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Tag: certification process

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

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

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    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 is allowed to unionize 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.

    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.

    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 works 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 to establish a collective bargaining agreement.

    In its lawsuit, filed in May, Wonderful challenges the constitutionality of the card-check system on multiple fronts. Among them: 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, while the lawsuit moved forward in Kern County court.

    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 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.

    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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    Melissa Gomez, Rebecca Plevin

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  • Cochise County’s Bottom-Up Guide to Election Denial

    Cochise County’s Bottom-Up Guide to Election Denial

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    As millions of Americans returned to their jobs this week after the Thanksgiving holiday, several of the elected leaders of Cochise County, Arizona, opted not to do theirs.

    The board of supervisors in this sparsely populated southeastern chunk of the state refuses to certify the county’s midterm-election results. Of course, nothing actually went wrong in Cochise County’s election. Instead, on Monday, the two Republican members of the Cochise County board outvoted its single Democrat to delay certification of the election, missing the deadline. By refusing to complete the process, these two officials chose instead to make a kind of generalized protest against imagined election fraud in Arizona. Their action could mean that Cochise County voters won’t have their ballots counted in the state’s final results.

    Nullifying the votes of some 47,000 people for no reason is certainly a choice—and a nihilistic one at that. These two board members are engaging in a strategy of bottom-up election obstruction, apparently to clog the gears of democracy with enough sand to spread distrust throughout the entire system. Nationally, the Cochise County supervisors’ strategy may prove inconsequential, at least for now. But it’s a perfect illustration of the state of American democracy—and could be a test run of much greater consequence for 2024.

    Even though prominent election deniers lost big in the November polls, in both Arizona and elsewhere, the election-denial movement is still alive, and even thriving, at the state and local level around the country. The “Stop the Steal” blueprint that Donald Trump drew up is there for anyone to follow, in the next presidential cycle and quite possibly beyond.

    Read: How six states could overturn the 2024 election

    Before the midterms, election experts had their eyes fixed on Arizona, and in particular on Cochise County, 200 miles southeast of Phoenix. There, in the home of the Dragoon Mountains and the old frontier boomtown of Tombstone, suspicion of voting machines runs deep—so much so that county officials were demanding a full hand recount of the votes before the election had even happened. (Although all Arizona postelection audits require a small hand-counted sample, a full hand count of the votes would be illegal and, experts say, extremely prone to error.) In the end, the Arizona Supreme Court had to prevent Cochise County officials from doing it.

    Ultimately, Election Day went smoothly in Cochise, and Republicans cleaned house in the county’s results: The GOP gubernatorial candidate Kari Lake and Senate hopeful Blake Masters defeated their Democratic opponents there by 18 and 11 points respectively, even though both lost overall. Still, county GOP leaders wouldn’t take yes for an answer, and they weren’t finished sowing chaos.

    One of the Republican supervisors acknowledged in an interview that delaying the county’s election certification was in fact intended as a protest over the election—not in Cochise, but in Maricopa County, where Republicans claim, without evidence, that machine errors disenfranchised thousands of voters. In other words, the play here is to use local political control in one county to cast doubt on another’s larger and more politically important election—to taint the entire process by contaminating a small piece of it.

    As I reported at the time, Maricopa County did have some technical problems on Election Day. Dozens of tabulation-machine printers weren’t working, despite those machines having been previously tested for accuracy. But voters weren’t turned away from polling sites. Instead, their ballots were dropped in an auxiliary box and taken to the county’s central tabulation center, to be counted along with millions of other ballots. If anyone was disenfranchising Arizonans, it was the state’s GOP leaders demanding that voters not put their ballot in the auxiliary box.

    Read: In Arizona, shouts of ‘fraud’ again

    But all of that is truly beside the point. Certification is not just a formality; the process enables officials to review an election for wrongdoing. Which sometimes happens! Back in 2018, the North Carolina state election board refused to certify the results of a House race, because Republican campaign operatives had engaged in illegal ballot harvesting and tampering.

    But nothing like that went down in Cochise or Maricopa Counties this year. Instead, local GOP officials are choosing to invalidate the votes of their own neighbors in order to express their displeasure with an election outcome. It’s childish. It’s wrong. It seems very illegal. And it’s probably not going to work. On Monday, Secretary of State (and now Governor-elect) Katie Hobbs filed a lawsuit against the board, tweeting that Cochise County “had a statutory duty to certify the results of the 2022 General Election by today.” The judge will hear the suit later today, and may offer a decision as early as this afternoon.

    The most likely outcome is that the judge forces the board to certify the election. “Stop the Steal” zealots have tried the Cochise move before, after all. Earlier this year, commissioners in heavily Republican Otero County, New Mexico, decided not to certify their party primary-election results. That didn’t fly at the state supreme court, which ruled that the commissioners had to do their jobs. (Commissioner Couy Griffin notably still voted no, announcing that his vote was “based on my gut feeling and my own intuition, and that’s all I need.”) But if the court doesn’t force Cochise officials to change their ways, the secretary of state’s office could, in theory, tally the rest of Arizona’s votes without the county’s included. The irony is that, in a purely electoral sense, this would be great news for Democrats, potentially flipping a U.S. House seat from red to blue.

    Something that became very clear in 2020 is that America’s election system relies not on spelled-out rules and regulations, but on human beings acting honestly. Before 2016, the certification process was not used as a weapon to fight back against a disappointing result. “That’s not how healthy democracies function,” Tammy Patrick, the program CEO for the election center at the National Association of Election Officials, told me. And American democracy is only as healthy as its weakest link.

    What happens next in Cochise County may have little significant effect on the rest of the country. But Cochise serves as a reminder that the election-fraud myth persists. And in places where its believers have unchecked power, they will do their utmost to flex it.

    Read: ‘Stop the Steal’ isn’t conceding

    The hope was that, after major midterm losses and continued rebukes from the courts, the election-denial movement would peter out—that Stop the Steal types might simply grow tired of failing. But if Trump is a viable candidate for president in 2024, you can expect him to sing from the same songbook he used in 2016 and 2020. Other candidates will amplify those lies, too, if they can benefit from doing so. Whether election denialism will survive independently of Trump is hard to anticipate. But Republicans “have seen that while it may not be the way to gain office, it is certainly the way to drive donations and fundraising and elevate your stature in the party,” Patrick said.

    Cochise is a useful stress test for America’s electoral system “in terms of demonstrating the continued dangers to our democracy”—and what can be done about them, Rick Hasen, the director of the Safeguarding Democracy Project at UCLA, told me. Congress should pass reforms to the Electoral Count Act, Hasen said. States can also try to prevent what’s happening in Cochise County from recurring in 2024. Colorado passed legislation this year clarifying its rules about certification. But state leaders are similarly well positioned to make the waters of democracy muddier. In 2021, Arizona Republicans tried and failed to pass legislation that would allow the state legislature to reject the results of an election it didn’t support. An upcoming Supreme Court decision on the authority of state legislatures in administering elections will be incredibly consequential to any future election-subversion efforts.

    Over the past six years, millions of people in this country have been encouraged by political leaders on the right to see themselves as the real Americans—the nation’s true rulers—who are in danger of being cheated out of their political inheritance by voter fraud on the left. They’ve been trained to respond to electoral losses with deflection, conspiracy, and dishonesty. They don’t need Trump around to keep doing that.

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    Elaine Godfrey

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  • The Masks We’ll Wear in the Next Pandemic

    The Masks We’ll Wear in the Next Pandemic

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    On one level, the world’s response to the coronavirus pandemic over the past two and half years was a major triumph for modern medicine. We developed COVID vaccines faster than we’d developed any vaccine in history, and began administering them just a year after the virus first infected humans. The vaccines turned out to work better than top public-health officials had dared hope. In tandem with antiviral treatments, they’ve drastically reduced the virus’s toll of severe illness and death, and helped hundreds of millions of Americans resume something approximating pre-pandemic life.

    And yet on another level, the pandemic has demonstrated the inadequacy of such pharmaceutical interventions. In the time it took vaccines to arrive, more than 300,000 people died of COVID-19 in America alone. Even since, waning immunity and the semi-regular emergence of new variants have made for an uneasy détente. Another 700,000 Americans have died over that period, vaccines and antivirals notwithstanding.

    For some pandemic-prevention experts, the takeaway here is that pharmaceutical interventions alone simply won’t cut it. Though shots and drugs may be essential to softening a virus’s blow once it arrives, they are by nature reactive rather than preventive. To guard against future pandemics, what we should focus on, some experts say, is attacking viruses where they’re most vulnerable, before pharmaceutical interventions are even necessary. Specifically, they argue, we should be focusing on the air we breathe. “We’ve dealt with a lot of variants, we’ve dealt with a lot of strains, we’ve dealt with other respiratory pathogens in the past,” Abraar Karan, an infectious-disease physician and global-health expert at Stanford, told me. “The one thing that’s stayed consistent is the route of transmission.” The most fearsome pandemics are airborne.

    Read: The plan to stop every respiratory virus at once

    Numerous overlapping efforts are under way to stave off future outbreaks by improving air quality. Many scientists have long advocated for overhauling the way we ventilate indoor spaces, which has the potential to transform our air in much the same way that the advent of sewer systems transformed our water. Some researchers are similarly enthusiastic about the promise of germicidal lighting. Retrofitting a nation’s worth of buildings with superior ventilation systems or germicidal lighting is likely a long-term mission, though, requiring large-scale institutional buy-in and probably a considerable amount of government funding. Meanwhile, a more niche subgroup has zeroed in on what is, at least in theory, a somewhat simpler undertaking: designing the perfect mask.

    Two and a half years into this pandemic, it’s hard to believe that the masks widely available to us today are pretty much the same masks that were available to us in January 2020. N95s, the gold standard as far as the average person is concerned, are quite good: They filter out at least 95 percent of .3-micron particles—hence N95—and are generally the masks of preference in hospitals. And yet, anyone who has worn one over the past two and a half years will know that, lucky as we are to have them, they are not the most comfortable. At a certain point, they start to hurt your ears or your nose or your whole face. When you finally unmask after a lengthy flight, you’re liable to look like a raccoon. Most existing N95s are not reusable, and although each individual mask is pretty cheap, the costs can add up over time. They impede communication, preventing people from seeing the wearer’s facial expressions or reading their lips. And because they require fit-testing, the efficacy for the average wearer probably falls well short of the advertised 95 percent. In 2009, the federal government published a report with 28 recommendations to improve masks for health-care workers. Few seem to have been taken.

    These shortcomings are part of what has made efforts to get people to wear masks an uphill battle. What’s more,Over the course of the pandemic, several new companies have submitted new mask designs to NIOSH, the federal agency tasked with certifying and regulating masks,. Few, if any, have so far been certified. The agency appears to be overworked and underfunded. In addition, Joe and Kim Rosenberg, who in the early stages of the pandemic launched a mask company that applied unsuccessfully for NIOSH approval, told me the certification process is somewhat circular: A successful application requires huge amounts of capital, which in turn require huge amounts of investment, but investors generally like to see data showing that the masks work as advertised in, say, a hospital, and masks cannot be tested in a hospital without prior NIOSH approval. (NIOSH did not respond to a request for comment.)

    New products aside, there do already exist masks that outperform standard N95s in one way or another. Elastomeric respirators are reusable masks that you outfit with replaceable filters. Depending on the filter you use, the mask can be as effective as an N95 or even more so. When equipped with HEPA-quality filters, elastomerics filter out 99.97 percent of particles. And they come in both half-facepiece versions (which cover the nose and mouth) and full-facepiece versions (which also cover the eyes). Another option are PAPRs, or powered air-purifying respirators—hooded, battery-powered masks that cover the wearer’s entire head and constantly blow HEPA-filtered air for the wearer to breathe.

    Given the challenges of persuading many Americans to wear even flimsy surgical masks during the past couple of years, though, the issues with these superior masks—the current models, at least—are probably disqualifying as far as widespread adoption would go in future outbreaks. Elastomerics generally are bulky, expensive, limit range of motion, obscure the mouth, and require fit testing to ensure efficacy. PAPRs have a transparent facepiece and in many cases don’t require fit testing, but they’re also bulky, currently cost more than $1,000 each, and, because they’re battery-powered, can be quite noisy. Neither, let me assure you, is the sort of thing you’d want to wear to the movie theater.

    Read: Is it time to start masking again?

    The people who seem most fixated on improving masks are a hodgepodge of biologists, biosecurity experts, and others whose chief concern is not another COVID-like pandemic but something even more terrifying: a deliberate act of bioterrorism. In the apocalyptic scenarios that most worry them—which, to be clear, are speculative—bioterrorists release at least one highly transmissible pathogen with a lethality in the range of, say, 40 to 70 percent. (COVID’s is about 1 percent.) Because this would be a novel virus, we wouldn’t yet have vaccines or antivirals. The only way to avoid complete societal collapse would be to supply essential workers with PPE that they can be confident will provide infallible protection against infection—so-called perfect PPE. In such a scenario, N95s would be insufficient, Kevin Esvelt, an evolutionary biologist at MIT, told me: “70-percent-lethality virus, 95 percent protection—wouldn’t exactly fill me with confidence.”

    Existing masks that use HEPA filters may well be sufficiently protective in this worst-case scenario, but not even that is a given, Esvelt told me. Vaishnav Sunil, who runs the PPE project at Esvelt’s lab, thinks that PAPRs show the most promise, because they do not require fit testing. At the moment, the MIT team is surveying existing products to determine how to proceed. Their goal, ultimately, is to ensure that the country can distribute completely protective masks to every essential worker, which is firstly a problem of design and secondly a problem of logistics. The mask Esvelt’s team is looking for might already be out there, just selling for too high a price, in which case they’ll concentrate on bringing that price down. Or they might need to design something from scratch, in which case, at least initially, their work will mainly consist of new research. More likely, Sunil told me, they’ll identify the best available product and make modest adjustments to improve comfort, breathability, useability, and efficacy.

    Esvelt’s team is far from the only group exploring masking’s future. Last year, the federal government began soliciting submissions for a mask-design competition intended to spur technological development. The results were nothing if not creative: Among the 10 winning prototypes selected in the competition’s first phase were a semi-transparent mask, an origami mask, and a mask for babies with a pacifier on the inside.

    In the end, the questions of how much we should invest in improving masks and how we should actually improve them boil down to a deeper question about which possible future pandemic concerns you most. If your answer is a bioengineered attack, then naturally you’ll commit significant resources to perfecting efficacy and improving masks more generally, given that, in such a pandemic, masks may well be the only thing that can save us. If your answer is SARS-CoV-3, then you might worry less about efficacy and spend proportionally more on vaccines and antivirals. This is not a cheery choice to make. But it is an important one as we inch our way out of our current pandemic and toward whatever waits for us down the road.

    Read: The pandemic’s legacy is already clear

    For the elderly and immunocompromised, super-effective masks could be useful even outside a worst-case scenario. But more traditional public-health experts, who don’t put as much stock in the possibility of a highly lethal, deliberate pandemic, are less concerned about perfecting efficacy for the general public. The greater gains, they say, will come not from marginally improving the efficacy of existing highly effective masks but from getting more people to wear highly effective masks in the first place. “It’s important to make masks easier for people to use, more comfortable and more effective,” Linsey Marr, an environmental engineer at Virginia Tech, told me. It wouldn’t hurt to make them a little more fashionable either, she said. Also important is reusability, Jassi Pannu, a fellow at the Johns Hopkins Center for Health Security, told me, because in a pandemic stockpiles of single-use products will almost always run out.

    Stanford’s Karan envisions a world in which everyone in the country has their own elastomeric respirator—not, in most cases, for everyday use, but available when necessary. Rather than constantly replenishing your stock of reusable masks, you would simply swap out the filters in your elastomeric (or perhaps it will be a PAPR) every so often. The mask would be transparent, so that a friend could see your smile, and relatively comfortable, so that you could wear it all day without it cutting into your nose or pulling on your ears. When you came home at night, you would spend a few minutes disinfecting it.

    Karan’s vision might be a distant one. America’s tensions over masking throughout the pandemic give little reason to hope for any unified or universal uptake in future catastrophes. And even if that happened, everyone I spoke with agrees that masks alone are not a solution. They’re almost certainly the smallest part of the effort to ensure that the air we breathe is clean, to change the physical world to stop viral transmission before it happens. Even so, making and distributing millions of masks is almost certainly easier than installing superior ventilation systems or germicidal lighting in buildings across the country. Masks, if nothing else, are the low-hanging fruit. “We can deal with dirty water, and we can deal with cleaning surfaces,” Karan told me. “But when it comes to cleaning the air, we’re very, very far behind.”

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    Jacob Stern

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