George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. of State of Cal.
| Decision Date | 09 January 1984 |
| Docket Number | AFL-CI,R |
| Citation | 198 Cal.Rptr. 194,150 Cal.App.3d 664 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 107 Lab.Cas. P 55,827 GEORGE ARAKELIAN FARMS, INC., a California corporation, Petitioner, v. The AGRICULTURAL LABOR RELATIONS BOARD OF the STATE OF CALIFORNIA, Respondent, UNITED FARM WORKERS OF AMERICA,eal Party in Interest. Civ. 20469. |
Challenging the validity of a representation election, George Arakelian Farms, Inc. (Arakelian or petitioner) refused to bargain. On charges by United Farm Workers of America AFL-CIO (UFW) the Agricultural Labor Relations Board (ALRB or Board) determined that in refusing to bargain Arakelian committed unfair labor practices (violations of Lab.Code, § 1153, subds. (a) and (e) 1) and issued an order which included as a matter of routine a provision requiring Arakelian to make its "employees whole for all losses of pay and other economic benefits sustained by them as the result of [its] refusal to bargain."
Arakelian sought statutory review of the Board's decision and order pursuant to Labor Code section 1160.8, and we issued a writ of review and stay order. Shortly thereafter, however, the California Supreme Court granted a hearing in the case of J.R. Norton Co. v. Agricultural Labor Relations Bd., the decision in which was later reported at 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306. Board and UFW brought to our attention that at least two of the major issues in this case were the same as issues before the Supreme Court in Norton and suggested that proceedings in this court be held in abeyance until the decision of Norton. We issued an order to that effect.
Subsequently, the Norton decision came down holding inter alia that it was inappropriate for the Board to issue a make-whole order routinely in cases in which the employer refused to bargain for the purpose of obtaining judicial review of an order rejecting its objections and certifying an election.
We thereupon remanded the case to the Board for reconsideration of the propriety of its make-whole order in light of Norton. On remand the Board decided that its make-whole order was appropriate and reissued it in its revised order.
The matter is now again before us for review on all issues. (All statutory references will be to the Labor Code unless otherwise specified.)
On December 15, 1976, following a petition for certification filed by UFW, an election was conducted among Arakelian's agricultural employees. Out of 355 eligible voters 168 voted. Of the 168 ballots, 139 were for the UFW, 12 were for no union, and 17 were challenged and unresolved.
Petitioner filed timely objections to the election pursuant to section 1156.3, subdivision (c) 2 and ALRB regulation 20365 (Cal.Admin.Code, tit. 8, § 20365). 3
The objections, supported by declarations, were four in number: (1) that UFW organizers committed frequent and flagrant violations of ALRB's access rules during the election campaign; (2) that the Calexico election site chosen, a small park adjacent to the Mexican border, was a UFW organizing area and was in and of itself an adverse and unfair influence on the requisite atmosphere of free choice by the employees; (3) that the designated hours for balloting in conjunction with the number and location of polling places put the employer at an unfair disadvantage; and (4) that Carlos Bowker, the Board agent who conducted the election, acted or gave the appearance of acting in a biased and prejudiced manner at the pre-election conference held two days before the election, giving the assembled workers the impression the Board supported the UFW by delaying the scheduled start of the meeting one and a half hours until the UFW representatives arrived, utilizing a UFW organizer as an interpreter when other interpreters were available, and invariably ruling, arbitrarily and without regard to the merits, in favor of the UFW on each and every contested question concerning the arrangements for the election, in some cases changing his ruling to coincide with UFW wishes after having initially ruled otherwise.
Pursuant to a delegation of authority from the Board (see § 1142, subd. (b) 4), the executive secretary of ALRB reviewed the objections and determined that only the objection relating to the UFW's access rule violations stated a prima facie case. That objection was scheduled for hearing. Petitioner's other objections were dismissed without investigation or hearing. 5 Petitioner filed a request for review by the Board challenging the summary dismissal of three of its four objections (§ 1142, subd. (b) [see fn. 4, ante ]; Cal.Admin.Code, tit. 8, § 20393 6). The Board denied petitioner's request for review on the ground the request was untimely made.
A hearing was thereafter held on the access rule violations objection. On stipulated facts, the hearing examiner determined there were a number of access rule violations by UFW organizers but that there was no evidence these violations had any coercive effect upon petitioner's employees or the outcome of the election (see Norton, supra, 26 Cal.3d at pp. 25-26, 160 Cal.Rptr. 710, 603 P.2d 1306, and decisions there cited). Accordingly, the hearing examiner recommended this objection be dismissed and the UFW be certified as the bargaining representative. Arakelian filed timely exceptions to the hearing examiner's decision (Admin.Code, tit. 8, § 20370(g)); however, the Board adopted the examiner's decision and certified UFW as the exclusive bargaining representative for Arakelian's agricultural employees (George Arakelian Farms, Inc. (Feb. 2, 1978) 4 A.L.R.B. No. 6).
Wanting judicial review of the Board's determination and having no other means of obtaining it, (see J.R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at pp. 10-11, 160 Cal.Rptr. 710, 603 P.2d 1306, and cases there cited) Arakelian refused to bargain with the UFW. Consequently, on charges lodged by UFW, General Counsel filed a complaint against Arakelian charging that by refusing to bargain Arakelian committed two unfair labor practices: (1) interfering, restraining or coercing the employees in the exercise of their rights under the ALRA (Lab.Code, § 1153, subd. (a)), and (2) refusing to bargain collectively in good faith with the certified labor organization (Lab.Code, § 1153, subd. (e)).
By agreement of the parties, the unfair labor practice charges were submitted directly to the Board on stipulated facts. The Board determined that in refusing to bargain Arakelian was guilty of the unfair labor practices charged in the complaint and issued a cease and desist order and an order requiring Arakelian to take affirmative steps to remedy its unlawful conduct including the make-whole provision referred to earlier.
In its petition for review filed in this court August 25, 1978, Arakelian's primary contentions were: (1) that the ALRB erred in dismissing three of its four objections to the election without investigation or hearing because: (a) a hearing on the objections was statutorily mandated by subdivision (c) of section 1156.3 (see fn. 2, ante ) and (b) the executive secretary and Board employed an erroneous legal standard in dismissing its objections without investigation or hearing, whereas under correct legal standards the dismissed objections were sufficient to require an investigatory hearing; (2) that, accordingly, in refusing to bargain Arakelian did not commit unfair labor practices; (3) that whether or not it had committed unfair labor practices, the Board's practice of imposing a make-whole remedy routinely "whenever an employer has been found to have refused to bargain" (Perry Farms, Inc. (Apr. 26, 1978), 4 ALRB No. 25, at p. 9) without distinguishing between refusals to bargain for the purpose of obtaining judicial review and other refusals to bargain was impermissible under the Agricultural Labor Relations Act (ALRA); and (4) the method of calculation of the make-whole remedy as indicated by the Board's order was arbitrary and unlawful.
The two identical issues involved in the Norton case were, of course, whether or not the Board is statutorily required to hold a hearing on election objections and whether or not the Board may lawfully impose a make-whole remedy routinely in all cases of a refusal to bargain. Norton held that notwithstanding the language in section 1156.3, subdivision (c), "Upon receipt of a petition under this subdivision, the board, upon due notice, shall conduct a hearing to determine whether the election shall be certified" (emphasis added), the Board is not required to conduct a hearing unless the objection states a prima facie case for setting aside the election. (Norton, supra, at p. 17, 160 Cal.Rptr. 710, 603 P.2d 1306.) It also held the Board may not, consistently with the objectives of the ALRA, impose a make-whole remedy routinely and without the exercise of discretion in cases involving a refusal to bargain for the purpose of obtaining judicial review of the validity of an election. (Norton, supra, at pp. 34-35, 160 Cal.Rptr. 710, 603 P.2d 1306.) The Norton decision was filed ...
To continue reading
Request your trial