Harry Carian Sales v. Agricultural Labor Relations Bd.
| Decision Date | 25 January 1984 |
| Docket Number | AFL-CI,R |
| Citation | 198 Cal.Rptr. 658,151 Cal.App.3d 197 |
| Parties | HARRY CARIAN SALES, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest. Civ. 25169. |
| Court | California Court of Appeals Court of Appeals |
Petitioner Carian Sales, an employer subject to the provisions of the Agricultural Labor Relations Act (Act), challenges the propriety of a final decision and order issued by the Agricultural Labor Relations Board (Board) in Harry Carian Sales (1980) 6 A.L.R.B. No. 55. Petitioner specifically contends that the Board erred in (1) finding that it had committed 18 unfair labor practices in violation of Labor Code section 1153, subdivisions (a) and (c), 1 and (2) issuing a bargaining order in favor of United Farm Workers of America (UFW) as a form of remedial relief.
Petitioner is a table grape producer operating in the Coachella Valley. In January of 1977, the UFW initiated an organizational campaign among petitioner's employees. Approximately two months later the union filed charges with the Board, alleging that petitioner had engaged in unfair labor practices. These charges were heard in the spring of 1977 by an administrative law judge (ALJ-1). 2 Thereafter, on June 20, 1977, the UFW filed a certification petition, and a representation election was conducted among petitioner's agricultural employees. The union lost the election and filed objections which were consolidated with additional unfair labor practice charges and heard by a second administrative law judge (ALJ-2) in the spring of 1978.
In September of 1977, ALJ-1 rendered a decision (ALJD-1) wherein petitioner was found to have committed a number of the initial unfair labor practices alleged. In December of 1978, ALJ-2 set aside the election after determining that petitioner had committed a number of the additional unfair labor practices alleged (ALJD-2). He also characterized petitioner's conduct as sufficiently eggregious to preclude a fair election re-run and recommended that the Board order petitioner to bargain with the UFW.
On October 3, 1980, the Board issued a decision affirming and modifying in part the ALJ's unfair labor practice findings. The Board also ordered the election set aside and directed that the UFW be certified as the exclusive representative of petitioner's employees for the purpose of collective bargaining. This appeal followed.
Inasmuch as each unfair labor practice challenged by petitioner involves findings of fact, contrary findings by the ALJ and the Board, and/or credibility resolutions, we discuss the law pertaining to scope of review at the outset.
With respect to factual findings, the standard is whether the Board's findings are supported by "substantial evidence" on the record as a whole. (§ 1160.8; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346, 156 Cal.Rptr. 1, 595 P.2d 579.) The language in section 1160.8 prescribing the standard of review was taken verbatim from a corresponding section of the National Labor Relations Act (29 U.S.C., § 160(f)), and federal decisions under the federal statute are of precedential value in determining the parameters of this as well as other standards.
The leading federal decision discussing the "substantial evidence" standard of review is Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Therein, the court concluded that more responsibility for the reasonableness and fairness of Labor Board decisions must be assumed than in the past. (Id., at p. 490, 71 S.Ct. at 465; emphasis supplied.)
The standard applicable when the ALJ and the Board make contrary findings was also addressed in Universal Camera. According to the court:
(Id., at p. 496, 71 S.Ct. at 468; emphasis supplied.)
In response to Universal Camera, federal courts have concluded that "the ... supporting evidence, in cases where [the Board] rejects the examiner's findings, must be stronger than would be required in cases where the findings are accepted, since in the former cases the supporting evidence must be deemed substantial when measured against the examiner's contrary findings as well as the opposing evidence." (N.L.R.B. v. Interboro Contractors, Inc. (2d Cir.1967) 388 F.2d 495, 499; see also Penasquitos Village, Inc. v. N.L.R.B. (9th Cir.1977) 565 F.2d 1074, 1078.)
California courts have had occasion to review this standard. In Abatti Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 107 Cal.App.3d 317, 336, 165 Cal.Rptr. 887, Staniforth, J. concurring noted that " " (Quoting N.L.R.B. v. Pacific Grinding Wheel Co., Inc. (9th Cir.1978) 572 F.2d 1343, 1347; emphasis supplied.)
Finally, with respect to credibility resolutions, we are required to accept the Board's conclusion unless the testimony is "incredible or inherently improbable." (Montebello Rose Co., Inc. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 20, 173 Cal.Rptr. 856.)
Bearing these principles in mind, we now consider the propriety of each unfair labor practice challenged.
On March 15, 1977, petitioner began distributing "information cards" which requested that employees disclose their name, address, and social security number. At the bottom of each card was a typewritten statement which read: "I DO WANT [ ]" "I DO NOT WANT [ ]" "... the information contained on/in this card to remain confidential." This was followed by a space for the date and employee's signature. Although the cards were printed in both English and Spanish, no explanation for the confidentiality clause was provided. As a result, many employees refused to sign believing that it constituted an attempt to ascertain their union sentiments. Owner, Harry Carian, testified that he had inserted the new clause based on employee request.
The ALJ determined that these cards, although innocuous on their face, constituted unlawful interrogation in violation of section 1153, subdivision (a). The Board affirmed this finding.
Interrogation not itself threatening does not constitute an unfair labor practice unless it is coercive in light of all the surrounding circumstances. (N.L.R.B. v. Monroe Tube Co., Inc. (2d Cir.1976) 545 F.2d 1320, 1328.) A showing of actual coercion is not required so long as an employer's conduct may reasonably be said to interfere with the free exercise of employee rights. (Pandol & Sons v. Agricultural Labor Relations Bd. (1979) 98 Cal.App.3d 580, 586, 159 Cal.Rptr. 584.) Actual coercion or intimidation is, however, an important factor to consider because its presence tends to indicate that the challenged conduct did reasonably tend to coerce. (See N.L.R.B. v. Monroe Tube Co., Inc., supra, 545 F.2d 1320, 1328; Sahara-Tahoe Corp. v. N.L.R.B. (9th Cir.1976) 533 F.2d 1125, 1126.)
In this instance, petitioner's use of an unexplained confidentiality clause intimidated workers to such an extent that many refused to sign. This evidence of actual coercion, coupled with the fact that petitioner had no right to indicate to workers it could lawfully keep their names and addresses confidential, 3 leads us to conclude that the cards reasonably tended to interfere with the free exercise of section 1152 rights. Accordingly, the Board's finding is affirmed.
On March 28, 1977, employee Vitaliano Mayo and 43 members of his ...
To continue reading
Request your trial