Adamek & Dessert, Inc. v. Agricultural Labor Relations Bd., AFL-CI
| Decision Date | 11 March 1986 |
| Docket Number | P,AFL-CI,R |
| Citation | 224 Cal.Rptr. 366,178 Cal.App.3d 970 |
| Court | California Court of Appeals Court of Appeals |
| Parties | ADAMEK & DESSERT, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest. UNITED FARM WORKERS OF AMERICA,etitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; ADAMEK & DESSERT, INC., Real Party in Interest. D002985, D003006. |
Littler, Mendelson, Fastiff & Tichy and Scott A. Wilson, San Francisco, and Charles G. Johnson, Ewing, Johnson & Macklin and William F. Macklin, El Centro, for petitioner.
Daniel G. Stone, Sol., and Michael E. Hersher, Deputy Sol., for respondent.
Dianna Lyons and Daniel A. Garcia, Sacramento, for real party in interest.
The petitions for review filed by Adamek & Dessert, Inc. and the United Farm Workers of America, AFL-CIO have been reviewed and considered by Acting Presiding Justice Staniforth, and Justices Wiener and Work. The petitions are denied. (See Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 156 Cal.Rptr. 1, 595 P.2d 579.) Although we are authorized by law to summarily deny the petitions without explanation, we elect not to do so in this case. (See Holtville Farms, Inc. v. Agricultural Labor Relations Bd. (1985) 168 Cal.App.3d 388, 214 Cal.Rptr. 241.) We believe it will be helpful to set forth our reasons for the court's summary dismissals. We propose, inter alia, to articulate the reasons why the Board cannot average the number of employees on the payroll preceding the election, thus to insure compliance with LABOR CODE SECTION 1156.31 in the future.
This cause involves petitions for review of an Agricultural Labor Relations Board (hereafter ALRB) decision finding that Adamek & Dessert, Inc. (hereafter Adamek) had refused to bargain with the United Farm Workers (hereafter UFW). Petitions have been filed by both Adamek and the UFW. Adamek argues that the Board erred in certifying the UFW as the bargaining representative of its agricultural employees because the representation election was not held at a time when the Company employed 50 percent of the number of employees employed during peak season, because the UFW had intimidated the employees by making home visits to employees under the supervision of one who had been convicted of arson and because the ALRB agents conducting the election had allowed drinking near the polling place and a drunk inside the voting area. The UFW contends that although the Board certified the UFW as the bargaining representative as a result of the election, it prescribed an erroneous method for determining whether, for future cases, a company currently employed 50 percent of those employed at peak employment.
In an effort to assure that representation elections occur when a sufficient number of employees are working in a seasonal industry, the Agricultural Labor Relations Act (hereafter ALRA) requires that the elections take place when the company is employing 50 percent of the number of employees employed during peak season. 2
In this case, a dispute arises over the Board's determination as to whether during the payroll period immediately preceding the filing of an election petition, the Company was employing at least 50 percent of its peak employment. The UFW petitioned for an election among Adamek's agricultural employees on December 8, 1980. In response to the petition, Adamek provided ALRB regional staff with payroll information for both the payroll period immediately preceding the filing of the election petition (the "eligibility period") and the payroll period of highest employment during that calendar year (the "peak period").
The undisputed employment figures for both the peak and eligibility periods are as follows:
Peak Period
----------------------
Employees 10/2 10/3 10/4 10/5 10/6 10/7 10/8
--------- ----- ------ ------ ------ ---- ---- ----
Daily 79 95 86 0 81 86 69
Regular 42 39 40 10 34 41 38
Eligibility Period
----------------------
Employees 11/27 11/28 11/29 11/30 12/1 12/2 12/3
--------- ----- ------ ------ ------ ---- ---- ----
Daily 0 0 4 1 27 29 34
Regular 3 42 40 14 31 38 39
The ALRB regional office determined that, due to turnover during each payroll period, it was necessary to average the daily employment levels over the number of workdays in each payroll period. Since Adamek employed some employees on a weekly basis and others on a daily basis, all the employees did not appear on the same payroll list. The payroll periods of the regular and daily employees were of different durations, so the Board agents computed separate averages for each class of employees, then added them together for comparative purposes. The office discounted, as unrepresentative, certain days on which little or no work was performed during each payroll period. This method led to the following computation: During the peak there was an average of 122 employees (83 daily plus 39 regulars). During the eligibility period, there was an average of 64 employees (30 daily and 34 regulars). 3
Since 64 is more than 50 percent of 122, the ALRB agents decided that the election petition was timely, and thereafter held an election.
On review, the Board held that the methodologies employed by the Board agents, while not unreasonable, arbitrary or capricious, were not the preferred methods of computing peak under the circumstances. The Board stated that, in cases where an employer had both daily employees and employees paid over a longer period, the preferred method is to add all the employees together over the longer period and obtain one average number of employee days. The Board indicated that its preferred method of computation would be prospectively applied to avoid unfairness to the UFW, which had filed its election petition in reliance on other methods approved by the Board in earlier cases.
Adamek argues that under the approach the Board deemed appropriate in this case to determine whether it was employing 50 percent of the number of employees working during peak, it did not employ 50 percent of the number of employees it employed during peak season and therefore the election was untimely and could not be held pursuant to section 1156.4.
The Union argues that the averaging approach is inconsistent with the ALRA in that it diminishes the ability of seasonal employees to seek a representation election.
Because the nature of employment practices differs so greatly in the agricultural industry, determination of the numbers needed to come to a conclusion on this issue has not been uniform and simple. When enforcement of the ALRA began, the Board applied the employee count method. Under this method, the names on the employers' payroll immediately preceding the filing of the representation petition are counted and that amount is compared with the number of names which appear on the peak payroll during the preceding year.
The method of determining peak was first modified in Mario Saikhon (1976) 2 ALRB No. 2. Under the Saikhon approach, the number of names on the current payroll was compared with the average number of employees working each day during the peak payroll period. The average number was determined by adding up the total number of employees working during the period and dividing that number by the number of days in the payroll period.
Shortly thereafter, the Board modified the Saikhon method in Ranch No. 1, Inc. (1976) 2 ALRB No. 37. The Board introduced the concept of non-representative days into its determination of the average number of employees working during the peak period and applied the Saikhon averaging approach to both the peak payroll period and the payroll period immediately preceding the filing of the election petition. Under this modification, days on which few or no employees were working were not included in determining the average number of employees working during the payroll periods. The Board did not discuss the lawfulness or why it applied the averaging method to the payroll period immediately preceding filing of the petition.
Shortly after Ranch No. 1, Inc. was decided, the Board was faced in Luis A. Scattini & Sons (1976) 2 ALRB No. 43 with a factual situation almost identical to that presently before the court. Scattini hired two groups of employees: regular employees, who were paid on a bi-weekly payroll, and seasonal employees, who were paid on a daily payroll. The Board considered application of the Saikhon approach and an alternate approach which determined the average for each group separately, using a five-day period for determining the average of the seasonal employees. Under the alternate approach, it could then add together the two averages to use as the number employed for comparing the current number with that employed during the peak payroll period. Because under both methods of calculation, over 50 percent of the number of employees who worked during peak season were working during the week preceding filing of the representation petition, the Board held it was peak without deciding whether the Saikhon approach or the alternate approach was appropriate.
The Board thus resolved the unanswered question in Scattini by following the Saikhon method for determination of peak and by applying that method to a calculation of the number of employees working during both the peak payroll period and the eligibility period.
Obviously, from the history of litigation over issues of whether a company is currently employing 50 percent of the number of employees employed during peak, there are a number of ways in which it can be determined....
To continue reading
Request your trial
-
Agricultural Labor Relations Bd. v. Superior Court
...as well as those of the prior peak employment period is contrary to applicable law, citing Adamek & Dessert, Inc. v. Agricultural Labor Relations Bd. (1986) 178 Cal.App.3d 970, 224 Cal.Rptr. 366. Finally, the objection was dismissed because Gallo's contention that prospective peak figures s......
-
Gerawan Farming, Inc. v. Agric. Labor Relations Bd.
...Fruit & Produce Co., Inc. (1977) 3 ALRB No. 28 (Kaplan's ) ]; Adamek & Dessert, Inc. v. Agricultural Labor Relations Bd. (1986) 178 Cal.App.3d 970, 983, 224 Cal.Rptr. 366 (Adamek & Dessert, Inc. ); Bruce Church, Inc. (1991) 17 ALRB No. 1, p. 13 [stating principle adhered to by the Board tha......
-
Gerawan Farming, Inc. v. Agric. Labor Relations Bd.
...by the Board in Kaplan's Fruit & Produce Co., Inc. (1977) 3 ALRB No. 28 (Kaplan's)]; Adamek & Dessert, Inc. v. Agricultural Labor Relations Bd. (1986) 178 Cal.App.3d 970, 983 (Adamek & Dessert, Inc.); Bruce Church, Inc. (1991) 17 ALRB No. 1, p. 9 [stating principle adhered to by the Board t......
-
Tri-Fanucchi Farms v. Agric. Labor Relations Bd.
...scope. ( J.R. Norton Co., supra, at p. 29, 160 Cal.Rptr. 710, 603 P.2d 1306 ; Adamek & Dessert, Inc. v. Agricultural Labor Relations Bd. (1986) 178 Cal.App.3d 970, 978, 224 Cal.Rptr. 366 (Adamek & Dessert ).)II. ALRA Statutory OverviewThe issue of whether abandonment or other equitable theo......