Artesia Dairy v. Agricultural Labor Relations Bd.

• Decision Date: 20 November 2008
• Docket Number: No. F054590.,F054590.
• Citation: 86 Cal. Rptr. 3d 91,168 Cal.App.4th 598
• Court: California Court of Appeals Court of Appeals
• Parties: ARTESIA DAIRY, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, Real Party in Interest.

168 Cal.App.4th 598

86 Cal. Rptr. 3d 91

ARTESIA DAIRY, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent UNITED FARM WORKERS OF AMERICA, Real Party in Interest.

No. F054590.

Court of Appeals of California, Fifth District.

November 20, 2008.

Sagaser, Jones & Helsley, Howard A. Sagaser and David W. Burnett for Petitioner.

J. Antonio Barbosa and Joseph A. Wender for Respondent.

Marcos Camacho and Mario Martinez for Real Party in Interest.

OPINION

LEVY, J.

The Agricultural Labor Relations Board (ALRB) ruled that certain persons employed by Artesia Dairy (Artesia) were not eligible to vote on the United Farm Workers of America's (UFW) petition to represent Artesia's agricultural employees. (Artesia Dairy (2007) 33 ALRB No. 3.) Following this decision, the UFW was certified as the exclusive bargaining representative of Artesia's agricultural employees by a 27-to-25 vote.

However, Artesia had no right to obtain immediate judicial review of the ALRB's decision certifying the UFW. Rather, an employer can obtain judicial review only after it has been found guilty of an unfair labor practice in refusing to bargain with the union. (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 10 [160 Cal.Rptr. 710, 603 P.2d 1306].) Accordingly, consistent with the procedure outlined in J.R. Norton Co. v. Agricultural Labor Relations Bd., Artesia engaged in a "technical" refusal to bargain and generated an unfair labor practice decision that is reviewable under Labor Code¹ section 1160.8. (Artesia Dairy (2007) 33 ALRB No. 6.) Through review of this decision, in which the ALRB reaffirmed its decision in 33 ALRB No. 3, this court may review the election. (J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 27.)

In its petition for review, Artesia challenges the ALRB's determination that seven employees were ineligible to vote. According to Artesia, the ALRB erroneously concluded that Kevin, Kasey, and Kannen Avila, nephews of Artesia's owners, were ineligible because they were the "`functional equivalent'" of the owners' children. Artesia also contends that, contrary to the ALRB's conclusion, the landscaping work performed by John Flores was incidental to or in conjunction with the farming operation and therefore constituted agriculture. Artesia further argues that the ALRB incorrectly found that Angelita Pacheco was ineligible to vote because she did not spend a substantial amount of her time engaged in agricultural work. Finally, Artesia disputes the ALRB's determination that Hector Vera and Sergio Rey were supervisors.

As discussed below, the ALRB erred in sustaining the challenges to Kevin, Kasey, and Kannen Avila. These employees do not fall under the regulation that excludes the owner's children from voter eligibility. Accordingly, this court has granted Artesia's petition for review and will reverse this aspect of the ALRB's decision and order. However, both the law and substantial evidence support the ALRB's rulings on the remaining challenged ballots.

BACKGROUND

This case began with the UFW filing a petition for certification in February 2006. Agricultural employees of Artesia were eligible to vote if they worked during the period of February 13, 2006, to February 26, 2006. The election was held on March 7, 2006, with the initial ballot tally showing 25 votes for the UFW, 24 votes for "`No Union,'" and 15 unresolved challenged ballots. In an earlier ALRB decision, two challenges were sustained and one was overruled. (Artesia Dairy (2006) 32 ALRB No. 3.) An evidentiary hearing was set for the 12 remaining challenges.

During the hearing, the parties stipulated that two employees were supervisors whose challenges should be sustained. Thereafter, the investigative hearing examiner (IHE) issued his decision on the remaining challenges. The IHE recommended that one challenge be sustained but that the remaining nine challenges be overruled. Artesia filed an exception to the overruling of the challenge to Jesus Mesa Martinez and the UFW filed exceptions to the overruling of the other eight challenges.

In Artesia Dairy, supra, 33 ALRB No. 3, the ALRB affirmed the IHE's recommendation to overrule the challenge to Jesus Mesa Martinez finding that he would have worked but for his work-related injury. The ALRB also affirmed the overruling of the challenge to Rosa Pacheco finding that she performed a regular and substantial amount of her work for Artesia's farming operation. However, the ALRB overturned the IHE's recommendations on the remaining seven employees and sustained the challenges to their ballots. The voting eligibility of these seven employees is the subject of the petition for review.

Based on a revised tally of ballots showing 27 votes for the UFW and 25 votes for "No Union," the ALRB certified the UFW as the exclusive bargaining representative of the Artesia agricultural employees. Artesia then engaged in the technical refusal to bargain in order to seek judicial review of the underlying ALRB decision. That resulted in the decision in 33 ALRB No. 6, in which the ALRB found no basis for reconsidering its decision in 33 ALRB No. 3. Although Artesia offered additional evidence regarding the eligibility of John Flores, the ALRB found the evidence was unpersuasive and not "newly discovered." Nevertheless, the ALRB concluded the case posed several legal issues requiring a clarification or extension of existing law. Accordingly, the ALRB found this was not an appropriate case for awarding the bargaining make-whole remedy pursuant to section 1160.3, i.e., giving employees the salary differential between what they were actually earning and what they would have earned in wages and fringe benefits under a contract resulting from good faith bargaining between their employer and their union.

DISCUSSION

1. Standard of review.

Section 1160.8 provides that, on review, the ALRB's findings of fact shall be conclusive "if supported by substantial evidence on the record considered as a whole." This standard of review is met if the record contains relevant evidence that a reasonable mind might accept in support of the findings. (Carl Joseph Maggio, Inc. v. Agricultural Labor Relations Bd. (1984) 154 Cal.App.3d 40, 54 .) Accordingly, the reviewing court does not reweigh the evidence. If there is a plausible basis for the ALRB's factual decisions, the court is not concerned that contrary findings may seem equally reasonable, or even more so. (Vessey & Co. v. Agricultural Labor Relations Bd. (1989) 210 Cal.App.3d 629, 642 .) Witness credibility, for example, is particularly for the ALRB's determination. Accordingly, such evidence is not reviewable by the court unless the testimony is incredible on its face or inherently improbable. (Bertuccio v. Agricultural Labor Relations Bd. (1988) 202 Cal.App.3d 1369, 1386 .) However, substantial evidence is not established by any evidence, i.e., the evidence must be of ponderable legal significance. (Vessey & Co. v. Agricultural Labor Relations Bd., supra, 210 Cal.App.3d at p. 642; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633 .)

In contrast, ALRB decisions that rest on erroneous legal foundations will be set aside. (Vessey & Co. v. Agricultural Labor Relations Bd., supra, 210 Cal.App.3d at p. 643.) However, the ALRB's interpretation of its own regulations is entitled to deference. (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 353 [156 Cal.Rptr. 1, 595 P.2d 579].) Further, as the agency entrusted with the enforcement of the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975 (ALRA) (§ 1140 et seq.), the ALRB's interpretation of this act "is to be accorded `great respect by the courts and will be followed if not clearly erroneous.'" (San Diego Nursery Co. v. Agricultural Labor Relations Bd. (1979) 100 Cal.App.3d 128, 140 .)

(1) Under section 1148, the ALRB must follow all applicable precedents of the National Labor Relations Act (NLRA; 29 U.S.C. § 151 et seq.). Thus, when reviewing ALRB orders, this court is also guided by decisions under the NLRA. (Vessey & Co. v. Agricultural Labor Relations Bd., supra, 210 Cal.App.3d at p. 643.)

2. Kevin, Kasey, and Kannen Avila did not fall under the California Code of Regulations, title 8, section 20352, subdivision (b)(5) exclusion from voter eligibility.

Hans and Roxanne Reitsma are the owners of Artesia. Kevin, Kasey, and Kannen Avila are their nephews. During the eligibility period and election, the Avila brothers were living with the Reitsmas and helped out around the dairy after school and on weekends. The brothers had been placed in the Reitsmas' home by Child Protective Services. Hans Reitsma testified that he understood the arrangement to be foster care and that he and his wife would best be described as foster parents. Hans Reitsma viewed it as his responsibility to feed and clothe the boys and provide them a home. At the time of the IHE hearing, the boys were living with their grandparents.

California Code of Regulations, title 8, section 20352, subdivision (b)(5) (Regulation 20352(b)(5)), provides that the "parent, child, or spouse of the employer" is ineligible to vote. In Pete Vanderham Dairy, Inc. (2002) 28 ALRB No. 1, the ALRB explained that this regulation "embodies the unremarkable proposition that the children of the employer are so closely and inherently aligned with the interests of management, like managers and supervisors, that they cannot be considered employees for collective bargaining purposes." (28 ALRB No. 1, p. 2.)

The ALRB found that Kevin, Kasey, and Kannen were agricultural employees during the eligibility period. While the ALRB noted that the familial exclusions set forth in Regulation 20352(b)(5) stand as narrow exceptions that it has consistently refused to expand, the ALRB nevertheless concluded that the boys were ineligible to vote under the child exclusion. The...