LEVY, J. —
This case involves the intersection of two of the fundamental purposes of the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975 (Lab. Code,
Our factual introduction to this case is presented in two parts. In this initial part, we focus attention on key procedural events that culminated in Gerawan's writ of review, including the election itself. We also provide an introductory outline of our legal analysis of certain of the material issues. By framing these core events and issues up front, we hope to minimize the risk to the reader of losing the forest for the trees in this lengthy and complicated opinion. After this focused synopsis is given, a more comprehensive overview of the factual and procedural background will follow.
On October 25, 2013, farmworker Silvia Lopez (also referred to as the petitioner) filed a petition for decertification to the Board, signed by herself and a considerable number
In September of 2014, more than 10 months after the election, a consolidated evidentiary hearing was commenced before an administrative law judge (ALJ) assigned by the Board to hear the following issues together: (i) the UFW's election objections, and (ii) the general counsel of the Board's (the
By petition for review under section 1160.8, Gerawan challenges the decision of the Board in Gerawan Farming, Inc., supra, 42 ALRB No. 1. As noted, Gerawan's petition for review not only attacks the findings that it committed unfair labor practices, but also the drastic remedy imposed by the Board of setting aside the employees' secret ballot election. The Board and the UFW object to any review by this court of the Board's election-related
Under the unique procedural posture of this case, where (i) the technical refusal to bargain procedure was wholly inadequate under circumstances created by the Board's own doing,
Having reviewed the entire record, we conclude that several of the unfair labor practice findings relied on by the Board were unsupported by the record as a whole. This alone would warrant returning the case to the Board to reconsider its remedy. More than that, however, it appears that the Board applied an incomplete or inadequate legal standard in reaching its decision to set aside the election. Specifically, the Board applied a narrow "taint" (or taint on the petition) standard under which it failed to meaningfully consider whether a reasonable basis existed to conclude that Gerawan's misconduct interfered with the employees' ability to exercise free choice in the election. Without that issue being squarely addressed by the Board and such interference reasonably found to have occurred on the record before it, the drastic remedy of throwing out the election in a case such as this one
At this point, we present a more comprehensive factual and procedural background. We do so in an effort to provide the surrounding context within which the relevant events occurred as well as to summarize the historical flow of factual and procedural events. This is a complicated case, the particular events of which are difficult to appreciate apart from an understanding of the larger whole, and so we think it is best not to view matters in a vacuum. Although we summarize some of the testimony in this background section, we do so merely to set the stage for our later discussion. We are not competing here with the formal findings of the ALJ or the Board. Any disagreements we have with the Board's factual findings on particular issues are separately discussed, later herein, in the Discussion portion of this opinion.
Gerawan is the largest grower of tree fruit in California, both in terms of the number of employees and the amount of fruit that it grows. A family-owned farming business, Gerawan's owners and officers include Ray Gerawan, Daniel (Dan) Gerawan and Mike Gerawan, among others. In addition to growing and harvesting tree fruit such as peaches, nectarines, plums and apricots, Gerawan also grows and harvests substantial quantities of table grapes and wine grapes. Gerawan's extensive farming operations are conducted on thousands of acres of farmland in two main locations: the west side ranches in the Kerman area, and the east side ranches in the Reedley/Sanger area. Although the number of agricultural workers employed by Gerawan during the timeframe of the second decertification
Gerawan asserted that during the intervening years after the UFW disappeared, Gerawan's agricultural operations and workforce grew substantially in size, its methods of production changed and evolved, while Gerawan allegedly "became and maintained its position as the highest paying tree fruit and table grape farming operation" in the region.
In October of 2012, the UFW sent a letter to Gerawan reasserting its status as the certified bargaining representative of Gerawan's agricultural employees and demanding that Gerawan bargain in good faith. The letter also insisted that Gerawan provide to the UFW the names and addresses of all of Gerawan's agricultural employees. Gerawan provided employee information to the UFW, and negotiations between Gerawan and the UFW commenced in early 2013.
Gerawan communicated with its employees about these significant new developments. A series of written notices (or mailers) were distributed to Gerawan's employees, either by mail or as an enclosure in the envelopes that contained the employees' paychecks. The first of these mailers, dated November 13, 2012, was signed by "Ray, Mike, and Dan Gerawan" and told the field workers the following message: "22 years ago, the United Farm Workers won an election to represent the agricultural employees of Gerawan Farming. However, except for one meeting 20 years ago, they have not contacted us since then. A few weeks ago we received the attached letter from the UFW demanding that we turn over your personal information to them and that we begin negotiating with them. [¶] One of the reasons we have to turn over your personal information to the UFW, including your home address, is because the UFW normally uses such information to visit employees' homes. It is up to you whether you wish to talk to them if they visit your home. [¶] As your employer, we did not want this to happen but we have no control over this. The UFW says they represent you, even though you probably did not even work here 22 years ago and some of you were not even born yet."
Over the next several months, Gerawan sent followup mailers. The followup mailers were written in a question-and-answer format. They purported to respond to a few basic, recurring questions or misconceptions (e.g., will the union likely make the workers pay dues?), but otherwise referred the employees to the Board as the appropriate agency to which they may express concerns or ask any further questions, noting that "[e]mployers are prohibited from helping their employees in such matters."
Months later, after the filing of the first petition for decertification in September 2013, Dan and Norma Gerawan
Beginning in November 2012, Gerawan provided a series of training sessions to its crew bosses and supervisors.
During the first three months of 2013, approximately 10 or 12 bargaining sessions took place between Gerawan and the UFW. In late March of 2013, the UFW filed a declaration with the Board seeking to have the bargaining parties (Gerawan and UFW) ordered to commence a statutory process referred to as "mandatory mediation and conciliation" (see § 1164 et seq.).
In June of 2013, Angel Lopez, an agricultural worker at Gerawan, heard that a mediation was taking place between Gerawan and UFW in Modesto, California. Angel was concerned that the union would begin taking 3 percent from the workers as soon as a contract was in place. He wanted to learn what was going on at the mediation, so he asked his mother-in-law, Silvia Lopez, to drive him to Modesto to attend. When they arrived at the mediation location in Modesto on June 11, 2013, neither of them were allowed to enter the mediation session. While waiting in the hallway outside the mediation session, an attorney, Paul Bauer, who was there representing another worker against the union, introduced himself and explained the nature of what was going on. Angel and Silvia Lopez asked what, if anything, could be done, and attorney Bauer mentioned that under the ALRA workers had a right to file a petition to seek an election. Angel and Silvia Lopez asked attorney Bauer if he would help them. Attorney Bauer said that he might be able to help, he gave them his card, and an appointment was scheduled for a later date at attorney Bauer's office.
Approximately two weeks after the trip to Modesto but before the appointment with attorney Bauer, Silvia Lopez returned to work at Gerawan as an agricultural worker. She had been employed by Gerawan in the past, but that was prior to 2010. Beginning in 2010, she had tried selling Herbalife instead, but that did not work out for her financially, so she planned on returning to Gerawan. She did so on or about June 25, 2013. Silvia Lopez stated that her decision to resume employment at Gerawan was also motivated, in part, by a concern she had to protect Angel.
A number of agricultural workers employed at Gerawan came to the appointment at attorney Bauer's office along with Silvia and Angel Lopez. Attorney Bauer explained to them more fully about the decertification process, the need to gather a sufficient number of signatures, and the rules that had to be followed in doing so. According to Silvia Lopez, attorney
Silvia Lopez, Angel Lopez, and a core group of about seven other agricultural workers at Gerawan became the main participants in the signature-gathering effort, although there were estimated to be about 20 or more workers who helped in some capacity or turned in some signature sheets. A few of the signature gatherers were family members of Silvia Lopez.
In August 2013, Dan Gerawan planned to meet with legislators and others in Sacramento to oppose a pending bill known as Senate Bill No. 25. He believed Senate Bill No. 25 would unfairly expand the MMC process and effectively make it perpetual. The day before the trip, he asked Jose Erevia to identify for him five or six agricultural employees who might have an interest
Gerawan had a practice of giving away fresh fruit to its employees at certain locations, on a particular day each week (e.g., Friday after work). The program helped to reduce theft of fruit from the fields. In years past, the fruit was in large bins for the workers to select the fruit in a self-serve fashion. By 2013, the setting for the fruit giveaways was improved. The fruit was situated in smaller trays or containers on tables, and fruit flavored beverages were often provided. The fruit giveaway events were under a shaded canopy, and sometimes Dan Gerawan and his wife would attend and greet the workers.
On July 15, 2013, the UFW filed an unfair labor practice charge against Gerawan, alleging that certain of Gerawan's supervisors or foremen were involved in the circulation of a decertification petition and/or coerced or encouraged employees to sign a petition to decertify the UFW. This led to an investigation by the regional director of the Board, Silas Shawver. On August 19, 2013, the Board (by Silas Shawver on behalf of the General Counsel) filed an ex parte application for a temporary restraining order (TRO) in the Fresno County Superior Court. The Board alleged three separate incidents of direct supervisor involvement in the circulation of the decertification petition.
The Superior Court granted the TRO, but denied the Board's request for access. The following day, Dan Gerawan personally invited the Board to conduct company-wide noticing and training of all of its employees and supervisors. The Board accepted the proposal. Access was granted to the Board, and the Board conducted noticing or training of over 2,000 Gerawan employees on August 28, 2013 and August 29, 2013. Separate training of the supervisors occurred on Saturday, August 24, 2013. The Board's noticing or training meetings were conducted by regional director Silas Shawver.
On August 22 and 23, 2013, Jose Erevia personally met with all Gerawan crew bosses and supervisors to explain the TRO and the need to comply fully with it.
At the September 11, 2013 preliminary injunction hearing in the Superior Court, Silas Shawver reported to the court on the Board's training of the employees: "We went and spoke with all of the crews to give them information about — about their rights under the Act and also about the process and the importance of not having interference in their ability to make
Jose Erevia testified that on August 26, 2013, he received an anonymous telephone call, alerting him that the UFW was planning to have pro-UFW workers attempt to trap crew bosses into turning down requests to gather pro-union signatures during worktime. The next day, Jose Erevia directed all crew bosses to read a statement to their crews that included the following message: "To avoid false accusations of wrongdoing or being trapped into committing violations, do not ask me for ... permission to gather signatures or distribute promotional material. If you choose that activity then do it during your rest periods, meal period, and off-the-clock periods when you are free to use your time that way." Later, as predicted by the anonymous tip, there were multiple incidents in several crews where the crew bosses were approached by individuals who asked for permission to circulate documents or obtain signatures for the union during work hours.
The ALJ found that "there was credible evidence that pro-UFW workers requested permission from their crew bosses to circulate pro-UFW petitions during work time, and that the foremen rejected those requests."
On September 18, 2013, Silvia Lopez filed the first petition for decertification with the Board. On September 25, 2013, regional director Silas Shawver
In response to the dismissal of the first petition, the decertification proponents did not cease their efforts, but immediately began gathering signatures for a second petition. More than that, on September 30, 2013, only a few days after the rejection of the first petition, Silvia Lopez and others in the pro-decertification group reacted by carrying out a work stoppage, which involved blocking work entrances to the fields early in the morning and urging all the arriving workers to gather at a designated location where a massive protest took place. Silvia Lopez and other individuals spoke at the protest, many of the workers carried protest signs, and television news reporters arrived and interviewed participants. Silvia Lopez testified that the main reason for the September 30 work stoppage and protest was not to gather signatures, but to protest the dismissal of the first petition and send a message to the Board that the workers really wanted an election. The ALJ did not find credible Silvia Lopez's testimony that the work stoppage was not to gather signatures. Several other decertification proponents had used the stoppage as an opportunity to gather signatures, and Silvia Lopez acknowledged that about 800 to 1,000 new signatures (for the second petition) were collected during the work stoppage.
On October 2, 2013, after Silvia Lopez's plea for financial help while on a talk radio program resulted in the California Fresh Fruit Association (or CFFA)
There were also other protests engaged in by the pro-decertification workers, including in front of the Visalia regional office of the Board, where Silas Shawver's office as regional director was located.
Silvia Lopez filed the second petition for decertification on October 25, 2013.
The election was duly conducted on November 5, 2013. Presumably, thousands of Gerawan's agricultural employees cast their secret ballot votes that day. As noted, all of the workers' ballots were impounded by the Board and remain uncounted.
On November 13, 2013, the UFW filed its written election objections. The election objections asserted that numerous unfair labor practices and/or other misconduct by Gerawan, as the employer, warranted the dismissal of the election petition and setting aside the election. The categories of employer wrongdoing alleged in the UFW's election objections included the following:
On December 19, 2013, in response to the election objections,
The Board notified the parties that (i) the UFW's election objections and (ii) the related unfair labor practice allegations (in the General Counsel's complaint) potentially affecting the validity of the election would be heard together in a consolidated administrative hearing; however, the Board was awaiting the completion of the General Counsel's investigation of pending unfair labor practice charges. On July 31, 2014, the Board finally ordered that the executive secretary cause the matter to be set for hearing on September 29, 2014.
On September 9, 2014, after a 10-month investigation and only 20 days before the scheduled hearing date, the General Counsel filed an amended consolidated complaint, which included greatly expanded allegations of unfair labor practices against Gerawan.
The amended consolidated complaint included allegations that Gerawan had committed unfair labor practices which were described as follows: (1) undermining the UFW's status as bargaining representative by a series of communications to employees; (2) unilaterally improving the terms or conditions of employment in order to undermine the union (i.e., granting unilateral pay increases or other benefits); (3) instigating, supporting or assisting the decertification campaign in a variety of ways, including hiring Silvia Lopez for that purpose; (4) assisting the decertification effort through the conduct of various crew bosses who either directly involved themselves in the signature gathering process and/or allowed worktime signature gathering; (5) assisting the decertification effort by allowing the decertification proponents preferential attendance flexibility; (6) assisting the decertification effort by supporting or facilitating protest activities engaged in by decertification proponents against the Board and against the UFW; (7) assisting the decertification effort by providing legal representation to the decertification petitioner; and (8) threatening workers that the company would go out of business or their jobs would be lost if UFW were to obtain a collective bargaining agreement. In the prayer of the amended consolidated complaint, the Board's General
The consolidated administrative hearings conducted by the ALJ began on September 29, 2014, and ended on March 12, 2015, consisting of 105 hearing days and the examination by respective counsel of approximately 130 witnesses. On September 17, 2015, the ALJ's written decision was issued. The ALJ framed the "overall question" in the matter as "whether the employer, Gerawan Farming, Inc., ... committed unfair labor practices or other objectionable conduct with respect to the decertification election that was held on November 5, 2013." A large part of the ALJ's decision consisted of weighing and evaluating the credibility of the many witnesses and of particular portions of their testimony.
In the ALJ's decision, a number of the more serious allegations against Gerawan were rejected as unsupported. According to the ALJ's decision, the evidence failed to show that Gerawan instigated the decertification movement. The evidence also failed to show that Gerawan hired Silvia Lopez for the purpose of organizing the decertification campaign or that she was otherwise acting as Gerawan's agent. As found by the ALJ, Gerawan did not pay for Silvia Lopez's legal representation, either directly or indirectly, and there was no credible evidence that Silvia Lopez was paid anything by her employer other than for the hours she worked in the fields. Moreover, the evidence failed to show any credible threats were made to workers of jobs being lost, the company going bankrupt, closure of operations, or other such threats of what would happen if the union stayed. Nor was there any credible evidence of reprisals against pro-UFW workers, nor of threats of violence or any actual violence.
Although the ALJ found that worktime signature gathering incidents had occurred in six crews, and that there was an instance of a crew boss's direct involvement in one FLC crew, the ALJ stated that these violations were not sufficient by themselves to set aside an election. According to the ALJ, it was only in combination with the other violations committed by Gerawan that the ALJ decided that the appropriate remedy would be to set aside the election.
In holding that the election should be set aside, the ALJ stated in a conclusory manner that the cumulative effect of the employer's conduct made "it impossible to know if the signatures collected represent the workers' true sentiments," and likewise that the employer's conduct "created an environment which would have made it impossible for true employee free choice when it came time to vote." No reasoned explanation or analysis, grounded in the factual record, was provided by the ALJ to substantiate these particular conclusions or to show that any reasonable causal connection existed between Gerawan's conduct and the purported loss of employee free choice.
Exceptions to the ALJ's decision were presented to the Board, and the matter came before the Board for its review. On April 15, 2016, in Gerawan Farming, Inc., supra, 42 ALRB No. 1, the Board affirmed with minor changes
Regarding the remedy of setting aside the election, the Board adopted the same bare conclusions expressed by the ALJ. The Board's language mirrored that of the ALJ, stating: "Given the totality of the circumstances and Gerawan's unlawful actions, we conclude that it is impossible to know whether the signatures gathered in support of the decertification petition represented the workers' true sentiments. We affirm the ALJ's conclusion that Gerawan's unlawful and/or objectionable conduct tainted the entire decertification process, [and] we adopt his recommended remedy dismissing the decertification petition, and setting aside the election...." (See Gerawan Farming, Inc., supra, 42 ALRB No. 1, p. 69.) As with the ALJ decision, the Board decision in 42 ALRB No. 1 focuses almost entirely on the employer's wrongdoing, without meaningfully addressing, considering or analyzing the impact of the employer's conduct on employee free choice or the outcome of the election.
On May 13, 2016, Gerawan filed the instant petition for writ of review. On January 20, 2017, after receiving the administrative record and considering the parties' briefing, we agreed to review this matter.
Due to the length of this opinion, we offer the following roadmap of what our discussion below will entail, in sequential order: (1) a summary of the appellate standard of review for our consideration of the unfair labor practice findings; (2) our review of each of the challenged findings of unfair labor practices; (3) an explanation of why we may consider the Board's election-related remedies; (4) our conclusion that the Board applied an incomplete or
When reviewing questions of fact, we uphold the Board's findings if supported by substantial evidence on the record considered as a whole. (§ 1160.8; Tex-Cal Land Management v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 349 [156 Cal.Rptr. 1, 595 P.2d 579]; Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 20-21 [173 Cal.Rptr. 856].) Under this standard: "[W]e do not reweigh the evidence. If there is a plausible basis for the Board's factual decisions, we are not concerned that contrary findings may seem to us equally reasonable, or even more so." (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 756-757 [195 Cal.Rptr. 651, 670 P.2d 305].) "Furthermore, those findings and conclusions that are within the Board's realm of expertise are entitled to special deference. [Citation.] And, because the evaluation of witnesses' credibility is a matter particularly for the trier of fact, the Board's findings based on the credibility of witnesses will not be disturbed unless the testimony is `incredible or inherently improbable.' [Citations.]" (Harry Carian Sales v. Agricultural Labor Relations Bd. (1985) 39 Cal.3d 209, 220 [216 Cal.Rptr. 688, 703 P.2d 27].)
However, we may not take a rubber stamp approach to our review of the Board's factual findings. (Vessey & Co. v. Agricultural Labor Relations Bd. (1989) 210 Cal.App.3d 629, 643 [259 Cal.Rptr. 77].) "`[T]he test of substantiality must be measured on the basis of the entire record, rather than by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence.' [Citations.]" (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 727 [175 Cal.Rptr. 626, 631 P.2d 60], italics added.) Thus, the substantiality of evidence "`must take into account whatever in the record fairly detracts from its weight' [citation]." (Merrill Farms v. Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 176, 182 [169 Cal.Rptr. 774].) "`Substantial evidence' is not established by just `any evidence' [citation] and is not shown by mere suspicions of unlawful motivation [citation]. The burden of proving unlawful conduct is on the ALRB [citation], and such conduct will not lightly be inferred [citation]. The standard of review is met, however, if there is relevant evidence in the record which a reasonable mind might accept in support of the findings. [Citation.]" (Vessey & Co. v. Agricultural Labor Relations Bd., supra, 210 Cal.App.3d at p. 642.)
The language in section 1160.8 prescribing the substantial evidence standard of review based on "the record considered as a whole" was taken from
Our review is not limited to the question of whether substantial evidence supported the Board's decision. We may also consider whether an error of law was made and whether the decision was procedurally sound. (Phillip D. Bertelsen, Inc. v. Agricultural Labor Relations Bd. (1992) 2 Cal.App.4th 506, 519 [3 Cal.Rptr.2d 58].) Board decisions that rest on "erroneous legal foundations" will be set aside. (Artesia Dairy v. Agricultural Labor Relations Bd. (2008) 168 Cal.App.4th 598, 605 [86 Cal.Rptr.3d 91].) Such an error of law would include the Board's failure to apply the correct legal standard. (J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d 1, 38-39.) We review all such questions of law de novo.
As to our review of remedies granted by the Board, we are guided by several core principles. In stating these principles, we do not yet address the issue of whether we may reach the election-related aspects of the Board's decision and order. That discussion will come in a later section of this opinion. Generally speaking, because the Board has broad discretion to fashion remedies to effectuate the purposes of the ALRA, courts take a cautious approach and will interfere only where the remedy is patently unreasonable under the statute (Nish Noroian Farms v. Agricultural Labor Relations Bd. (1984) 35 Cal.3d 726, 745 [201 Cal.Rptr. 1, 677 P.2d 1170]), or
Accordingly, even though the Board's discretion in fashioning an appropriate remedy or remedies to redress unfair labor practices is broad, it is not without boundaries. Among other things, such discretion must be exercised reasonably, not punitively. (J. R. Norton Co. v. Agricultural Labor Relations Bd. (1987) 192 Cal.App.3d 874, 908 [238 Cal.Rptr. 87].) When an order of the Board is so severe in comparison to the conduct involved in the unfair labor practice that it is clearly punitive in character, the order will be annulled. (Ibid.; accord, Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 940 [156 Cal.Rptr. 152]; Laflin & Laflin v. Agricultural Labor Relations Bd. (1985) 166 Cal.App.3d 368, 380 [212 Cal.Rptr. 415].)
We now undertake our review of the unfair labor practice findings under the above standards. Gerawan argues that multiple findings of unfair labor practices were not supported by the record considered as a whole. Gerawan also characterizes the purported violations, to the extent they did occur, as relatively minor, sporadic and/or isolated, rather than pervasive or egregious in nature, particularly if the size and scope of the operations and the widely dispersed workforce is taken into account. As to certain findings, Gerawan also argues that the challenged conduct did not constitute an unfair labor practice as a matter of law. We proceed to consider each of the particular unfair labor practice findings that are at issue.
Gerawan first challenges the sufficiency of the evidence to support the findings of worktime signature gathering and/or supervisor assistance regarding signature gathering in certain of the crews. We discuss each of the findings according to the particular crew in which the incident allegedly occurred, identifying the respective crew based on the name of its crew boss. The challenged findings are considered under three headings or categories: (i) the ALJ's findings of supervisor assistance, (ii) the ALJ's findings of worktime signature gathering without supervisor assistance, and (iii) the Board's own additional findings of worktime signature gathering beyond what the ALJ found.
As previously indicated, we apply the substantial evidence test to the Board's factual determinations. Under that test, the Board's findings will be affirmed where they are supported by substantial evidence on the record considered as a whole. (§ 1160.8; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra, 24 Cal.3d at p. 349; Montebello Rose Co. v. Agricultural Labor Relations Bd., supra, 119 Cal.App.3d at pp. 20-21.) "[W]e do not reweigh the evidence. If there is a plausible basis for the Board's factual decisions, we are not concerned that contrary findings may seem to us equally reasonable, or even more so." (Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d at pp. 756-757.) Although we do not reweigh the evidence, we do consider the entire record, and affirm only if there is a reasonable basis for the Board's determination that unlawful conduct occurred. (See Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 727; Merrill Farms v. Agricultural Labor Relations Bd., supra, 113 Cal.App.3d at p. 182; Vessey & Co. v. Agricultural Labor Relations Bd., supra, 210 Cal.App.3d at p. 642.)
The ALJ and the Board
The ALJ found that in mid-September 2013,
In contrast, Evangelista testified that a blank paper was brought out to him by a woman indicating that signatures were needed. The crew was on a break at the time. Evangelista thought the paper merely related to safety training, so he just grabbed the paper and asked his crew to sign it. The woman left after handing him the piece of paper and did not stay or talk to the crew. After a majority of the crew signed, he gave the paper to a supervisor.
The ALJ decided that Evangelista's testimony (i.e., that he thought the paper concerned safety training) was not credible because, according to the ALJ, no training had occurred on that day or the preceding day. However, on that point the ALJ clearly misread or misunderstood the testimony. Although it is true that Evangelista stated he did not have a safety class on that morning, he went on to say, in responding to the question of whether he had the class the day before, that he did not recall the exact date of the training, "but yes" it definitely had occurred, in which the workers were "told what we're — we are supposed to do, about how to handle the ladder, about symptoms." Since there had been very recent training, the ALJ's rationale for discrediting Evangelista's testimony was unfounded. Moreover, Madrigal's testimony that Evangelista said he "already signed" something is so vague in what it may have referred to that we conclude it did not reasonably substantiate that Evangelista knew he signed the decertification petition. Mere suspicion or speculation of wrongdoing is inadequate. (Vessey & Co. v. Agricultural Labor Relations Bd., supra, 210 Cal.App.3d at p. 642.) For these reasons, we conclude that the finding by the ALJ of assistance by Evangelista was not supported by substantial evidence under the record as a whole.
We note the ALJ also found that Evangelista's FLC crew stopped working at Gerawan as of the first week of October 2013, and thus, "none of the crew
The ALJ found that crew boss Leonel Nuñez gathered his crew together during worktime at the request of one Virginia Chairez, and that Chairez proceeded to request signatures on the decertification petition. This finding was based on the testimony of a crew member by the name of Rulber Gonzalez. Other testimony by Gonzalez, however, was flatly rejected by the ALJ as not credible, including Gonzalez's assertion that Nuñez made verbal threats the company would go bankrupt if the union remained or that Nuñez expressed anger toward workers who did not sign the petition.
In his explanation of the pertinent events, Nuñez testified that he had already gathered his crew together for the purpose of giving updated instructions when Chairez arrived, asking for permission to speak to his crew. No attendance counter had yet arrived that day to count the workers. Nuñez assumed Chairez to be a counter and that she possibly had an announcement to read from the office, which counters sometimes did, so he gave her permission to speak as long as it was brief. Just before Chairez started talking to the crew, Nuñez walked away from the area to take a call from his supervisor about updated instructions for his crew. He did not hear what was being said at the meeting. He returned a few minutes later to see signatures being obtained by Chairez from several workers, but he did not know what they were for. He also noted that sometimes signatures were needed to confirm that safety training had occurred.
Crew member Armando Flores testified that a woman had come to the crew in October 2013, and that she requested signatures during worktime relating to the union. Flores did not think that Nuñez was nearby at that time. Flores personally declined to sign.
In evaluating credibility, the ALJ found implausible Nuñez's testimony that he (Nuñez) misunderstood the purpose of the visit from Chairez. The ALJ reasoned that if Nuñez had actually thought Chairez was there to read an official announcement from the office (i.e., at the direction of a manager), Nuñez would not have treated the matter as depending on his permission for her to speak and he would not have insisted that she keep it brief. The ALJ also noted that Nuñez's testimony describing how he introduced Chairez to
This is an instance where, if we were the trier of fact, we might have reached a different conclusion on this matter because Nuñez's explanation of events (i.e., that he thought Chairez was there as a "counter" on official business) was, despite any minor discrepancies, an account that seemed to make sense of what happened in a reasonable and believable way. Nevertheless, the inconsistencies and other circumstances cited by the ALJ in evaluating the credibility of Nuñez's testimony could reasonably lead one to a different conclusion. Therefore, we cannot say that the ALJ's credibility determination in this instance was inherently improbable or unreasonable. As our Supreme Court has stated, "[i]f there is a plausible basis for the Board's factual decisions, we are not concerned that contrary findings may seem to us equally reasonable, or even more so." (Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d at pp. 756-757.) Furthermore, "because the evaluation of witnesses' credibility is a matter particularly for the trier of fact, the Board's findings based on the credibility of witnesses will not be disturbed unless the testimony is `incredible or inherently improbable.' [Citations.]" (Harry Carian Sales v. Agricultural Labor Relations Bd., supra, 39 Cal.3d at p. 220.) We conclude that the ALJ's findings on this matter were supported by substantial evidence.
The ALJ found worktime signature gathering (without direct supervisor assistance) in five crews. When the worktime signature gathering that occurred in the crew of Leonel Nuñez is included (see above), there were a total of six incidents of worktime signature gathering found by the ALJ. Gerawan challenges each of these particular findings. Preliminarily, we note the Board's position on when worktime signature gathering may constitute unlawful assistance. "Merely permitting the circulation of the petition on company time or allowing employees to discuss, during working hours,
In reviewing the findings, we shall first consider the several individual findings of worktime signature gathering, and then we shall separately examine the question of whether there was substantial evidence to establish that such conduct was discriminatory.
The ALJ concluded that worktime signature gathering for the decertification petition had occurred in the crew of Santos Rios, but the ALJ made no factual finding to support that conclusion. Moreover, the record does not support the ALJ's conclusion. One crew member, Gustavo Vallejo, testified that he witnessed Santos Rios give papers to his brother, Oscar Rios, and asked Oscar to obtain signatures. Vallejo testified that he witnessed Oscar getting signatures on the papers from approximately 15 workers. However, Vallejo's testimony did not establish the content or purpose of the papers. The ALJ found Vallejo was not credible to the extent that he (Vallejo) was suggesting that the papers given by Santos Rios to Oscar were decertification papers. The only other evidence in the record concerning the papers and signatures was Rios's testimony that he asked his brother to obtain signatures relating to workers picking up their paychecks.
We conclude there was no substantial evidence in the record as a whole to support the ALJ's finding that worktime signature gathering on the decertification petition occurred in the crew of Santos Rios.
The ALJ found that worktime signature gathering occurred in the crew of Martin Elizondo Cruz. Two workers in that crew, Gustavo Vallejo and Jorge Aguirre, said they witnessed three individuals gathering decertification signatures on the outskirts of where Cruz was conducting a training class. Aguirre also remembered an additional occasion when two people came to Cruz's crew for signatures during worktime after the crew had moved from the trees
Cruz testified that the only time a worker came to gather signatures was when Rolando Padilla did so once during a lunch break, but the ALJ did not credit Cruz's testimony and noted certain discrepancies. The ALJ's credibility decision was not inherently improbable or unreasonable, but was within the ALJ's prerogative as finder of fact under all the circumstances. We conclude the ALJ's finding that worktime signature gathering took place in the crew of Martin Elizondo Cruz was supported by substantial evidence in the record.
The ALJ found that there was worktime signature gathering in the crew of Gloria Mendez, but also concluded that Mendez did not see it happen. Two members of Mendez's crew, Alma Delia Patiño and Severiano Salas, testified to an incident in which Erika Solano had sought signatures for the decertification petition during work hours. Their accounts were consistent and found to be credible by the ALJ. Salas noted that Mendez was not facing their direction when this occurred. Another crew member, Reina Ibanez, gave similar testimony about Solano soliciting signatures. Mendez denied that she ever saw or became aware of any signature gathering in her crew during worktime. The ALJ concluded that worktime signature gathering by Solano did occur, but Mendez was not aware of it. Substantial evidence supported the ALJ's factual findings.
In finding worktime signature gathering in the crew of Francisco Mendoza, the ALJ credited the testimony of crew member Adela Castillo. Castillo testified that while she was engaged in work lifting peach buckets onto a trailer, a man and a woman approached and asked if she would like to sign a paper to stop the union from taking 3 percent. Castillo said "no" because she did not know what to do, and the woman responded "[t]hat was fine." Castillo said that after the couple spoke to her, they moved on and talked to people in another row. Castillo did not know the location of her crew boss, Mendoza, when this incident occurred. We agree with the ALJ that Castillo's testimony supported the finding of this lone incident of worktime signature gathering, and also that there was no evidence it was seen or known by her crew boss, Mendoza.
The ALJ found worktime signature gathering in the crew of Telesforo Mendoza based on the testimony of one witness, Jaime Montano Dominguez (Montano). Although Montano technically reported to Mendoza, he was not working in the trees or grapes but was building structures or canopies under the direction of "Julio." While at work building the structures, he was approached by a woman asking for a signature. Montano told her he would not sign because he was a union member. He identified the woman as Silvia Lopez.
Gerawan argues that the ALJ should have discounted Montano's testimony since he was an active union supporter and no corroborating evidence was presented by the General Counsel. We disagree. Although the ALJ could have taken that approach, he also was entitled to conclude that Montano was telling the truth regardless of union sympathies. Mendoza himself did not testify, which Gerawan claims was due to unavailability at the time of the hearing. In any event, no other evidence was presented by either side. We conclude that Montano's testimony constituted substantial evidence of an isolated incident of worktime signature gathering in Telesforo Mendoza's crew.
As noted, the Board found two additional instances of worktime signature gathering, not found by the ALJ. The additional findings related to the FLC crew of Alejandro Vasquez and the direct hire crew of Reynaldo Villavicencio. Gerawan challenges both of these findings by the Board.
The Board relied on the testimony of Javier Blanco in concluding that there was worktime signature gathering in the FLC crew of Alejandro Vasquez. Blanco testified that on one occasion in July 2013, Silvia Lopez visited his crew to collect signatures during worktime. There were about 20 members of the crew present. The crew boss, Alejandro Vasquez, briefly mentioned to Blanco that a lady was coming to talk to them. Blanco was just returning from the bathroom when Vasquez, who was walking away from the crew, said this to Blanco. At that point, the crew boss left the area, while the members of the crew formed into a circle. There was no evidence the crew boss actually gathered the crew together, rather than simply informing them (while walking away from the area) that someone was coming to speak to them. Silvia Lopez arrived and spoke about supporting the company rather than the union, and she had a paper to sign. The time period involved was
Gerawan argues that Blanco's testimony was obviously biased, inconsistent and unreliable. In this regard, Gerawan notes that Blanco appeared to have harbored animus against Gerawan because he was suspended from direct-hire employment at Gerawan based on his job performance. Blanco was under the impression that if he supported the union, the union might be able to get his direct-hire job back. Shortly before the hearing, Blanco received visits from UFW organizers at his home, where Blanco was urged to "support the union and not the company," and he agreed that he would do so. At the hearing, Blanco changed his testimony several times regarding what Silvia Lopez allegedly said during her visit to the crew. At first, Blanco testified that Lopez said that the signatures were to get rid of the union. Then Blanco claimed that Lopez refused to say anything about the purpose for the signatures and that he did not learn why she was gathering signatures until he heard about it later from other workers. Later, he shifted back to saying that Silvia Lopez had stated the reason for the signatures and that he had understood her. The ALJ interjected: "I'm confused why then, a couple questions ago, it sounded like you didn't know why she was there. Did I misunderstand something?" Blanco responded: "No. No." Blanco's testimony also changed without explanation on other topics. When asked the date he started working in Vasquez's crew at Gerawan in 2013, he first represented it was in March of that year, then he said it was late July, and after that he claimed it was June.
In finding worktime signature gathering in Vasquez's crew, the Board implicitly found that Blanco's account of Silvia Lopez's visit to that crew was credible. In reaching that conclusion, the Board did not address Blanco's potential bias or his inconsistent, vacillating testimony. Instead, the Board simply noted in its findings that the crew boss, Vasquez, did not testify and no other witnesses specifically contradicted Blanco's testimony. What the Board failed to acknowledge was that worktime signature gathering in Vasquez's crew was not alleged in the General Counsel's amended consolidated complaint; nor was it referenced in the UFW's election objections.
The ALJ discussed evidence regarding the crew of Reynaldo Villavicencio, but did not make any findings one way or the other with respect to worktime signature gathering. A member of Reynaldo Villavicencio's crew, Francisco Severiano, who at times worked in the same row as Silvia Lopez, testified at length about Lopez's attendance, hours and work habits. The ALJ summarized that portion of Severiano's testimony and said that he credited all of what he had summarized. However, no mention was made in the ALJ's summary of the remainder of Severiano's testimony, which had described several occasions in which Lopez had asked for signatures of crew members on a petition to stop the union from coming in. Severiano testified that Lopez had asked for the signatures while the crew was working. Based on Severiano's testimony, the Board found that worktime signature gathering occurred in the crew of Reynaldo Villavicencio. We conclude that Severiano's testimony constituted substantial evidence in support of the Board's findings.
After considering his findings of worktime signature gathering and/or crew boss assistance in signature gathering, the ALJ concluded that these incidents did not provide a sufficient basis (by themselves) to set aside the election. The ALJ's assessment was as follows: "In the absence of any other violations, I would have found that the Gerawan work-time signature gathering was an unfair labor practice, but that, by itself, it fell slightly short of the
Gerawan maintains that the findings regarding worktime signatures were at best isolated and sporadic events, particularly when considered in light of the size and scope of operations involving over 50 crews. Moreover, there was very little evidence that any crew bosses saw or were aware of the signature gathering during worktime. The ALJ was not unsympathetic to Gerawan's view, noting that the workers in the trees and grapes were separated by enough distance and obstructions that a crew boss cannot always see all of his workers. Again, in the ALJ's assessment, it was the combination of assistance relating to signature gathering with the other purported wrongdoing that led the ALJ (and the Board) to conclude that it was necessary to set aside the election.
However, even though an affirmative defense may not have been shown, we agree with Gerawan that the ALJ and the Board should have considered Shawver's statements to the Superior Court giving his assessment of the nature and efficacy of the training, and describing the likely impact of such training on the workers' understanding of their rights. In that regard, we have granted the request by Gerawan for judicial notice of the court records regarding the injunctive proceedings in the Superior Court, which records were presented in the ALJ hearing but were not considered by the ALJ or the Board. Since those records were potentially relevant to the Board's evaluation of the issue of whether workers would likely have been coerced or intimidated, the Board should have considered them.
The ALJ concluded that Gerawan unlawfully assisted the decertification effort by showing favoritism toward pro-decertification signature gatherers with respect to their ability to engage in worktime signature gathering (i.e., the purported discrimination). In addition, the ALJ found that Gerawan extended to Silvia Lopez a "virtual sabbatical," meaning that she was allowed extensive time off that she often used for obtaining decertification signatures. Gerawan challenges both of these findings.
Preliminarily, we note that the ALJ correctly found that workers in several crews asked their crew bosses for permission to gather pro-union signatures during worktime. In the crew of Alfredo Zarate, worker Agustin Garcia testified that he and another worker, Alberto Bermejo, asked Zarate for permission to gather signatures during work hours. Zarate confirmed that Garcia and Bermejo made that request, and he responded that they could collect signatures during the break times or rest times, but not during working hours. In the crew of Antonio Sanchez, worker Juan Lopez asked Sanchez for permission to solicit pro-union signatures during work hours, which request was turned down by Sanchez. In the crew of Francisco Maldonado, workers Eleazar Mulato and Rafael Marquez testified that they asked their crew boss, Maldonado, for permission to collect signatures during work hours. Maldonado confirmed that he told Marquez and Mulato that they could gather signatures during lunch or break time, but he did not grant their request to engage in that activity during working hours. Finally, in the crew of Martin Elizondo Cruz, crew member Jorge Aguirre asked permission to gather signatures for the union during worktime. According to Aguirre, Cruz denied his request, saying he had no authorization to grant such permission and that Aguirre would have to get special permission from the office for that.
The ALJ inferred from the above evidence, together with the prior findings of worktime signature gathering by pro-decertification workers, that Gerawan had allowed pro-decertification workers to gather signatures during worktime but refused to allow pro-union workers to do the same thing. In challenging the ALJ's decision on this issue, Gerawan contends that, when viewed in
According to Jose Erevia, on August 26, 2013, he received an anonymous telephone call alerting him that the UFW was planning to have pro-UFW workers attempt to entrap crew bosses into turning down requests to gather pro-union signatures during worktime. The next day, Jose Erevia directed all crew bosses to read a statement to their crews that included the following message: "To avoid false accusations of wrongdoing or being trapped into committing violations, do not ask me for ... permission to gather signatures or distribute promotional material. If you choose that activity then do it during your rest periods, meal period, and off-the-clock periods when you are free to use your time that way." The wording of the announcement was clear that, regardless of who asked or whether they were pro-union or pro-decertification, the answer would be the same. Soon afterwards, consistent with the anonymous tip, there were multiple incidents in several crews where the crew bosses were approached by individual workers who requested permission to gather signatures for the union during worktime. These worker requests, and the crew bosses' responses to them, constituted the critical evidence relied on by the ALJ in finding disparate treatment. However, both the ALJ and the Board glossed over or sidestepped the evidence demonstrating the staged
Furthermore, as pointed out by Gerawan, the orchestrated requests made by pro-UFW workers occurred soon after the crew bosses had received training from Silas Shawver on behalf of the Board, which included instruction on the importance of not assisting signature gathering. At about the same time, the TRO sought by the Board was issued by the Superior Court, and in response Erevia read the TRO to crew bosses and supervisors and explained what it meant and the importance of complying fully with its terms.
The crucial factual question is this: Were the crew bosses' responses denying the requests by pro-UFW workers for express permission to gather worktime signatures sufficient under the totality of circumstances to give rise to a reasonable inference of preferential treatment toward pro-decertification workers in regard to signature gathering? We conclude they were not. From all indications, Gerawan's directive to its crew bosses was a facially neutral response to the information learned in the anonymous tip, and, given the entire factual context, it is clear that the crew bosses' responses simply complied with that directive and also followed their recent training. Although it is true that several pro-union requests for permission were denied (i.e., they were the only workers who made such a request), there was no evidence that a comparable pro-decertification request was put forward and granted. Indeed, given the clear and specific nature of the announcement that crew bosses were required to read to their crews, it seems implausible that the answer would have been different if the requesting workers had been pro-decertification.
In finding preferential treatment, the ALJ appears to have compared the refusals to grant express permission to gather pro-union worktime signatures with the fact that pro-decertification workers had, on their own accord, previously engaged in some scattered incidents of worktime signature gathering. However, under the unique circumstances here as explained above, that was not an apt comparison. Given the timing, the context, the crew bosses' recent training, and the neutral announcement in response to the anonymous tip, all of which were clearly reflected in the record and cannot be ignored by this court, the verbal refusals of permission relied on by the ALJ were simply too situationally distinct, and the attempted comparison too tenuous, to provide a basis for a reasonable inference of discrimination.
Instead, it appears the relevant comparison would be if pro-UFW workers were actually out in the fields seeking signatures during worktime but were stopped from doing so, while in the same or a similar setting, pro-decertification workers were not stopped from engaging in such activity during worktime. Looking to the record as a whole, we do not discern that
The ALJ found, and the Board affirmed, that Gerawan assisted the decertification effort by allowing Silvia Lopez to take extensive time off work, such that she received in effect a "virtual sabbatical" which provided her a greater opportunity to gather signatures for the decertification petition. The undisputed evidence showed that, for the 10-week period from August 12, 2013, to October 20, 2013, Silvia Lopez worked an average of only 8.3 hours per week, while other workers at Gerawan were working approximately 50 hours per week on average. During that time, Silvia Lopez had a regular presence on company property collecting signatures. Her daughter, Belen Solano, assisted her in collecting signatures. From August 12, 2013, to September 15, 2013, Belen only worked an average of 9.7 hours per week. It was also undisputed that the employment manual at Gerawan provided that advance written approval by the company was required for a leave of absence, and further provided that the company may discipline an employee who has excessive absences, tardiness, or long lunch breaks. These employment policies were not enforced with respect to Silvia Lopez or Belen Solano.
According to the ALJ, it was evident that "Silvia and Belen could miss work with impunity, but still travel almost at will upon company property.... Yet Inocencio Bernal, who worked in the same crew, lost his position by simply taking off two days in a row." At the hearing, Bernal testified that he had been granted one day off to help his wife who was being released from the hospital, but when he asked his crew boss, Reynaldo Villavicencio, for permission to take one more day off to meet with his immigration attorney,
Based on the above evidence, the ALJ found employer assistance based on the "virtual sabbatical" given to Silvia Lopez, which facilitated the circulation of the decertification petition. The Board agreed and affirmed the ALJ's finding and rationale. In doing so, the Board declared that the present case was "strikingly similar" to Abatti Farms, Inc. (1981) 7 ALRB No. 36 (Abatti Farms), where, according to the Board: "1) proponents of the petition were granted leaves of absence and other benefits (such as large bonuses) to facilitate circulation of the petition; 2) the employer sponsored a holiday party where the petition was circulated in the presence of supervisors; and 3) the employer brought the decertification petitioner together with legal counsel chosen by the employer so the petitioner could consult with him." The Board noted that in Abatti Farms, "the employer ... not only gave the decertification petitioner an extended leave of absence to campaign, but also `abetted him in his decertification efforts by ensuring that he lost nothing [financially] because of the time he spent campaigning.'" The Board suggested that since Silvia Lopez was not terminated (i.e., she "remained employed despite ... extended absences"), she likewise "lost nothing" due to the time spent campaigning. Finally, the Board observed that in Abatti Farms, the employer had unpersuasively tried to dispel the inference of unlawful assistance by pointing to evidence of its liberal leave policy. That argument failed in Abatti Farms because another worker had received harsh treatment for taking a one-day leave of absence for union business. Here, similarly, Gerawan had argued that Lopez's extended absences did not demonstrate wrongdoing because the company took a very flexible approach in enforcing its attendance policy. As noted by the Board, that argument was unpersuasive in the present case in light of Bernal's testimony that he lost his position after taking two days off.
Gerawan challenges the Board's conclusions. According to Gerawan, not only is the instant case substantially dissimilar to Abatti Farms, but there was no evidence that Gerawan's flexibility with respect to the work attendance of
To begin with, we agree with Gerawan that this case is not on all fours with Abatti Farms. In Abatti Farms, the Board concluded that the employer was guilty of pervasive interference and unlawful assistance with the decertification campaign based on a combination of multiple factors. One of those factors was that the petitioner not only received a leave of absence that facilitated signature gathering, but also was paid a large financial bonus and other unearned benefits ensuring that the petitioner "lost nothing because of the time he spent campaigning." (Abatti Farms, supra, 7 ALRB No. 36, p. 6.) Here, in contrast, Silvia Lopez and other decertification proponents were paid only for the hours of work they actually performed on the job, and nothing more. Thus, if anything, it would have been a financial detriment for Silvia Lopez or Belen Solano to take time off from their work to gather signatures, because in doing so they would be forgoing the wages that they might otherwise have earned if they were on the job. A second factor in the Abatti Farms case was the fact that the employer had sponsored a company Christmas party where the petition was conspicuously circulated for signatures in the close presence of the company's supervisors. (Abatti Farms, supra, 7 ALRB No. 36, p. 7.) Nothing comparable occurred in this case. The third factor in Abatti Farms was that the employer went beyond merely recommending an attorney, but affirmatively made arrangements to bring together the petitioner and a particular lawyer. (Ibid.) In the present case, in contrast, Gerawan had no involvement in the process by which Silvia Lopez obtained legal representation. Because of the significant differences between Abatti Farms and the present case, we conclude that Abatti Farms is clearly distinguishable. Contrary to the Board's suggestion, the instant matter simply cannot be shoehorned into the Abatti Farms precedent. Therefore, we review the present issue under its own unique facts and circumstances, as shown from the record as a whole, to determine whether substantial evidence
Next, Gerawan maintains that by allowing Silvia Lopez and Belen Solano to take extensive time off, it was merely giving deference to and/or avoiding interference with concerted activity on the part of its workers. In support of this proposition, Gerawan points out that crew member Francisco Severiano testified that when he complained to the crew boss, Reynaldo Villavicencio, about Silvia Lopez's absences, Villavicencio responded that he could do nothing about that.
Although Gerawan's explanation is arguably a reasonable one, it is not the only plausible interpretation of the evidence. Further, there is an additional piece of the factual puzzle that goes against Gerawan's position. As the ALJ found, Gerawan denied a request from the UFW to allow three or four workers to attend a negotiating session. Later, with respect to subsequent negotiating sessions, Gerawan ultimately agreed to release the workers under conditions where their absences would only be for a couple of hours to attend afternoon negotiating sessions. It is apparent that Gerawan's solution was to allow the pro-UFW workers time off to participate in the negotiating sessions after adjustments to the timing of the negotiating sessions minimized the disruption to the workers' work schedules. Thus, an interest in minimizing the loss of worktime was shown by Gerawan with respect to the pro-UFW workers, but that same concern as employer was not applied toward pro-decertification workers Silvia Lopez or Belen Solano.
On September 30, 2013, in response to the regional director's rejection of the first petition, Silvia Lopez and other proponents of decertification carried out a massive work stoppage and protest at Gerawan's west side ranch property. Additionally, on October 2, 2013, with the help of a financial donation by a third party organization (CFFA), Silvia Lopez and several hundred other workers who sought a decertification election were able to travel to Sacramento on chartered buses to petition for redress before the Board.
In considering the above worker-initiated protests, the Board found that these events amounted to unlawful assistance by Gerawan to the decertification movement because Gerawan did not make any effort to intervene (as to the Sept. 30, 2013 work stoppage) and/or was complicit in some manner (as to the Oct. 2, 2013 bus trip). Gerawan challenges the Board's findings in each matter, maintaining that it had no advance knowledge of the worker protests, it was not complicit, and that under the circumstances, it had no obligation to intervene. Among other things, Gerawan argues that it was permissible for it to take a cautious or deferential approach to the concerted activity engaged in by its workers, in order to avoid employer interference with it, and, in merely exercising such restraint during peaceful worker protests, it did not commit an unfair labor practice. On the record before us, as more fully explained below, we conclude that Gerawan is correct.
We preface our discussion of these matters with a recitation of the ALRA's strong protections of employees' concerted activity. Concerning agricultural workers' right to engage in concerted activity free of employer interference, section 1140.2 provides: "It is hereby stated to be the policy of the State of California to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing, ... and to be free from the interference, restraint, or
On September 30, 2013, only a few days after the regional director of the Board rejected the first decertification petition, Silvia Lopez and other leaders in the pro-decertification campaign responded by carrying out a large work stoppage
Silvia Lopez testified that the September 30, 2013 work stoppage and protest was not for the purpose of gathering signatures, but was to protest the dismissal of the first petition and send a message to the Board that the workers really wanted an election. The ALJ did not credit Silvia Lopez's testimony that the work stoppage was not to gather signatures. Other decertification proponents had testified that at least one of the reasons for the September 30 work stoppage was to gather signatures, and Silvia Lopez acknowledged that about 800 to 1,000 new signatures (for the second petition) were collected during the work stoppage and protest.
The Board found that although Gerawan did not know about the work stoppage in advance and did not give permission to its workers to walk off the job or gather signatures, nonetheless, Gerawan's failure to intervene in the unfolding events of that morning
Erevia further testified that, based on conversations with the security manager and field auditors (between 6:00 a.m. and 7:30 a.m.), he came to understand that entrances to fields had been blocked. Erevia said he did not have any precise information, but based on the prior report that there was a
We note that office manager, Tatjana Projkovska, provided a similar account. She recalled the day of the work stoppage as being highly chaotic and extraordinary. Early that morning, at about 6:00 or 6:30 a.m., while still at home, she received a call from a counter about a ranch entrance being blocked. Projkovska assumed it was something routine, so she sent a message that the crew should try to use an alternative entrance. At about 6:30 or 6:45 a.m., another call came in from another counter informing her that workers were "walking towards Madera Avenue, which is Road 145." Projkovska realized at that point that "something [was] going on," since workers do not normally leave their assigned worksite and just start walking. She called Erevia, who did not know what to make of it all, but asked Projkovska to be on standby. Projkovska drove to the west side office, and on the way passed through the intersection of 145 and Central. She testified there was a "massive amount of people" at that location; they were yelling and had signs that read "Let us vote," and "No UFW." She had to honk the horn to get the people to move out of her car's path so she could get through the crowd without hitting anyone. Projkovska arrived at the office between 8:15 and 8:35 a.m. During the course of that morning, plant manager Marco Luna called her several times, each time asking her to push further back the scheduling of workers at the processing plant to a later start time, since it did not (yet) appear that any peaches were being harvested.
Projkovska testified that Erevia called and asked her to "get every single crew boss at the office as soon as possible" because "[t]here will be a conference call." In response, Projkovska had her clerks call all the crew bosses to tell them to come to the office right away and to "stay away from whatever is going on, on 145." Projkovska stated she had her clerks include the additional message to stay away from 145 because what was happening there was obviously union-related and she had attended the training given by Silas Shawver (i.e., the Board training for supervisors and crew bosses) where Shawver gave specific instructions that "if anything's going on union-related, you as a supervisor or crew boss, you stay away from it." The crew bosses gathered at the west side office, and the conference call took place at about 10:30 a.m. The call lasted about 20 or 30 minutes. Because the conference call was conducted by or in consultation with company attorneys, the content of the conference call was deemed privileged and was not part of
Based on the above summary of the pertinent record, we conclude that the Board's premise that Gerawan's managers had knowledge of facts creating a duty to immediately intervene in the workers' protest is simply not borne out by Erevia's testimony or by the record as a whole. The Board relied on Erevia's testimony, but at most that testimony (and the remainder of the record) consistently showed the following: A massive worker protest was underway that morning, and the situation was highly chaotic and fluid. After some initial confusion, it was learned that the union was not the instigator. Workers were arriving, but they were also walking away from the work entrances toward a larger protest. While there were initial reports of entrances being blocked, no precise details were known, and the crowds of workers themselves were a likely explanation for the obstruction. In any event, the workers were moving down toward the site of the protest, at 145 and Central.
In light of the record, the present case is readily distinguishable from the cases cited by the Board in which a duty to intervene was held to exist. For example, in Newport News Shipbuilding & Dry Dock Co. (1978) 236 NLRB 1499, a "dozen incidents of confrontation" occurred over a period of 10 days between members of rival unions. (Id. at p. 1501.) To keep members of the rival union away, one of the unions engaged in continuing acts of harassment and intimidation over the 10-day period that included removing anyone from a particular work zone who was a member of the rival union (regardless of the fact that the person was there for work-related reasons), grabbing any papers or work drawings from the person's possession, and ordering them to stay away in an intimidating manner. (Id. at pp. 1505-1507.) Although no physical acts of harm or violence had occurred, "the intimidation and threat
Similarly, the case of K.B. Specialty Foods Co. (2003) 339 NLRB 740 represents a stark contrast to the present case. In that case, a group of anti-union employees confronted union representatives, yelled insults, hurled several rocks, made a threat to run over the union representatives, and set union flyers on fire. (Id. at p. 748.) Other cases cited by the Board are of the same sort factually, and hence, distinguishable. (See, e.g., Newton Brothers Lumber Co. (1953) 103 NLRB 564, 567-569; Fred P. Weissman Co. (1946) 69 NLRB 1002.) For example, in Newton Brothers Lumber Co., unlike the present case, the employer was advised that the rights of a pro-union employee had been and still were being interfered with in the workplace by certain anti-union employees (i.e., through means of violence, forced exclusion from the workplace and threats) and the employer did nothing to prevent that situation's continuation. (Id. at pp. 567-569.)
To reiterate, we conclude that the isolated testimony of Erevia, and the record as a whole, fail to support the Board's premise that Gerawan had knowledge giving rise to an affirmative duty to intervene in the protest.
The crew bosses' testimony, although at times less than clear in describing initial reactions to the work stoppage, was entirely consistent with the circumstances noted above. Most of the crew bosses testified that they left the area or distanced themselves from the workers while awaiting word from supervisors on what to do. Two stated they were somewhat fearful or concerned for their own safety. Other crew bosses were more explicit in recalling their training and/or expressing a concern to not interfere with concerted activity. For example, Raquel Villavicencio testified that she was tense and afraid, she had never seen anything like it before, but she realized that she should remove herself from the area of the crowds based on Jose Erevia's training to leave when there is a large group of workers. Crew boss Benigno Gonzales stated he knew he should get away from the area, and that he did not call workers to come back during the protest at 145 and Central
Based on the foregoing, the Board's conclusion that the crew bosses' reactions to the work stoppage were "surreal" or somehow revealed purported wrongdoing on Gerawan's part was not supported by substantial evidence in the record as a whole. At most, the crew bosses' deferential and hands-off response was — from an evidentiary standpoint — equivocal and inconclusive concerning the issues at hand. If anything, as the above summary of the larger record indicates, the crew bosses' reactions more closely and coherently aligned with the factual explanations offered by Gerawan — i.e., that the crew bosses were acting in accordance with their training to avoid concerted activity. In short, the crew bosses' nonintervention into the workers' protest that morning did not constitute substantial evidence of unlawful conduct on Gerawan's part.
In accordance with the foregoing analysis, we conclude there was no substantial evidence in the record as a whole to support the Board's findings and conclusion that Gerawan's failure to intervene in the September 30, 2013 work stoppage and protest constituted an unfair labor practice. As explained above, the Board focused upon equivocal, fragmentary evidence that did not prove the existence of a duty to immediately intervene, and the Board drew inferences from such evidence that neither the evidence by itself nor the record as a whole could reasonably support. As we noted previously, "`[T]he test of substantiality must be measured on the basis of the entire record, rather than by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence.' [Citations.]" (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at pp. 727-728, italics added.) Thus, the substantiality of evidence "`must take into account whatever in the record fairly detracts from its weight' [citation]." (Merrill Farms v. Agricultural Labor Relations Bd., supra, 113 Cal.App.3d at p. 182.) Further, a reviewing court is not barred from setting aside a Board decision where the court "`cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view.'" (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., supra, 111 Cal.App.3d at p. 265, quoting Universal Camera Corp. v. Labor Bd., supra, 340 U.S. at pp. 487-488.) Such is the case here. In the end, what emerges is that the Board attempted to hang an unfair labor practice finding on what amounted to little more than bare suspicions. That, of course, was insufficient. (Vessey & Co. v. Agricultural Labor Relations Bd., supra, 210 Cal.App.3d at p. 642.) Moreover, our conclusion that Gerawan's failure to intervene did not constitute an unfair labor practice is further confirmed by the fundamental policy of the ALRA to promote the right of agricultural employees to engage in concerted, expressive and associational activity relating to representational issues without the interference of employers. (§§ 1140.2, 1152, 1153.) Since the record did not establish a basis for a duty to intervene, Gerawan's deference to its workers' peaceful protest and concerted activity was clearly not an unfair labor practice.
The Board found that Gerawan unlawfully assisted the decertification campaign by virtue of its conduct relating to the workers' October 2 bus trip to Sacramento. In the October 2 bus trip, which took place only two days after the September 30, 2013 work stoppage, about 400 Gerawan workers traveled to the State Capitol, primarily for the purpose of petitioning for redress and/or protesting before the Board at its state headquarters in Sacramento. The Board's finding against Gerawan consisted of two distinct facets: One, that Gerawan was complicit in CFFA's donation of funds to pay the transportation expenses of chartering buses and providing meals in connection with the workers' Sacramento trip, which donation by CFFA was purportedly wrongful
Before proceeding, we provide some additional background facts in order to furnish adequate context to our discussion. Silvia Lopez was on a Fresno talk radio program hosted by Ray Appleton, at which time she made an appeal for financial help so that workers in the decertification movement could go to Sacramento to protest before the Board's main office there. The regional director had recently rejected the workers' first decertification petition, and Silvia Lopez and others believed that by going to Sacramento, to the site of the Board's headquarters, it would help get their message across that the workers really wanted a chance to vote. According to Silvia Lopez, the trip to Sacramento was to have their voices heard and to pressure the Board into allowing an election to go forward. However, there was one obstacle: the workers needed funds for transportation — hence the appeal for help on the radio broadcast. On October 1, 2013, Berry Bedwell (president of CFFA) received a call from one of CFFA's members, Kent Stevens of Sunview Vineyards, who had heard the radio interview. Stevens asked Bedwell if CFFA could help the workers with the expense of getting to Sacramento. Although Bedwell was in Washington, D.C. at that time, he was able to contact by telephone all the members of CFFA's executive committee
As to the logistics, before sunrise on October 2, 2013, at about 5:15 or 5:30 a.m., multiple buses were parked outside one of the company offices on the west side. Hundreds of workers met there and boarded the buses. Office manager Projkovska was awakened by an early morning call alerting her to the presence of buses parked on the street in front of the west side office, but she did not take any action at that time. She testified that she did not learn until later that day that the buses took workers to Sacramento. Dan Gerawan testified he did not learn about what happened until later that morning, when he found out that approximately 400 of his workers went to Sacramento on buses.
In its determination that Gerawan could be held responsible for CFFA's payment of the workers' transportation and food expenses on October 2, 2013, the Board found two facts to be particularly significant. One was the fact that Dan Gerawan and Bedwell had been in regular contact by e-mail or telephone regarding the events of the decertification movement, but they failed to e-mail one another about the October 2 bus trip and protest.
As noted, one part of the Board's finding of unlawful employer assistance was that CFFA's contribution to support the October 2, 2013 bus trip and protest violated section 1155.4(c), and further, that Gerawan was somehow complicit in that unlawful financial contribution.
Gerawan argues that section 1155.4(c) was inapplicable because CFFA's donation was not "for the purpose of" causing the recipients thereof to influence other employees regarding representation or bargaining issues. Rather, it was for the purpose of allowing a group of interested workers to protest before the Board in the state capitol, so that those workers could have their voices heard by the government agency with decisionmaking power over them. In other words, the bus trip subsidized by CFFA was not to influence other employees, but to speak to and influence the government through the employees' exercise of their First Amendment right to petition for redress and peaceably assemble and protest. Gerawan emphasizes that the purpose requirement in section 1155.4(c) may not be disregarded or treated as surplusage.
To summarize, the Board argues that CFFA's conduct was substantially the same as the two employers in Dutra Farms, and urges that we reach the same result. Gerawan responds that the present case is clearly distinguishable because, here, there was evidence of a special or distinctive purpose for the gift that would bring it outside the scope of the statutory prohibition — namely, that the gift was to allow interested workers to go to Sacramento to seek redress, peaceably assemble and protest in order to influence the government, not to influence other employees.
The Board replies that even if a more particularized showing was required to establish the "for the purpose of" requirement of the statute, such purpose could reasonably be inferred here since decertification proponents would likely seek to influence other employees in all of their activities, including during this trip to Sacramento. In that regard, the Board notes that the events occurring in Sacramento on October 2, 2013, included a pro-decertification protest, and it assumes that worker signatures would likely have been gathered for the second petition during the course of the bus trip and protest. The Board also posits that news of what happened that day in Sacramento may have had an impact on other workers who learned about it.
Having framed the section 1155.4(c) issue and stated the parties' respective positions on it, we conclude that it is unnecessary for us to decide whether
First, there is no evidence in the record to reflect that, during the relevant timeframe, Gerawan had any grounds to conclude that a violation of law under section 1155.4 had occurred. What the record as a whole does clearly show is that, when events were unfolding on the morning of October 2, 2013, it became apparent to Gerawan that approximately 400 of its workers went by bus to Sacramento, and it was later confirmed that the workers had chosen to go to Sacramento for the purpose of protesting before the Board and the Governor. Even assuming for the sake of argument that Gerawan may have suspected that CFFA helped pay the transportation expenses for the interested workers to go to Sacramento, there is nothing in the record to suggest that Gerawan would have had any reason to believe CFFA provided such transportation expenses for an unlawful purpose of causing the recipients thereof to exert influence over other employees in regard to their rights to bargain and organize through a representative of their own choosing. (See § 1155.4(c).) Again, the workers clearly had a predetermined plan and purpose to petition the government (the Board or Governor) in Sacramento, and any third party financial assistance that Gerawan may have supposed to exist would reasonably have been viewed accordingly.
In summary, we conclude that the employees' October 2, 2013 bus trip and protest entailed the exercise of concerted activity under the ALRA, as well as the exercise of rights recognized under the First Amendment to peaceably assemble, protest and to petition the government for redress. On the record before us, Gerawan was not required to interfere with, repudiate or punish the employees for doing so, whether or not Gerawan may have learned or suspected that CFFA funded the transportation costs. We conclude that the
Third, the evidence purportedly showing that Gerawan was "complicit" in the financial contribution provided by CFFA (for travel and food) was patently insufficient to give rise to such an inference. As noted, the primary evidence relied on by the Board were the facts that (i) Bedwell and Dan Gerawan did not communicate about the events of October 2, 2013, despite their otherwise regular communications about events relating to decertification, and (ii) one or two days before the October 2 bus trip, Gerawan's office manager, Projkovska, made an inquiry about the availability of buses. These circumstances, if viewed liberally and considered together with Silvia Lopez's talk radio statements, may allow an inference that Gerawan somehow learned, suspected or anticipated that some of its workers would soon be traveling to Sacramento by bus for a protest and that CFFA was potentially the source of the needed transportation assistance for the workers. However, there is no reasonable and nonspeculative foundation in the record for concluding anything of substance beyond that; and certainly nothing to indicate involvement with respect to CFFA's financial gift.
In summary, nothing in the record reasonably shows that Gerawan was in any way involved in or exerted influence over the series of events or decisions leading to CFFA's making of a gift to assist the interested workers regarding transportation costs. We conclude that the Board's finding that
The Board found that the workers' October 2, 2013 bus trip and the third party financial contribution (from CFFA) which enabled it to happen could be attributed to Gerawan under principles set forth in the case of Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307 [172 Cal.Rptr. 720, 625 P.2d 263] (Vista Verde Farms). We disagree.
On the record before us, we find Vista Verde Farms to be distinguishable. The analysis in Vista Verde Farms is expressly predicated upon the existence of improper coercive conduct directed against employees by a third party; but here, the Board failed to show (and the record failed to demonstrate) that
Finally, the present situation is unlike other cases cited by the Board where the NLRB found that a disavowal was necessary. In those cases, a disavowal by the employer was required under the circumstances to correct a material falsehood that otherwise would likely have impacted the employees' freedom of choice. (See, e.g., Richlands Textile, Inc. (1975) 220 NLRB 615, 618 [employer failed to disavow a statement made by a local politician telling employees he had been informed that the plant would close down operations if the workers unionized]; Colonial Corporation of America (1968) 171 NLRB 1553, 1554 [employer did not repudiate or deny a handbill that asserted that
For the reasons explained above, Vista Verde Farms is distinguishable and does not provide a sufficient legal basis for attributing legal responsibility to Gerawan for the donation made by CFFA, a distinct third party. (See, e.g., Superior Farming Co. v. Agricultural Labor Relations Bd. (1984) 151 Cal.App.3d 100, 122-123 [198 Cal.Rptr. 608] [Vista Verde Farms rule must not "be applied mechanically, without regard to circumstances, reasonableness, and fairness"].) There was no substantial evidence in the record to indicate that any workers were coerced or misled by CFFA's donation. Moreover, because of the important conjunction and interplay of free speech and concerted activities in this matter, we hold that Gerawan was not required to prevent, intervene in or repudiate the workers' bus trip and protest, and its failure to do so was not an unfair labor practice.
The Board found that Gerawan was guilty of an unfair labor practice based on its purported solicitation of grievances. The finding was premised on a series of communications made by Gerawan to its employees after the UFW suddenly returned to the scene following a nearly two-decades-long absence. Upon returning, the UFW sought to bargain and soon afterwards, applied for the commencement of the MMC process to the Board. Gerawan sought to apprise its employees of these major developments. The question before us is whether substantial evidence shows that, in doing so, Gerawan's communications crossed the line by making an improper solicitation of grievances.
As summarized previously herein, Gerawan's communications to its employees were primarily through a series of flyers, mailers or paycheck inserts.
Over the next several months, Gerawan sent followup mailers to its employees written in a question-and-answer format. The mailers purported to respond to a few basic questions or misconceptions, but otherwise referred the employees to the ALRB as the appropriate agency to which they may express concerns or ask any further questions, noting that "[e]mployers are prohibited from helping their employees in such matters." A subsequent mailer in April of 2013 informed employees that, pursuant to the most recent negotiations, the UFW is seeking "3%" of their paychecks as dues, and that it (the UFW) would have Gerawan terminate employees who refused to pay any money to the union. This mailer also told the workers, "AS ALWAYS, OUR DOOR IS OPEN," and provided telephone numbers for Ray, Mike or Dan Gerawan, as well as for Jose Erevia, as the human resources manager at Gerawan. On several such flyers, a toll-free number was set forth below Jose Erevia's telephone number, to allow workers to leave anonymous comments. Also, as noted previously, the workers and crew bosses were trained to address any questions about the union to Jose Erevia.
Additionally, hourly pay raises were announced by a series of flyers sent out by Gerawan in March of 2013 (e.g., from $9 to $10 per hour), indicating that the decisions to grant such pay raises were from "Ray, Mike and Dan," and claiming that Gerawan consistently pays higher wages than other companies in the industry. The flyers did not credit the UFW's presence for these pay raises, but expressed that they were solely Gerawan's decision, noting the union was properly informed of the raises and that "we assume they will not cause any unnecessary delay." Jose Erevia was typically listed as the contact person on such flyers. According to the flyers, the pay raises were granted because Gerawan sought to pay its workers more than its competitors did; so to stay ahead of the competition, the raises were announced.
Based on the DVD and prior flyers and mailers, combined with the absence of evidence of any past practice of soliciting grievances, the Board found that Gerawan unlawfully solicited employees' grievances. Gerawan challenges the Board's finding, arguing that all of the subject communications were either permissible statements of opinion protected under Gerawan's free speech rights, the proper communication of information to its employees, or a lawful expression of willingness to listen to grievances without any promise to resolve them.
In finding this solicitation of grievances was unlawful, the Board relied on the fact that Gerawan did not have a past practice of soliciting grievances from its workers. The evidence showed the purported solicitations began as a new course of action starting in November of 2012. Since there was no past practice shown here, the Board applied the rebuttable presumption that Gerawan's solicitations of grievances involved an implied promise to remedy such grievances. That presumption, combined with the general anti-union tone of the flyers, mailers and DVD signaling the employer's opinion that the union was unnecessary to protect the workers' interests, led the Board to conclude that Gerawan had committed the unfair labor practice of solicitation of grievances.
Gerawan contends the Board had no reasonable basis to infer from Gerawan's absence of a past practice of soliciting grievances that the solicitations carried an implied promise to remedy grievances. We agree with the gist of Gerawan's contention, but we think it is more accurate to state that the evidence in the record overcame the rebuttable presumption as a matter of law. Under the unique circumstances of this case, Gerawan's commencement of direct and frequent communications with its employees was clearly reasonable and proper, even assuming Gerawan had not done so in the past. What the Board failed to adequately grasp in its analysis of this issue was the major change of circumstances that arose when, after a nearly two-decade absence, the UFW suddenly reappeared on the scene, claiming to be the workers' rightful bargaining representative, seeking a contract, and ultimately, pursuing MMC. This dramatic shift from the long-term status quo profoundly affected both Gerawan and its workers. Under the circumstances, it was entirely reasonable to expect that the workers would have need of information, clarification, and to have their many questions or concerns answered. Moreover, despite the Board's claim to the contrary, there was substantial
We separately consider the brief remark contained within the 10- or 11-minute DVD sent by Gerawan to its workers shortly before the election. In its findings, the Board agreed with the General Counsel's position that the DVD improperly solicited grievances when it advised Gerawan's workers that "there are many ways for you to let us know about issues without having to wait for the union to come around and hope they will listen." The DVD was not part of the earlier informational exchange (i.e., the flyers and mailers) by which the employer had provided information to its employees and responded to questions following the reemergence of the long-absent union. The DVD came much later, being sent shortly before the election. Nevertheless, in light of the earlier solicitation of questions and informational exchange that occurred in the prior mailers and flyers — which we have concluded was reasonable and proper under the unique circumstances — the statement in the DVD about Gerawan's availability to hear workers' concerns was not something new or out of the ordinary, but was simply one final reiteration of Gerawan's already expressed willingness to listen. Therefore, we conclude that the record does not support the Board's finding that the comment in the DVD constituted an improper solicitation of grievances. An "expressed willingness to listen" and consider issues is not sufficient. (Idaho Falls Consolidated Hospitals, Inc. v. National Labor Relations Bd., supra, 731 F.2d at pp. 1386-1387 [employer's expressed "open door policy," willingness to listen, and attempt to "discern the problems troubling the employees" was not unlawful solicitation].)
In conclusion, the Board erred in finding that Gerawan committed an unfair labor practice based on the solicitation of grievances. As explained above, the
In deciding on the solicitation of grievances issue, the Board made an additional finding that the solicitation evidence established a different unfair labor practice — namely, that of direct dealing. Gerawan challenges the Board's direct dealing finding on the ground that it was not supported by substantial evidence in the record.
Here, the Board appears to have concluded that all of the communications referenced by it in connection with its discussion of the charge of solicitation of grievances constituted direct dealing. That assessment is far too broad. For example, when Gerawan explained to its employees on several occasions that the UFW had returned after a nearly two-decade absence, that statement and related statements were essentially informational in character, providing employees with needed information in response to questions and concerns naturally arising from the extraordinary and unexpected development of a long-absent union returning, demanding a contract and seeking MMC. Clearly, Gerawan's effort to explain and provide information regarding that major change of circumstances was not direct dealing regarding the terms and conditions of employment.
On the other hand, there is substantial evidence to support direct dealing relating to a different communication — namely, the particular flyers or mailers announcing the hourly pay raises in March of 2013. In announcing the pay raises, it was emphasized that "Ray, Mike, and Dan Gerawan have made the decision to give crew labor a raise just as they always have" and "we have informed the UFW union of our plan, and we assume they will not cause any unnecessary delay." Reasonably implicit in this message to its employees was that Gerawan was granting the pay raises entirely on its own, apart from the union, and that it was hoped that the union would not delay or get in the way of what Gerawan alone was doing for them. So understood, this would appear to allow the Board to draw an inference of direct dealing, as defined above.
In conclusion, while the solicitation of grievances allegation was not adequately supported by the record, we affirm the Board's separate finding of an unfair labor practice based on direct dealing. Of course, any assessment by the Board of the impact of such occurrence of direct dealing would have to consider that this incident was isolated and occurred a long time before the election.
On October 25, 2013, Mike Gerawan ordered a one-day increase in the piece rate for grape-packing workers from $1.25 per box to $1.50 per box.
The ALJ substantially credited Mike Gerawan's testimony. The ALJ found: "Some of the workers left in the middle of the day on October 25, 2013, to participate in a protest timed to announce the filing of the second decertification petition. This may have resulted in the need for workers to stay later that evening to finish packing the grapes. There was credible testimony that the grapes need to be packed quickly to be marketable." The ALJ further found that "Mike Gerawan was credible in testifying that the piece-rate was sometimes changed due to the quality of the grapes."
Nonetheless, the ALJ found that the piece-rate increase created an unfair labor practice. Although Mike Gerawan's testimony was credited on a number of points, his explanation for the piece-rate increase was deemed insufficient to provide an adequate justification under the circumstances. Specifically, the ALJ found that the predominant reason for the piece-rate increase was not to adjust to perceived changes in the condition or quality of the grapes, but to reward and encourage employees who worked late. Thus, the increase appeared to be unlike Gerawan's past practices. Moreover, since the piece-rate increase came on the same day the second decertification petition was filed, and it applied to workers who stayed as well as to workers who subsequently returned from the protest, the ALJ found that the "well-timed" piece-rate increase and the free pizza and tacos "likely created a celebratory atmosphere that workers would have unmistakably attributed to
Although the explanation offered by Mike Gerawan for the piece-rate increase appears reasonable, the Board was not required as a matter of law to conclude that it adequately justified the piece-rate increase. Other factors were present which, in combination with the proximity to the anticipated election, permitted an inference of improper motive. One such factor was that the increase did not appear to fit into the normative status quo as reflected by past practices, or at least there was an absence of specific facts to show that it did. (See, e.g., National Labor Relations Bd. v. Anchorage Times Pub. Co., supra, 637 F.2d at p. 1367 [change from status quo can be indicator of improper motive]; National Labor Relations Bd. v. Styletek, Division of Pandel-Bradford, Inc. (1st Cir. 1975) 520 F.2d 275, 281, fn. 5 [it is "perilous" for an employer to grant benefits before an election "unless the employer can support with very specific facts the reason for granting benefits just then," such as "a past history" of wage adjustments on a particular date or occasion]; cf. Jimmy Dean Meat Co. (1977) 227 NLRB 1012, 1034 [demonstrated consistency of pay raise with past policy and practice showed it was not for improper purpose].) Here, Mike Gerawan testified that "from time to time" he would change the piece rate "depending on the quality of the grapes [or] the time of year," explaining that "[l]ater in the year we get sweating on the grapes and there's delays in packing until the grapes dry. So, it varies with conditions." He did not mention extended work hours or the need to encourage and reward packers who were working late as a past rationale for
An additional factor relied on by the Board was that the increase coincided with the day on which the second decertification petition was filed. We note that this factor was of somewhat limited evidentiary value because it tended to cut both ways. While the Board emphasized that the increase took place on the precise day the petition was filed, we cannot overlook the other side of the same coin — namely, that it was also the day that a considerable number of grape packers walked off the job, the timing of which was entirely outside of Gerawan's control. Still, in light of the fact that Gerawan reacted to events by implementing a seemingly out-of-the-ordinary pay increase, we believe it was reasonable for the Board to consider the coincidence of the increase with the date of the petition, especially when viewed in combination with the other factors.
However, in affirming the ALJ on this matter, the Board went on to find that the effect of the coincidental timing (plus the food) led to a celebratory atmosphere that workers would have attributed to the company's joy over the petition being filed. The Board's gratuitous surmise as to the workers' reaction to the one-day increase to finish packing the grapes was not supported by any evidence in the record; thus, it was mere speculation on the Board's part which will be disregarded.
On the broader issue of whether a violation occurred, we conclude the Board's decision was within the bounds of reason, supported by permissible inferences drawn from the record, when it found that an improper motive was present upon which to premise a finding of an unfair labor practice against Gerawan for granting its grape packers a one-day piece-rate increase. As noted, the supporting evidence consisted of the increase's proximity to the anticipated election, the apparent departure from past practices, and the coincidence of the increase with the filing of the second decertification petition. This is an instance where, had we been the trier of fact, we would likely have reached a different result. Nevertheless, we defer to the Board because, on this record, the finding of a violation was at least marginally sustainable.
In defense of its actions, Gerawan further argues that the completion of the grape packing that night was in the nature of a pressing business exigency that required immediate unilateral action, including a rate increase. (See
Based on the foregoing, we conclude there was substantial evidence to support the Board's conclusion that the piece-rate increase prior to the election constituted an unfair labor practice. With certain qualifications noted below, we affirm the Board's determination of that issue.
In regard to the probable impact of this violation on the workers' freedom of choice, Gerawan contends that even if there was a violation, what occurred here was materially distinguishable from the usual or hallmark violation where an across-the-board pay increase is given prior to an election. We agree with Gerawan's contention. Here, we are dealing with a very brief (i.e., one day only), relatively modest (i.e., 25 cents per box) increase in the piece rate for a subset of workers (i.e., grape packers) under circumstances in which there was an apparent need to get a considerable volume of grapes packed with fewer workers on hand. Because of these unique circumstances, it was unreasonable and arbitrary for the Board to mechanistically (or per se) presume that the workers were coerced or lost their freedom of choice due to the one-day piece-rate increase.
In passing, we note that the Board's conclusory finding of coercion regarding this unfair labor practice suffered from another fundamental flaw. Conceptually, the Board has treated this case as essentially a challenge to the petition for decertification, with Gerawan's unfair labor practice violations purportedly resulting in an invalidating "taint" on that petition. The problem with the Board's theory as it relates to this particular violation is that the October 25th piece-rate increase happened after the signature gathering was completed and the petition was being delivered for filing, and therefore as a matter of elementary logic and causation, the increase could not possibly have had any effect — coercive or otherwise — on the workers' signature gathering process.
In summary, then, we affirm the Board's finding of an unfair labor practice based on the pre-election piece-rate increase, but reverse the Board's conclusory holding and/or presumption that it had a coercive impact on the employees' freedom of choice.
As discussed at length above, we have found that the Board erred in several of its unfair labor practice findings. Since the Board premised its election remedies (i.e., dismissal of the election) upon the unfair labor practice findings, it is necessary to remand the matter back to the Board to reconsider its remedial rulings under the corrected findings. More than that, it appears to us that the Board applied an erroneous legal standard when it set aside the election. However, before we delve into the Board's legal error in
Under the Board's decision in Gerawan Farming, Inc., supra, 42 ALRB No. 1, as we view it, the primary remedy (or remedies) imposed by the Board for Gerawan's pre-election unfair labor practices was the dismissal of the decertification petition and the setting aside of the election.
Nevertheless, "the general statutory insulation from direct judicial review of board decisions other than final orders in unfair labor practice proceedings is not impermeable. Under both federal and California law, courts may exercise their equitable powers to review board determinations in exceptional circumstances." (Yamada Brothers v. Agricultural Labor Relations Bd., supra, 99 Cal.App.3d at p. 121.) For example, judicial review of nonfinal orders of the Board has been allowed by writ of mandate where there was a clear statutory violation by the Board resulting in a deprivation of a right guaranteed by the ALRA and the ordinary legal remedy was inadequate. (See, e.g., Cadiz v. Agricultural Labor Relations Bd. (1979) 92 Cal.App.3d 365, 380-382 [155 Cal.Rptr. 213]; Agricultural Labor Relations Bd. v. Superior Court, supra, 48 Cal.App.4th 1489, 1502-1503; see also Belridge Farms v.
Here, we need not consider whether this case comes within an exception to the rule limiting review to final orders of the Board under section 1160.8 because, as explained below, we conclude that Gerawan Farming, Inc., supra, 42 ALRB No. 1 is such a final order, including the election-related remedies. For this reason, Gerawan was not required to engage in a technical refusal to bargain as a precondition to our judicial review of such remedies. Rather, in this unique case, review of the entire order was available under section 1160.8. We so conclude in light of the combination of the following material considerations: (i) the Board has foreclosed any adequate remedy via the technical refusal to bargain process by failing to count the ballots; (ii) the Board's decision and order in Gerawan Farming, Inc., supra, 42 ALRB No. 1 may reasonably be construed by this court as one indivisible final order under section 1160.8 because the election-related remedies ordered by the Board therein were predicated upon and inextricably intertwined with the unfair labor practice holdings in the consolidated proceedings below; and (iii) the ultimate remedy granted by the Board in this case of setting aside a decertification election did not, under the circumstances, implicate the policy rationale for precluding direct review. We now proceed to discuss these reasons for our conclusion in greater detail.
Here, rather than counting the ballots and issuing a tally, the Board has opted to leave the parties (and the public) completely in the dark regarding that information.
Second, the election-related remedies in this consolidated case were specifically premised upon and arose out of the unfair labor practice findings such that the election-related remedies may reasonably be construed as an integral part of the one final order under section 1160.8. This fact, and why it is important, requires some elaboration.
Here, not only were the unfair labor practice proceedings consolidated with the election objections, but the Board's election-related decisions in Gerawan Farming, Inc., supra, 42 ALRB No. 1 were specifically grounded upon, and constituted a remedy directed for, Gerawan's unfair labor practices. The amended consolidated complaint filed by the General Counsel expressly sought, as specific relief for the asserted unfair labor practices described therein, the dismissal of the petition for decertification and destruction of the ballots.
Thus, although formally the case included proceedings under section 1156.3 (i.e., the UFW's election objections) alongside the unfair labor practice
The above observations bear upon our interpretation of the nature and effect of the final order in Gerawan Farming, Inc., supra, 42 ALRB No. 1. In particular, because the crucial issues were inextricably intertwined in the manner we have described, the Board's blanket assumption that the electionrelated remedies must automatically be treated as severable and distinct from the unfair labor practice determinations is highly questionable. In fact, Gerawan Farming, Inc., supra, 42 ALRB No. 1 is reasonably susceptible to being construed as a single, unitary, final order in all of its parts.
Third, although the two factors enumerated above were, in combination, dispositive of this issue, we note as an additional factor that the legislative rationale for postponing judicial review until there has been a technical refusal to bargain is not implicated here. The Board's election-related relief of dismissing the decertification petition and setting aside the decertification election did not result in any change to the long-standing representational status quo. Instead, the historically certified union (UFW) remained in place, exactly as before, with the same authority continuing unabated to bargain on behalf of the workers, file unfair labor practice charges based on the employer's alleged failure to recognize or negotiate with the union, and file MMC requests. Thus, permitting direct review in this case would not postpone an election, delay the union's representative status or recognition, or otherwise undermine the worker's choice of representative through delay or attrition. As a result, the main concerns behind the technical refusal to bargain rule are not even remotely at stake. (See Boire v. Greyhound Corp., supra, 376 U.S. at pp. 478-479; Associated Gen. Contractors, Etc. v. National Labor Relations Bd. (9th Cir. 1977) 564 F.2d 271, 276-277.) Furthermore, in light of the fact that Gerawan Farming, Inc., supra, 42 ALRB No. 1 did not make any change in representation based on the results of an election, but left everything the same as it was before (by setting aside the decertification election), it defies common sense to insist that Gerawan first be ordered "`to do something predicated upon the results of the election'" (Boire v. Greyhound Corp., supra, 376 U.S. at p. 479, italics added) as a prerequisite to judicial review.
In any event, the cases cited above are distinguishable on the additional ground that they involved orders not only setting aside a first election but also directing a second curative election take place. Obviously, where a subsequent election is ordered or pending, further representational proceedings are still to come. An order of that type would necessarily be interlocutory, not final, and a second curative election would have a potential to alter the representational status quo making a challenge to the first election premature. Unsurprisingly, the above-referenced cases found there was no final order and that judicial review would only be available after the second election and a technical refusal to bargain. (National Labor Relations Bd. v. Great Western Coca-Cola Bottling Co., supra, 740 F.2d at pp. 401-402, 405-406; Raley's, Inc. v. National Labor Relations Bd., supra, 725 F.2d at p. 1206; Daniel Construction Co. v. National Labor Relations Bd., supra, 341 F.2d at pp. 808-809.) Here, in contrast, the Board's order did not contemplate any further representational proceedings. The Board did not direct a curative or "do-over" election. Rather, the decertification petition was dismissed and the election set aside by the Board, period. Moreover, since under the unusual combination of circumstances discussed above, those remedies were not severable from the unfair labor practice findings and relief in this case, but were an integral part thereof, said remedies constituted a part of the reviewable final order under section 1160.8.
For all the reasons set forth above, we conclude that the election-related remedies may be reviewed in the context of the instant petition for review. At this point in our discussion, we proceed to our consideration of the legal standard applied by the Board in dismissing the election.
Although these rules favoring elections and creating a heavy burden to successfully challenge them were initially articulated by the Board in the context of union elections, the same standard applies to decertification elections: "[I]t is the free choice of employees, not the union's survival, that is at issue .... We shall thus adhere to the same standard in decertification elections as applies to representation elections." (Jack or Marion Radovich (1983) 9 ALRB No. 45, p. 10.)
The Board's established standard for evaluating whether to set aside an election based on misconduct, as discussed in the preceding paragraphs, is commonly known as the "outcome-determinative" test, in contrast to the NLRB's "laboratory conditions" standard. (Mann Packing Co., Inc., supra, 16 ALRB No. 15, pp. 4-5; T. Ito & Sons Farms (1985) 11 ALRB No. 36, pp. 9-10; see Triple E Produce Corp. v. Agricultural Labor Relations Bd. (1983) 35 Cal.3d 42, 48 [196 Cal.Rptr. 518, 671 P.2d 1260] (Triple E Produce).) Generally, under the outcome-determinative test, misconduct is tested and evaluated under an objective standard of its reasonable impact on workers' free choice in light of all the facts and circumstances, rather than by making endless inquiries into the subjective motivations of particular employees. (Oceanview Produce Co., supra, 20 ALRB No. 16, p. 6 ["the test is whether the conduct, when measured by an objective standard, was such that it reasonably would tend to interfere with employee free choice"]; L.E. Cooke Co. (2009) 35 ALRB No. 1, p. 13.) At the same time, the Board and the courts have recognized that one of the circumstances ordinarily relevant or helpful to a fair determination of whether particular conduct may have reasonably interfered with employee free choice in an election is the margin of the outcome reflected in the vote tally. (See, e.g., Mann Packing Co., Inc., supra, 16 ALRB No. 15, p. 4 ["We may also consider, as an additional factor, the nature and extent of the alleged misconduct in light of the margin of victory"]; J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 22 [in holding that conduct by UFW near the balloting place did not potentially interfere with employees' free choice, the Supreme Court stated "[m]oreover, the election results were not close"]; Bud Antle, Inc. (1977) 3 ALRB No. 7, p. 3 ["Based on our review of the entire record and the facts established therein, we find that the UFW has failed to show either
More recently, beginning with Gallo, supra, 30 ALRB No. 2, the Board expanded the parameters of what would "taint" the petition enough to allow the Board to set aside an election. In that case, the Board held that if there was "significant" assistance by the employer in the signature gathering process, the Board could declare the petition itself void, and throw out the decertification election without applying the standard of review applicable to election challenges.
In the present case, were Gallo a correct statement of the law, the Board could properly set aside the decertification election by Gerawan's workers on the theory of an invalidating taint on the petition, as long as the Board found there was at least "significant" employer assistance or involvement in the decertification petitioning process. Moreover, if Gallo is correct, the Board could do so without ever evaluating the impact of Gerawan's purported misconduct on the workers' free choice in the election itself to determine whether such misconduct would have made any difference in the result. In substance and in practical effect, that is precisely what the Board did in this case because the Board applied a taint on the petition approach and set aside the election based on misconduct that did not involve instigation or egregious wrongdoing, and the Board did so without evaluating the impact of the misconduct on the election.
Despite the minimal legal significance of the showing of interest and despite the fact that it is the workers' only available avenue to seek an election, the Board in Gallo placed exacting requirements on it, requiring something akin to laboratory conditions — that is, if any employer interference occurred it must have been less than significant or else the employees' petition would be subsequently dismissed and the election thrown out. As the dissent in D'Arrigo aptly put it: "In Gallo, the Board held that in evaluating the effect of employer assistance on the validity of a decertification petition, `significant' assistance would render the petition void, without regard to whether the number of directly affected employees was sufficient to negate the requisite showing of interest. Thus, a more stringent standard was applied to the sufficiency of the showing of interest, a non-reviewable administrative matter, than the outcome-determinative standard applied to conduct affecting free choice in the election itself. This is both unsupported by any authority and fundamentally illogical. All other types of employer misconduct potentially affecting free choice in a decertification election, including the most serious types such as threats or promises of benefits, remain subject to an outcome-determinative standard. The carving out of a stricter standard for conduct affecting a non-reviewable administrative matter simply makes no sense." (D'Arrigo, supra, 39 ALRB No. 4, pp. 37-38, fn. omitted.) Not only does that not make sense, but it places an onerous burden on employees seeking to obtain a decertification election (who have no control over the employer's missteps) and improperly downplays the importance of secret ballot elections under the ALRA. As was rightly stated by the Board in one of its older cases, once an election has taken place the focus of review should be on the election itself, not the showing of interest: "The Board's refusal to review the validity of the showing of interest after an election has been held is in accord with the practice of the National Labor Relations Board, and is
As was pointed out by Boardmember Mason in his concurring and dissenting opinion in D'Arrigo, supra, 39 ALRB No. 4, pages 42-43, when the Board sets aside an election under the low-threshold Gallo standard (i.e., significant employer assistance creating a taint on the petition), it tends to undermine the fundamental principle of employee choice by unnecessarily disenfranchising employees: "This is because under the Gallo standard a decertification election will be set aside even where there is a distinct possibility that the assistance had no effect on the validity of the showing of interest, let alone any significant effect on free choice in the election itself. Such an approach thus runs the risk of penalizing the genuine supporters of
Boardmember Mason's dissent in D'Arrigo further noted that this rule would not insulate employers from wrongful conduct: "Restricting the remedy of voiding the petition to those instances where it is found that the entire process was infected, either by instigation or pervasive assistance, ... does not insulate an employer from sanction for lesser misconduct. The Regional Director, if aware of the conduct when investigating the decertification petition, has the authority to disregard tainted signatures in determining whether the petitioner has met the requisite showing of interest. More importantly, since employer assistance may affect free choice in the election itself, there is a significant risk that employer assistance could be the basis for setting aside the election under the proper outcome-determinative standard applied to election misconduct. This approach simply acknowledges the relative importance of the showing of interest and properly places the emphasis on the free choice in the election itself." (D'Arrigo, supra, 39 ALRB No. 4 at p. 43.) Finally, the dissent urged that Gallo be overruled by the Board "as wrongly decided," and then it concluded: "Without reliance on Gallo, the record in the present case does not support invalidating the decertification petition. Applying the proper analysis, I would order that the ballots be counted and, in light of the tally of ballots, the effect of the unlawful assistance in the four crews on free choice in the election be evaluated under the established outcome-determinative standard." (D'Arrigo, supra, at pp. 43-44.)
As should be clear from the entirety of our discussion, we believe that Boardmember Mason's dissent in D'Arrigo, supra, 39 ALRB No. 4 more adequately vindicates (and complies with) the core policies of the ALRA than does the one-sided Gallo approach, because it seeks to preserve and balance both of the fundamental statutory policies of (i) preserving the workers' right to choose through secret ballot elections and (ii) the need to punish employers, and it does so without unnecessarily disenfranchising workers. For all the
In the present case, the incidents of employer assistance and other misconduct committed by Gerawan (i.e., those incidents we have affirmed, whether considered individually or cumulatively) were not sufficiently egregious or pervasive to reasonably permit the Board to declare the entire petition void as a peremptory means of setting aside the election. There was no instigation, and no occurrence of violence, threats, reprisals, or overt intimidation. As the ALJ conceded and the Board affirmed, Silvia Lopez and other proponents of decertification were not the agents of Gerawan in regard to the decertification effort (i.e., it was truly a worker-initiated and worker-led movement), they were not paid any money or compensation by Gerawan except ordinary wages earned for labor actually performed in the fields, and finally, Lopez's attorney was not paid for or selected by Gerawan.
Although there were incidents of worktime signature gathering by pro-decertification workers in several crews, the record considered as a whole did not adequately support a finding of disparate or discriminatory treatment as to worktime signature gathering. The one instance of direct supervisor assistance (i.e., crew boss Nuñez letting a counter or checker speak briefly to assembled crew and pass out petition) did not involve any verbal support, it was doubtful he remained present, and it appears to have been an isolated event. Further, while we have affirmed the finding as to the attendance flexibility shown to Silvia Lopez and her daughter, the violation that was found to exist under such circumstances did not constitute egregious or inherently coercive conduct and, at most, was merely one factor among many to be carefully evaluated.
The other sporadic incidents for which employer violations have been found plainly did not rise to the level or character of employer interference in the decertification process to permit the Board to pronounce the entire worker petition void. Although the Board ended its decision in Gerawan Farming, Inc., supra, 42 ALRB No. 1 with a conclusory statement that Gerawan's conduct "tainted the entire decertification process" (Gerawan Farming, Inc., at p. 69) that broad assertion was devoid of factual support or reasoned explanation based on the record. In short, this case did not involve the egregious nature or widespread extent of unlawful employer assistance necessary to permit the Board to declare the petition void or invalid under the taint-on-the-petition approach. Nor does the Board's Gallo decision, which held that mere "significant" employer assistance may be sufficient to create an invalidating taint (see Gallo, supra, 30 ALRB No. 2, pp. 16-17), salvage
Therefore, and in accordance with the foregoing discussion, we hold that the Board applied the wrong standard in this case. Instead of the taint-on-the-petition approach, the Board should have evaluated the purported misconduct under the established outcome-determinative standard for considering whether to set aside the election, which standard would require the Board to focus its scrutiny on whether the misconduct tended to interfere with employee free choice to such an extent that it affected the results of the election.
Unfortunately, the Board was apparently so zealous to punish this employer, it lost sight of the importance of the election itself under the ALRA, and embraced a one-sided approach to the issues that unnecessarily disenfranchised the workers without any meaningful consideration of whether the employer's conduct reasonably impacted the worker's freedom of choice in the election. Under the fundamental statutory policies of the ALRA, that one-sided approach cannot be countenanced, a least not on the facts of this case. (See Perry Farms, Inc. v. Agricultural Labor Relations Bd., supra, 86 Cal.App.3d at p. 474 ["To ignore the disenfranchisement which may have occurred in this case in order to proceed with the imposition of sanctions upon an employer is unconscionable"]; see also J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at pp. 29, 37, 40 [the Board's blanket approach to application of make-whole remedy violated statutory language and eviscerated important policies of ALRA].)
Nor was this an instance where we must yield to the Board's interpretation or application of the ALRA. Of course, as the agency entrusted with the enforcement of the ALRA, the Board's interpretation of the ALRA is "entitled to deference" and we must accord it "`significant weight and respect.'" (Gerawan Farming Inc. v. Agricultural Labor Relations Bd., supra, 3 Cal.5th at p. 1155.) Nevertheless, when the Board's declared interpretations or legal standards "`alter or amend the statute or enlarge or impair its scope,'" courts have a duty to correct the Board's error. (J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 29, italics added.) Thus, in J. R. Norton Co., a legal standard adopted by the Board was rejected by our Supreme Court because the standard was clearly erroneous or unreasonable in light of statutory language and an unacceptable conflict with important policies of the ALRA. (J. R. Norton Co., at pp. 29-38; see also Nish Noroian Farms v. Agricultural Labor Relations Bd., supra, 35 Cal.3d at p. 745 [Board's use of general formula for backpay determination affirmed since not "patently unreasonable" under the statute]; cf. Gerawan Farming Inc. v. Agricultural Labor Relations Bd., supra, 3 Cal. 5th at p. 1155 [emphasizing that administrative interpretation of a statute will be followed if not clearly erroneous].)
In J. R. Norton Co., the Board's use of a per se or blanket standard for granting make-whole relief was rejected by the Supreme Court because it "eviscerate[d] important ALRA policy and fundamentally misconstrue[d] the nature of and legislative purpose behind such relief." (J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 29.) Not only did the Board's standard in that case misread statutory language of section 1160.3 in regard to the evaluative analysis required for make-whole relief, but the blanket approach used by the Board violated the important ALRA policy to protect the integrity of elections against arbitrary administrative action. (J. R. Norton Co. at pp. 29-38.) After first emphasizing that the "principal purpose" of the ALRA was to enable agricultural workers to elect representatives "`of their own choosing'" (J. R. Norton Co., at p. 30, italics in original), the Supreme Court explained as follows: "Although it is inconsistent with both the NLRA and ALRA to foster the delays that result from judicial review of frivolous election challenges, the policies of neither act support the application of a blanket rule for the imposition of make-whole relief. Such a rule places burdensome restraints on those who legitimately seek judicial resolution of close cases in which a potentially meritorious claim could be made that the NLRB or ALRB abused its discretion. It thereby impairs the important interest served by the provision in both acts for a check on arbitrary administrative action." (Id. at pp. 32-33.) The Supreme Court
Here, consistent with the analysis in J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d 1, we have found the Board's legal standard to be deficient on both statutory and fundamental policy grounds under the ALRA. To summarize, the Board's Gallo "taint" standard fails to preserve the fundamental ALRA policy to protect employees' right to choose, since it causes the Board to set aside elections and effectively disenfranchise the voting workers whenever an employer's assistance or other misconduct is deemed significant, without ever considering whether the conduct in question actually interfered with employee free choice in the election itself or had any material bearing on the outcome. That approach would also unreasonably marginalize section 1156.3, subdivision (e)(2), which authorizes elections to be set aside based on misconduct if it is found that such misconduct "affect[ed] the results of the election." Additionally, as was noted in our discussion herein of Boardmember Mason's dissent in D'Arrigo, supra, 39 ALRB No. 4, the Board's standard in Gallo inevitably creates a substantially greater burden on employees seeking an election than the ALRA itself requires, since it would require something akin to laboratory conditions regarding the showing of interest by unreasonably requiring employees to bear the brunt of the punishment when an employer's missteps were "significant" but did not actually interfere with free choice in the election or affect its outcome. As we have also observed, the Gallo standard runs counter to long-standing ALRB precedent, which, in keeping with the strong ALRA policy favoring elections, generally applied the outcome-determinative test to election challenges premised on misconduct.
Finally, as we have pointed out, the alternative that would best avoid or minimize the deficiencies of the Board's approach, while vindicating and preserving the important ALRA policies discussed above, would be to apply the well-established outcome-determinative standard in cases such as this one, while restricting the use of the "taint-on-the-petition" approach (as a method of causing election dismissals) to instances of egregious and pervasive wrongdoing. Here, since we have held on the record before us that there was no egregious or pervasive employer wrongdoing, the conclusion follows that the Board applied the wrong legal standard.
As should be evident from the preceding summary, our correction herein of the Board's erroneous legal standard has been closely tethered to fundamental
On remand, then, the Board must apply the established standard for reviewing whether misconduct has prejudicially interfered with employee free choice in an election — namely, the outcome-determinative standard. This means the Board must consider all the relevant facts and circumstances and fairly determine, based on the record, whether the misconduct committed by Gerawan (under the corrected findings) tended to interfere with the employees' free choice to such an extent that it affected the results of the election.
For purposes of remand, it is also appropriate to provide direction to the Board on questions of law likely to recur. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., supra, 111 Cal.App.3d at p. 277.) Because the Board will be determining on remand whether employer misconduct reasonably affected the results of the election, the Board should consider all the relevant information concerning that issue. In this case, common sense, fairness and sound ALRA precedent dictate that the Board's consideration of all relevant factors should include the vote tally. (See, e.g., Mann Packing Co., Inc., supra, 16 ALRB No. 15, p. 4 ["We may also consider, as an additional factor, the nature and extent of the alleged misconduct in light of the margin of victory"]; J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 22 [as confirmation that conduct by UFW near the balloting place did not potentially interfere with employees' free choice, the Supreme Court observed "[m]oreover, the election results were not close"]; Bud Antle, Inc., supra, 3 ALRB No. 7, p. 3 [concluding based on review of the entire record and the facts established therein that the party challenging election failed to show that "particular events or a cumulation of events ... affected the outcome of this election in which a high turnout of voters chose a representative by a 600 vote margin."].) Accordingly, and since no impediment exists to completing the statutory election process by issuing a tally (see Cal. Code Regs., tit. 8, § 20360, subd. (c) [if ballots were initially impounded, "the election will not be deemed complete until a ballot count has been conducted ...."]), we instruct the Board to open the ballots and issue a tally, so that all relevant factors will be in view when it reconsiders the election decision on remand. (See also Cal. Code Regs., tit. 8, §§ 20363, subd. (d), 20365, subd. (c) [election objection proceedings are to include tally of ballots]; cf. Cal. Code Regs., tit. 8, § 20360, subd. (a) [as soon as possible after completion of balloting, a Board agent "shall count the ballots and shall prepare both a tally ...."].)
A secret ballot election under the ALRA is intended to embody and reflect the workers' fundamental right to choose concerning a question of representation. That right is at the heart of what the ALRA is designed to protect and promote. (J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 30 [it is the "principal purpose" of the ALRA].) The sustainability of the election held by Gerawan's workers, which in this case will depend upon careful evaluation by the Board of whether Gerawan's misconduct
The Board's order dismissing the decertification petition and setting aside the election is vacated. The matter is remanded to the Board to reconsider its decision regarding the election in a manner consistent with this opinion, with such reconsideration to be based on the corrected findings and legal standard set forth herein, and to include a fair and reasonable consideration of the ballot tally. Each party shall bear their own costs.
Hill, P. J., and Detjen, J., concurred.
