Broadcasting from the heart of California’s San Joaquin Valley, KUFW-FM offers a mix of regional Mexican and ranchera music, the sort popularized by Selena, Los Tigres del Norte, and Vicente Fernández (aka El Rey de la Canción Ranchera). And there are commercials—lots of them—advertising everything from auto body repair shops (“If your car is wrecked, no problem: Prestige Paint and Body Shop can do a professional job!”) to tombstone fabricators (“granite with pictures of your loved one that has gone to a better life!”). The only difference between KUFW and its competitors is that KUFW is licensed as an educational “public radio” station. It isn’t supposed to run ads.
The FCC knows a lot about KUFW’s revenue-generating activities. Over the last two decades, KUFW and its parent network, Radio Campesina, have been admonished or fined five times by the FCC for airing advertisements “that were clearly aimed at inducing the purchase of goods or services from several for-profit entities,” as distinguished from the public service announcements that noncommercial stations can run. Five years ago, the inspector general for the Corporation for Public Broadcasting (which funds KUFW) found the station in material noncompliance with the CPB’s grant terms. In April 2013, Radio Campesina agreed to repay nearly $400,000 in CPB community service grants. The source of repayment? Future grants by the CPB.
It’s pretty obvious why KUFW ran those advertisements. The revenues far outstrip the FCC’s relatively small fines. But how does a “noncommercial” station escape with just a slap on the wrist after airing hundreds of commercials?
My client, Gerawan Farming, one of the largest family-owned agricultural employers in the state of California, asked that question of the FCC four years ago when KUFW applied to renew its license.
Gerawan got interested in KUFW after its co-owner, Dan Gerawan, tuned in to an early morning broadcast called “Despierta Ya Campesino” or “Wake Up Now Farmworker.” The program bills itself as an exposé of the “intense abuse and mistreatment that farmworkers still suffer in the fields.” On December 21, 2012, that program featured an interview with the national vice president of the United Farm Workers of America (UFW), who discussed the opening of the UFW’s “campaign” against Gerawan Farming.
That “campaign” began 20 years after the UFW was certified in 1992 as the exclusive bargaining representative of Gerawan’s workers. After one preliminary bargaining session in early 1995, the UFW vanished. In the two decades that followed, the union did not contact Gerawan to negotiate a labor contract or file any grievances on behalf of its workers.
Two months before announcing its “campaign” on KUFW, the union resurfaced and demanded that Gerawan resume contract negotiations. Gerawan agreed, and asked the UFW to propose economic terms. It didn’t. After staging a few surface “bargaining” sessions, the UFW invoked a forced contracting process under which the California Agricultural Labor Relations Board (ALRB) may draft and impose a contract on Gerawan and its workers. Gerawan and its employees challenged this UFW-sponsored law in court. Two years ago, a state appellate court (which noted the undisputed fact that Gerawan paid higher wages than any of its competitors) struck down the legislation as unconstitutional. The case is now before the California supreme court.
To date, the FCC has not taken any action to pull the plug on KUFW. Instead, in late July 2016, commission staffers fined the station $12,500 and approved Radio Campesina’s request to swap KUFW’s public radio license for a license to operate as a for-profit station. The proposed swap remains pending before the FCC. Meanwhile, KUFW continued to broadcast ads illegally (and profitably), a point acknowledged by the FCC but apparently overlooked by the CPB, which doled out nearly $1.2 million to the station while KUFW’s license was under review. (In its order imposing the fine, the FCC noted the station’s “acknowledgment that it did—as Gerawan alleges—violate the law and rules governing underwriting announcements.”)
How could Radio Campesina hope to turn its history of violations into the grant of another valuable commercial broadcast license? One clue might be in the name of the station and the president of the entity that owns KUFW. Paul Chavez—son of the famed labor leader Cesar Chavez who founded the UFW—is the president and chairman of the foundation that holds the FCC license for KUFW and 10 other stations, the Cesar Chavez Foundation. The foundation oversees one of the largest Spanish-language radio networks in the western United States. Its other nine stations are for-profit, commercial entities.
While the Chavez Foundation was acquiring radio stations and government-subsidized “farmworker” housing projects (including one located in San Francisco), the UFW apparently lost interest in organizing farmworkers. Today, the union has one-tenth the dues-paying members it attracted in its salad days in the late 1970s.
The collapse of UFW membership has not diminished its political clout. In 2015, Governor Jerry Brown signed off on a $15 million package to keep the union’s Robert F. Kennedy health insurance plan on life support. According to Miriam Pawel, the former Los Angeles Times investigative reporter and Chavez biographer, the RFK plan has fewer than 3,000 participants, and a good number of them aren’t farmworkers at all: 10 percent of the plan’s beneficiaries work for the UFW and its related entities, including Radio Campesina and the Chavez Foundation.
The UFW probably has stronger ties to politicians than to the workers it claims to represent. Cesar Chavez’s granddaughter was special assistant to the president and senior deputy director of public engagement in the Obama White House. Her father, Arturo Rodriguez, runs the UFW and sits on the Chavez Foundation board. Mr. Rodriguez hitched a ride in 2015 on Air Force One with another former community organizer, President Obama, and in 2016 bent candidate Hillary Clinton’s ear in a private meeting in Fresno, where (according to campaign staff emails published by WikiLeaks) he asked Clinton to “help in the dispute” between the UFW and Gerawan Farming.
Jerry Brown’s choice to head the ALRB told the Los Angeles Times earlier this year that the UFW has “absolutely no interest in organizing the unorganized” and spends most of its time in Sacramento lobbying for laws and regulations—or fighting off worker petitions to kick out the UFW. When he resigned from the ALRB in January 2017, William Gould IV told Brown that 99 percent of California’s agricultural workers remain unorganized, and that the “dream statute” that created the ALRB four decades ago “is now irrelevant to farmworkers.”
KUFW states that it has been “proudly broadcasting our founder’s messages for two decades.” One of Chavez’s beliefs was his skepticism that any labor law could actually help farmworkers. Chavez initially did not support the California Agricultural Labor Relations Act. His trademark tactic was high-profile boycotts of table grapes and lettuce. According to Brown, “Chavez repeatedly said that his boycott was a much better organizing tool because the law would always be captured by the powerful economic interest that control politics.”
Chavez did not live long enough to see his union wield its political clout to exact retribution on growers. Case in point: Last year, the U.S. Court of Appeals in San Francisco upheld a constitutional challenge to recently enacted California wage and hour legislation that excluded three California farmers (including Gerawan) from the protections of that law in order “to procure the support of the UFW.”
Ironically, it is Gerawan’s workers—not the UFW—that heeded Chavez’s message. They picketed, protested, and petitioned against an ALRB-imposed contract that would force them to hand over 3 percent of their paychecks to the UFW or lose their jobs. By Gerawan’s estimate, 1,500 of its workers shut down harvesting in late September 2013 in one of the largest one-day farmworker strikes since the creation of the ALRB in 1975—probably the first time workers threw down their tools in protest against the UFW and the ALRB’s refusal to hold a decertification election.
That protest is a vivid reminder of why unions, employers, and workers have a right to say what’s on their minds. But what’s not clear is why the public should pay for the UFW’s megaphone, or why it is fair or legal to allow KUFW to masquerade as “public radio.”
California congressmen Devin Nunes and David Valadao asked the FCC earlier this year why it hadn’t put a stop to KUFW’s illegal conduct and why KUFW ads such as the one it ran last year promoting a weekly “Sexy Leg and Macho Man contest with gift prizes” at the El Reventon Nightclub qualify as public service announcements.
So far, the only response from the FCC (other than a polite non-response from Ajit Pai, the new chairman) has been radio silence.
David A. Schwarz practices law in Los Angeles. His firm represents Gerawan Farming.
