George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd.

• Citation: 230 Cal.Rptr. 428,186 Cal.App.3d 94
• Decision Date: 30 September 1986
• Docket Number: AFL-CI,R
• Court: California Court of Appeals Court of Appeals
• Parties: GEORGE ARAKELIAN FARMS, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD of the State of California, Respondent, UNITED FARM WORKERS OF AMERICA,eal Party in Interest. E002924.

Page 428

230 Cal.Rptr. 428

186 Cal.App.3d 94

GEORGE ARAKELIAN FARMS, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD of the State of California, Respondent, UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

E002924.

Court of Appeal, Fourth District, Division 2, California.

Sept. 30, 1986.

Rynn & Janowsky and Lewis P. Janowsky, Newport Beach, for petitioner

[186 Cal.App.3d 97] Daniel G. Stone, Manuel M. Medeiros, Sacramento, and Michael G. Lee, San Francisco, for respondent.

Dianna Lyons and Wendy Sones, Sacramento, for real party in interest.

OPINION

KAUFMAN, Associate Justice.

Petitioner was found by the Agricultural Labor Relations Board (ALRB or Board) to have committed unfair labor practices in unilaterally changing wages and discontinuing a fuel allowance. Petitioner sought review and we issued an order to show cause.

I Procedural History

George Arakelian Farms, Inc. (Arakelian) is a corporation engaged in growing lettuce in the Blythe area of the Palo Verde Valley and is subject to the Agricultural Labor Relations Act (the Act). In December 1976, a representation election was conducted among Arakelian's agricultural employees. The United Farm Workers of America, AFL-CIO (UFW or Union) received the majority of votes cast. ¹ On February 2, 1978, the Agricultural Labor Relations Board (ALRB or Board) certified the results of the representation election and designated the UFW as the collective bargaining representative. (See George Arakelian Farms, Inc. (1978) 4 ALRB No. 6.)

On February 6, 1978, the UFW requested that Arakelian begin negotiations. Arakelian refused to bargain, assertedly to obtain judicial review of the validity of the election. As a result Arakelian was charged with and found guilty of violating Labor Code sections 1153(a) and (e) ² and it was ordered to make its employees whole for economic losses resulting from Arakelian's refusal to bargain. (See George Arakelian Farms, Inc. (1978) 4 ALRB No. 53.) The validity of the election and the propriety of order for make-whole relief were ultimately upheld by the California Supreme Court. George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1985) 40 Cal.3d 654, 221 Cal.Rptr. 488, 710 P.2d 288.) ³

While the charges relating to Arakelian's original refusal to bargain were still pending, the UFW on November 30, 1979, filed new charges, asserting additional violations of sections 1153(a) and (e). The new charges were based on allegations Arakelian had unilaterally increased wages and discontinued a fuel allowance without either notifying the Union or giving it an opportunity to bargain over the changes. After hearing, an administrative law officer (ALO) issued a proposed decision that Arakelian's conduct constituted unfair labor practices and a recommended order that included yet another make whole provision. A three-member panel of the ALRB in a two to one decision adopted the findings and conclusions of the ALO, treating several additional issues raised by the exceptions filed by Arakelian, and issued an order substantially embodying the recommendations of the ALO. (8 ALRB No. 36.) The propriety of the Board's decision and order are at issue in this review.

II Facts ⁴

A. The Operation of the Farm

Petitioner has been in the business of growing lettuce for approximately 25 years. There are two lettuce harvest seasons per year, one in the spring and one in the fall. The spring harvest usually begins in late February and runs for about four or five weeks, until early April. The fall harvest usually begins in November and runs through December.

Petitioner's business was managed by George Arakelian until his death in April 1979. Following that, his son Daniel Arakelian took over supervision of the lettuce harvests.

The harvesting is usually done by groups of three workers, the basic wage rate being a "lettuce trio rate." The trio is comprised of a cutter/packer, a loader, and a closer. The rate also applies to additional workers who sometimes assist in the operation. Approximately 50 employees work in the harvest each day, although the number of workers needed varies depending on the weather and the stage of the season; fewer workers are needed at the beginning of the season. The individual workers vary on a day-to-day basis, with a turnover as some stop working at the petitioner's business and go to work somewhere else.

Petitioner obtains its employees through a labor contractor. Until February 1979, petitioner used Leandro Gomez as its labor contractor; beginning approximately March 1979 it has used Willie Morales as its contractor. Petitioner pays the labor contractor a price for each carton of lettuce harvested; the contractor then pays a trio rate per carton to the employees.

On February 2, 1978, the UFW was certified by the Board as the exclusive bargaining representative for petitioner's agricultural employees. It was stipulated that on February 6, 1978, the Union requested petitioner to commence bargaining and that since February 28, 1978, petitioner has refused to meet and bargain collectively with the Union. It is further stipulated that since February 2, 1978, petitioner has never given notice to, nor negotiated with, the UFW over any changes in wages, hours or working conditions.

B. The Wage Rates

It was undisputed that in November 1979 petitioner agreed with its labor contractor Leandro Gomez to and did raise the lettuce trio rate to 74 cents from the 63 cents it had been when last set in spring of 1979. Much of the evidence that was presented and the stipulation of the parties concerning changes in the lettuce trio rate in earlier years went to petitioner's asserted defense that the fall 1979 change was not a change at all but the continuation of a longstanding practice for the adjustment of the rate.

The testimony concerning wage rates showed the following. For approximately 15 years, through February 1979, Leandro Gomez supplied lettuce harvest workers to petitioners. Before each harvest season Mr. Gomez would meet with George Arakelian and they would make an oral agreement as to a contract price per carton of lettuce harvested. The price would be paid to Mr. Gomez, who then paid his workers their trio rate out of the overall rate paid to Mr. Gomez by petitioner. The trio rate to be paid to the employees was factored into the total price agreed to between petitioner and Mr. Gomez. There were no written agreements. Mr. Gomez paid his employees on a cash basis at the end of each day. On one occasion, in the spring 1978 season, Mr. Gomez and Mr. Arakelian reached an agreement on a wage increase approximately one week after the harvest season began.

Mr. Gomez testified that at these pre-season discussions he would bring Mr. Arakelian check stubs from two other lettuce growers in the area, showing what their current wage rates were. Mr. Arakelian would then check with the other companies. Following this, Mr. Arakelian and Mr. Gomez would agree on the contract price. Mr. Gomez testified that Mr. Arakelian always agreed to Mr. Gomez's requested contract price.

Louise Smoot, petitioner's office manager, testified that at George Arakelian's request she would call other lettuce growers each season to confirm what their current lettuce wage rates were. She testified that she was sometimes asked to call specific companies, and sometimes she would use her own judgment as to which companies to call. In the spring 1978 season she called three growers, and in the fall 1978 season she called one grower.

There are approximately 12 lettuce growers in the immediate area around Blythe, California, where petitioner's premises are located.

In February 1979, Mr. Gomez's association with petitioner was ended, and Willie Morales became the labor contractor used by petitioner. For about a week at the end of the fall 1978 harvest season (in February 1979) Mr. Morales and Mr. Gomez worked together; following that Mr. Morales became the sole contractor used by petitioner.

Beginning with the spring 1979 harvest season, Mr. Morales negotiated the contract price with Daniel Arakelian. Mr. Arakelian continued his father's method of meeting with the contractor prior to the season to negotiate an oral agreement for a contract price. He also directed Ms. Smoot to call some other growers in the area, as she had previously, to confirm their wage rates. After this Mr. Arakelian would make an oral agreement with Mr. Morales. Mr. Arakelian testified that he tried to agree to a price sufficient to keep him competetive in the area. There were no written agreements.

It was stipulated that new lettuce trio rates have been instituted a number of times since the Union was certified in February 1978. Specifically, the trio rate was increased from 56 cents per carton in the spring 1978 season to 60 cents for fall 1978, decreased to 57 cents and then increased to 63 cents for spring 1979, and increased to 74 cents for fall 1979 when the charge in this case was filed.

C. The Fuel Allowance

The employees supplied to petitioner by labor contractor Leandro Gomez lived in several different border cities and towns in the area around petitioner's premises. Petitioner would notify Mr. Gomez how many workers were needed, and Mr. Gomez would tell the workers. They would drive in cars to the border crossing, where Mr. Gomez would meet them and tell them the location of the fields to be harvested.

Mr. Gomez paid the driver of each car a sum of money, from five to ten dollars a day depending on the size of the car, for transportation fuel expenses. Mr. Gomez paid his workers their harvest rate on a cash basis at the end of each day; the transportation fuel allowance was also paid in cash at the end of the day, and was in addition to the harvest trio rate. In late February 1979, Mr. Morales took over as labor contractor. The testimony was not clear as to how many of the employees who had previously worked at petitioner's business...