. Rob Bonta, arguing on behalf of the ALRB, said Wonderful had failed to demonstrate that the card-check law was causing “irreparable harm or any likelihood of deprivation of its rights.” Bonta also argued that the Superior Court lacked jurisdiction in the case.

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Santiago Avila-Gomez, executive secretary with the ALRB, said Thursday evening the agency is “reviewing the ruling carefully and won’t have further comment at this time.”

The UFW, meanwhile, is pursuing its own legal action against Wonderful. The union has filed a formal complaint of unfair labor practices with the ALRB, accusing Wonderful of coercing workers into attending “captive audience” meetings to urge employees to reject UFW representation. ALRB General Counsel Julia Montgomery issued a complaint in April, similar to an indictment, alleging Wonderful committed unfair labor practices by unlawfully assisting them in drafting declarations to revoke their authorization cards.

The company has largely denied the allegations.

This article is part of The Times’ equity reporting initiative, funded by the James Irvine Foundation, exploring the challenges facing low-income workers and the efforts being made to address California’s economic divide.

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