Gerawan Farming, Inc. v. Agric. Labor Relations Bd., F073720

• Court: California Court of Appeals
• Writing for the Court: LEVY, J.
• Citation: 234 Cal.Rptr.3d 88,23 Cal.App.5th 1129
• Parties: GERAWAN FARMING, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; United Farm Workers of America, Real Party in Interest.
• Decision Date: 30 May 2018
• Docket Number: F073720

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234 Cal.Rptr.3d 88

GERAWAN FARMING, INC., Petitioner,
v.
AGRICULTURAL LABOR RELATIONS BOARD, Respondent;

United Farm Workers of America, Real Party in Interest.

F073720

Court of Appeal, Fifth District, California.

Filed May 30, 2018

Irell & Manella, David A. Schwarz, S. Adina Stohl, Los Angeles; Barsamian & Moody, Ronald H. Barsamian, Fresno; Michael P. Mallery, Fresno; and Michael W. McConnell for Petitioner.

Laura F. Heyck and Todd M. Ratshin for Respondent.

Martinez Aguilasocho & Lynch, Mario Martinez and Edgar Iván Aguilasocho, Bakersfield for Real Party in Interest.

LEVY, J.

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This case involves the intersection of two of the fundamental purposes of the Agricultural Labor Relations Act ( Labor Code, 1 § 1140 et seq.; the ALRA): one is the policy to provide agricultural workers with the right to choose in questions of labor representation through a secret ballot election process (§§ 1140.2, 1152, 1156-1156.7; see J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 8, 34, 160 Cal.Rptr. 710, 603 P.2d 1306 ); the other is the policy to prevent and remedy unfair labor practices committed by employers.² (§§ 1160-1160.9.) Both of these

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important statutory goals were directly at

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stake—and to some extent at odds—in the proceedings below before the Agricultural Labor Relations Board (the Board). An election to decide whether to decertify an incumbent union (the United Farm Workers of America or the UFW) had been ordered by the Board based on an employee petition, and a vote was actually taken, but from the Board’s perspective there were lingering issues of whether alleged misconduct by the employer, Gerawan Farming, Inc. (Gerawan), may have tainted the employees’ decertification effort. The ballots were impounded and administrative proceedings conducted. In the end, as reported in its decision in Gerawan Farming, Inc. (2016) 42 ALRB No. 1, the Board nullified the employees’ election as a remedy for Gerawan’s purported unfair labor practices. By petition for review under section 1160.8, Gerawan challenges not only the Board’s findings of unfair labor practices, but also the remedy imposed of setting aside the election. As more fully explained herein, we conclude the Board erred in several of its findings of unfair labor practices as well as in the legal standard applied in reaching its remedial conclusions. Accordingly, we set aside 42 ALRB No. 1, in part, and remand the matter to the Board to reconsider its election decision in a manner consistent with the views set forth in this opinion.³

SYNOPSIS OF CASE

Our factual introduction to this case is presented in two parts. In this initial part, we focus attention on key procedural events that culminated in Gerawan’s writ of review, including the election itself. We also provide an introductory outline of our legal analysis of certain of the material issues. By framing these core events and issues up front, we hope to minimize the risk to the reader of losing the forest for the trees in this lengthy and complicated opinion. After this focused synopsis is given, a more comprehensive overview of the factual and procedural background will follow.

On October 25, 2013, farmworker Silvia Lopez (also referred to as the petitioner) filed a petition for decertification to the Board, signed by herself and a considerable number⁴ of her coworkers at Gerawan, seeking an election

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to allow the agricultural workers at Gerawan to decide for themselves whether or not the incumbent union, the UFW, would continue to be their certified

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bargaining representative.⁵ Under the relevant provisions of the ALRA, an election will be ordered if an adequate threshold showing has been made such that the Board has reasonable cause to believe that a bona fide question of representation exists. (See §§ 1156.3 & 1156.7.)⁶ Here, in response to the petition for decertification, and based upon its Regional Director’s determination that the petition met the statutory requirements for holding an election,⁷ the Board ordered an election "be held on Tuesday, November 5, 2013." On that date, the farmworkers at Gerawan cast their votes in a secret ballot election conducted by Board staff. It was arguably the largest election in ALRA history. However, rather than promptly tallying the ballots⁸ preliminary to a consideration of any election objections, the Board had ordered the ballots impounded. To the present day, the ballots remain impounded (i.e., in storage under the Board’s possession and control), and they have never been opened and counted.

In September of 2014, more than 10 months after the election, a consolidated evidentiary hearing was commenced before an administrative law judge (ALJ) assigned by the Board to hear the following issues together: (i) the UFW’s election objections, and (ii) the General Counsel of the Board’s (the

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General Counsel’s)⁹ related claims that Gerawan committed unfair labor practices (e.g., employer instigation of and improper assistance to the decertification movement) which allegedly impacted the validity of the decertification petition and required the election to be set aside.¹⁰ Four distinct parties participated

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through their respective counsel in the lengthy ALJ hearings, including the General Counsel/the Board, Gerawan, the UFW, and Silvia Lopez (as the petitioner). After the conclusion of the evidentiary proceedings, the ALJ issued a written decision finding that Gerawan committed pre-election unfair labor practices that, in the ALJ’s view, tainted the decertification petition. Although the ALJ rejected as unsupported the allegations of employer instigation, the ALJ found that unlawful employer assistance and other violations had occurred. Gerawan’s offending conduct was found to include, among other things, assistance of the workers’ decertification movement by means of discriminating in favor of the pro-decertification signature gatherers, allowing Silvia Lopez to work reduced hours (which she often used to gather more signatures), and failing to take action in response to certain protests and work stoppages on the part of pro-decertification workers. As a remedy for Gerawan’s misconduct, the ALJ concluded that the petition for decertification would have to be dismissed and the election set aside. Exceptions to the ALJ’s decision were made to the Board, and the matter came before the Board for its review. With minor changes, the Board affirmed the ALJ’s decision and rationale in its entirety, including the relief granted. Thus, the Board upheld the dismissal of the decertification petition and nullification of the election based upon the findings that Gerawan committed pre-election unfair labor practices that tainted the decertification effort. The Board’s decision was reported as Gerawan Farming, Inc., supra, 42 ALRB No. 1.

By petition for review under section 1160.8, Gerawan challenges the decision of the Board in Gerawan Farming, Inc., supra, 42 ALRB No. 1. As noted, Gerawan’s petition for review not only attacks the findings that it committed unfair labor practices, but also the drastic remedy imposed by the Board of setting aside the employees’ secret ballot election. The Board and the UFW object to any review by this court of the Board’s election-related

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decision, insisting that Gerawan must first follow the technical refusal to bargain procedure before any judicial review of that particular determination may be obtained.

Under the unique procedural posture of this case, where (i) the technical refusal to bargain procedure was wholly inadequate under circumstances created by the Board’s own doing,¹¹ and (ii) the relief granted by the Board of setting aside the election in the consolidated hearing was based upon and inextricably intertwined with the Board’s unfair labor practice findings, we agree with Gerawan that our review may include both the unfair labor practice findings and the legal soundness of the conclusions and the election-related relief premised on those findings. To some extent, then, we will consider the remedy imposed by the Board of setting aside the election. At the same time, we take a guarded approach. Since the Board has been entrusted by the Legislature with discretion to make election certification decisions (§§ 1156.3, 1156.7), our intention is to correct legal error, not substitute our discretion for that of the Board.

Having reviewed the entire record, we conclude that several of the unfair labor practice findings relied on by the Board were unsupported by the record as a whole. This alone would warrant returning the case to the Board to reconsider

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its remedy. More than that, however, it appears that the Board applied...