Abatti Farms, Inc. v. Agricultural Labor Relations Bd., AFL-CI

• Court: California Court of Appeals
• Citation: 165 Cal.Rptr. 887,107 Cal.App.3d 317
• Decision Date: 24 June 1980
• Docket Number: AFL-CI,R
• Parties: ABATTI FARMS, INC., and Abatti Produce, Inc., Petitioners, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, UNITED FARM WORKERS of AMERICA,eal Party in Interest. Civ. 18961.

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165 Cal.Rptr. 887 107 Cal.App.3d 317 ABATTI FARMS, INC., and Abatti Produce, Inc., Petitioners,
v.
AGRICULTURAL LABOR RELATIONS BOARD, Respondent,
UNITED FARM WORKERS of AMERICA, AFL-CIO, Real Party in Interest. Civ. 18961. Court of Appeal, Fourth District, Division 1, California. June 24, 1980.
Hearing Denied August 27, 1980.

[107 Cal.App.3d 320]

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Byrd, Sturdevant, Nassif & Pinney, Michael E. Merrill and Scott A. Wilson, San Diego, for petitioners.

Marvin J. Brenner, Chief of Litigation, Thomas M. Sobel, Staff Counsel and James E. Flynn, Sacramento, for respondent.

Marco E. Lopez, Jerome Cohen, Francis Fernandez, Keene, William H. Carder, San Francisco, Carmen Flores, Ellen S. Greenstone, Carlos Alcala, Keene, Tom Dalzell, Salinas and Sanford N. Nathan, San Francisco, for real party in interest.

GERALD BROWN, Presiding Justice.

Abatti Farms, Inc., and Abatti Produce, Inc. (Abatti) petition for writ of review of a final order of the Agricultural Labor Relations Board (Board) pursuant to Labor Code section 1160.8. We have granted review to determine if substantial evidence in the whole record supports all the findings and orders of the Board. (Lab.Code, § 1160.8; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., 24 Cal.3d 335, 343-346, 156 Cal.Rptr. 1, 595 P.2d 579; Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456.)

Abatti is an agricultural employer subject to the provisions of the Agricultural Labor Relations Act (Act), Labor Code section 1140 et seq. Abatti grows about twelve row crops on some 13,500 acres in Imperial County. Three entities manage the business, all owned and controlled by Ben and Tony Abatti, brothers. The enterprise is operated as a family business out of an office in El Centro. The entities are Abatti Farms, Inc., employing the year-round employees or "steadies" drivers, irrigators, weeding and thinning crew who maintain the land and crops; Abatti Produce, Inc., which employs seasonal employees to harvest, pack and ship the crops; and Abatti Bros., a partnership, which owns and leases the land.

The events scrutinized here arise out of organizing efforts of the charging party, United Farm Workers of America, AFL-CIO (UFW) during the Imperial Valley winter season of 1975-76. Abatti then employed[107 Cal.App.3d 321] about 200 seasonal workers and 100 to 300 steadies. The campaign at Abatti took place during November and December 1975, and the election held January 28, 1976, resulted in certification of UFW as bargaining representative of Abatti's employees. UFW then brought unfair labor practice charges against Abatti before the Board, including charges of denial of access,

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coercive interrogation of employees, and discriminatory discharge or refusal to rehire employees.

The Board found the following unfair labor practices had been committed:

1. Illegal surveillance, violating Labor Code section 1153, subsec. (a), by security guard, Kile, who approached groups of employees and organizers while they were talking or organizers were handing out leaflets at the gate to the Abatti premises, communicating the impression of spying on the workers;

2. Unlawful interrogation, consisting of Jose Rios (supervisor) telling employee Avitua she should vote for the Teamsters in the election, and telling her not to wear a UFW button;

3. Unlawful interrogation and threats to employees in the shovel crew by supervisor Ramon Gonzales;

4. Coercive interrogation consisting of statements by irrigator supervisor Charlie Figueroa to employee Abelino Ortega;

5. Discriminatory discharges and/or refusals to rehire 13 out of 14 charged discriminatees in violation of Labor Code section 1153, subsections (a) and (c).

The Board also found Abatti had committed an unfair labor practice in denying union organizers access to a shop on Abatti premises, on McCabe Road near Heber, during the pre-work hour of 5:00 to 6:00 a. m.

The final Board order provides: the above named unfair labor practices have been committed; Abatti shall cease and desist from unfair labor practices, sign a retraction notice, distribute the notice to all employees presently working for Abatti or who shall be hired during 12 months following issuance of the Board order, and mail the notice to past employees employed between December 13, 1975, and September 20, 1976; if addresses of former employees are not maintained, then [107 Cal.App.3d 322] Abatti shall broadcast the notice on a southern San Diego County area radio station once a week for four weeks during the next peak hiring season; Abatti shall reinstate with back pay the 13 discriminatees; and finally, a Board agent shall have one hour company time access following reading of the notice to answer questions of employees.

FACTS

I. Denial of Access

Workers would congregate in the shop on McCabe Road before work both to get their instructions for the day and also in some cases to drink coffee, warm up, roll dice, and wait for work to start. Union organizers had claimed the right of access to those premises under Board regulations which grant access to employer's premises during the hour before and the hour after work and at other specified times provided such access does not disrupt the employer's operations. (8 Cal.Admin. Code, § 20900(4)(c); see also Agricultural Labor Relations Bd. v. Superior Court, 16 Cal.3d 392, 417, 128 Cal.Rptr. 183, 546 P.2d 687.) The UFW took the position work had not yet started, since the official starting time for steadies was 6:00 a. m., and further claimed no work was being performed in the shop which organizing efforts might disrupt. Abatti, however, denied access to organizers and in some cases had them arrested, because it claimed machinery repair work and other operations, including giving of instructions, was going on in the shop during that hour, and the union organizers interfered with those operations. Also, Abatti claimed the union had effective alternative means to communicate with the workers before work at the gate to the premises. The Board finding was the union may have some pre-work access to the shop during an organizational period, but must first ascertain when work really starts, consisting of the giving of instructions or like operations, and may then have access during the hour before such start. The Board also held to be unfair labor practices both the expulsion of an organizer, Juan Salazar, while he was attempting to address workers at the shop at 5:00 a. m. on December 15, 1975, and the citizen's arrest of five organizers on December

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16 while "in lawful organizational activities" at the shop.

As we have stated, Board regulations which our Supreme Court has upheld permit non-disruptive access to the employer's premises during the hour before work. The Board here found such access was not disruptive. [107 Cal.App.3d 323] The transcript evidence conflicts on the question of disruption of work. We think the solution of the problem here reasonable, namely, permitting access to the shop area but leaving it to the union organizers to ascertain from Abatti personnel when work, in the form of instructions, actually starts. Access may then be had one hour before such starting time. The findings that organizing efforts do not disrupt types of work other than instructions, such as machine repair, are not inherently incredible. Although Ben Abatti testified repair work on machinery was going on in the shop at the specified time, he did not suggest anything about the nature of the operations which would make exclusion of the public necessary, such as the danger of flying fragments or fire or the necessary use of noxious chemicals. Organizing efforts would, obviously, interfere with the giving of instructions and therefore the Board found, and we agree, such efforts must precede the start of instructions. We conclude the order permitting access before instruction begins is entitled to enforcement, and the findings of wrongful denial of such access should stand.

II. Surveillance of Employees

Some time in August 1975, Abatti hired a security guard, Kile, to prevent vandalism. UFW organizers testified he was stationed at the gate to the Abatti premises some time in September 1975, but Ben Abatti testified he was stationed there December 13, 1975, after the first arrest of a UFW organizer in the shop area. UFW organizers further testified Kile's presence at the Abatti gate was intimidating, interfering with their efforts to talk to workers and pass out leaflets there. However, other evidence indicated it was difficult to communicate at the gate in any event without blocking traffic, since there was a continuous flow of vehicles arriving through the gate each morning before work. Although three organizers testified the guard's presence was intimidating, no other employees testified he had been intimidated or coerced by that presence. Further, there is no evidence of acts of intimidation or brutality by Kile, other than his mere presence. Mere stationing of a security guard at the gate is not inherently coercive. In its brief before this court, the Board does not point to any record evidence of employee intimidation other than testimony of the union organizers, and relies mainly on what it regards as the suspicious timing of Kile's placement at the gate, just after the arrest of an organizer. Such an inference is not supported. There is no evidence of "surveillance" as that term is normally understood.

[107 Cal.App.3d 324] III. Illegal Interrogations and Threats

A. Supervisor Jose Rios, Employee Herlinda Avitua

Under this heading we discuss the various encounters between supervisor Rios and employee Herlinda Avitua, in the weeding and thinning crew. The ALO suggested one such interchange was an unfair labor practice, namely, Rios' asking Avitua if she signed a UFW authorization card, but advised dismissing the other charges, saying the...