Harry Carian Sales v. Agricultural Labor Relations Bd.

Decision Date01 August 1985
Docket NumberR,AFL-CI
CourtCalifornia Supreme Court
Parties, 703 P.2d 27, 117 Lab.Cas. P 56,467 HARRY CARIAN SALES, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest. L.A. 31890.

[703 P.2d 32] [39 Cal.3d 217] Smith & Hall, David E. Smith and James W. Hall, Palm Desert, for petitioner.

Thomas F. Olson and Carl G. Borden, Sacramento, as amici curiae on behalf of petitioner.

Manuel M. Medeiros, Daniel G. Stone, Cathy Christian, Ruth Rokeach and Nancy C. Smith, Agr. Labor Relations Bd., Sacramento, for respondent.

Dianna Lyons, Daniel A. Garcia and Wendy Sones, United Farm Workers of America, Sacramento, for real party in interest.

GRODIN, Justice.

Employer Harry Carian Sales (HCS) seeks review of a decision of the Agricultural Labor Relations Board (ALRB or Board) finding that HCS committed 30 unfair labor practices, and ordering HCS to bargain with the United Farm Workers (UFW).

The principal issue raised in this case is whether the ALRB has authority to certify a union and issue a bargaining order as a remedy for an employer's[39 Cal.3d 218] egregious unfair labor practices though the union has not won a secret ballot election. Although such bargaining orders are frequently issued by the National Labor Relations Board (NLRB), this is the first case in which the ALRB has issued such an order. We conclude that the ALRB does have the authority to issue bargaining orders and that the Board's order in this case was [703 P.2d 33] appropriate. As an initial matter, we also conclude that the Board's unfair labor practice findings are supported by substantial evidence, although two of the eighteen challenged findings must be set aside on other grounds. We therefore enforce the Board's order.

HCS is a table grape producer operating in Coachella Valley. In January of 1977 the UFW initiated an organizational campaign among HCS's employees. This campaign included daily visits to the fields and labor camps by union organizers, radio announcements, distribution of leaflets, weekly organizational meetings, and a highly publicized march led by UFW President Cesar Chavez.

Between March and May 1977, the UFW filed four charges with the ALRB alleging that HCS had committed a total of twenty-three unfair labor practices in violation of Agricultural Labor Relations Act (ALRA or Act) section 1153, subdivisions (a) and (c). 1 These charges were consolidated and heard by an administrative law judge (ALJ-1). In September of 1977, ALJ-1 rendered a decision finding that HCS had committed a number of the 23 unfair labor practices charged.

Meanwhile, on June 20, 1977, while ALJ-1's decision was pending, the UFW filed a certification petition and a secret ballot election was held among HCS's agricultural employees on June 27, 1977. The official tally of ballots showed 80 votes for the UFW, 88 votes for no union and 142 challenged ballots. Both the UFW and HCS filed objections to the election. In addition, the UFW filed additional unfair labor practice charges concerning incidents that allegedly occurred during the month of June. These objections and charges were consolidated and heard by a second administrative law judge (ALJ-2).

In December of 1978, ALJ-2 rendered his decision, finding that HCS had committed a number of the additional unfair labor practices alleged and [39 Cal.3d 219] recommending that the election be set aside. ALJ-2 also found that HCS's conduct was sufficiently egregious to preclude a fair rerun election and therefore recommended that the ALRB certify the UFW and order HCS to bargain with the union.

HCS and the UFW filed exceptions to the decision of both ALJs, and all of these exceptions were consolidated and heard by the ALRB. On October 3, 1980, the Board issued a decision affirming and modifying in part the ALJs' decisions. In all, the Board found that HCS had committed 30 unfair labor practices. These violations included surveillance of union activities; unlawful interrogation of HCS employees; threats of discharge and deportation; discriminatory hiring, layoffs and discharges; acts of violence against UFW organizers; an illegal wage increase; and election-eve promises made to HCS employees. Finding that HCS's "pervasive and outrageous conduct ... clearly undermined the union's support, chilled the employees' union sentiment, and precluded holding a fair and free election" the Board set aside the election, certified the UFW as the employees' exclusive bargaining representative and ordered HCS to bargain with the UFW. 2

[703 P.2d 34] HCS challenges the Board's findings as to 18 of the unfair labor practices charged, 3 as well as the Board's authority to issue a bargaining order as a remedy for unfair labor practices.

I. Unfair Labor Practices

We will uphold the Board's findings concerning unfair labor practices if supported by substantial evidence on the whole record. (Rivcom [39 Cal.3d 220] Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 757, 195 Cal.Rptr. 651, 670 P.2d 305.) "Of course, we do not reweigh the evidence. If there is a plausible basis for the Board's factual decisions, we are not concerned that contrary findings may seem to us equally reasonable, or even more so." (Citation omitted.) (Rivcom, supra, 34 Cal.3d at pp. 756-757, 195 Cal.Rptr. 651, 670 P.2d 305.) Furthermore, those findings and conclusions that are within the Board's realm of expertise are entitled to special deference. (Rivcom, supra, 34 Cal.3d at p. 758, 195 Cal.Rptr. 651, 670 P.2d 305.) And, because the evaluation of witnesses' credibility is a matter particularly for the trier of fact, the Board's findings based on the credibility of witnesses will not be disturbed unless the testimony is "incredible or inherently improbable." (Montebello Rose Co., Inc. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 20, 173 Cal.Rptr. 856; Perry Farms, Inc. v. Agricultural Labor Relations Bd. (1978) 86 Cal.App.3d 448, 463-464, 150 Cal.Rptr. 495.)

Applying these standards of review, we conclude there is substantial evidence to support the Board's findings on all of the challenged unfair labor practice charges although, as we shall explain, considerations of due process require that the findings concerning two uncharged incidents be set aside. We agree with the Court of Appeal's analysis of the challenged findings, and adopt the Court of Appeal's discussion as our own. The relevant portion of the Court of Appeal's opinion is set out in an appendix.

II. ALRB's Authority to Issue Bargaining Orders

Any discussion of bargaining orders must begin with a discussion of the Supreme Court's decision in NLRB v. Gissel Packing Co. (1969) 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547. The court in Gissel reaffirmed the NLRB's authority to issue bargaining orders as a remedy where an employer has committed "unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union's majority and caused an election to be set aside." (Id., at p. 610, 89 S.Ct. at p. 1938.) The court reasoned that "[i]f the Board could enter only a cease-and-desist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him 'to profit from [his] own wrongful [conduct],' while at the same time severely curtailing the employees' right freely to determine whether they desire a representative. The employer could continue to delay or disrupt the election processes and put off indefinitely his obligation to bargain; and any election held [703 P.2d 35] under these circumstances[39 Cal.3d 221] would not be likely to demonstrate the employees' true, undistorted desires." (Id., at pp. 610-611, 89 S.Ct. at p. 1938, citations and fns. omitted.)

The Gissel court established a tripartite categorization of unfair labor practices for determining whether a bargaining order could be issued though the union had not

won an election. First, in "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices, the NLRB may issue a bargaining order even without a showing that the union at one point enjoyed a card majority. 4 (Gissel, supra, 395 U.S. at pp. 613-614, 89 S.Ct. at pp. 1939-1940; see United Dairy Farmers Coop. Assn. v. N.L.R.B. (3d Cir.1980) 633 F.2d 1054, 1066, 1069; but cf. Conair Corp. v. N.L.R.B. (D.C.Cir.1983) 721 F.2d 1355, 1377-1384.)

Second, the NLRB may issue bargaining orders in "less extraordinary cases marked by less pervasive practices ... [where] at one point the union had a majority ... [and] the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order." (Gissel, supra, 395 U.S. at pp. 614-615, 89 S.Ct. at p. 1940.)

Finally, the Gissel court held, there is a "third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order." (Id., at p. 615, 89 S.Ct. at p. 1940.)

The ALRA, like the NLRA, neither expressly authorizes nor expressly prohibits the issuance of "Gissel bargaining orders"--i.e., bargaining orders issued as a remedy for egregious employer unfair labor practices in the absence of an election won by the union. In issuing its order in this case, the ALRB relied on its general remedial authority under section 1160.3 to [39 Cal.3d 222] provide such "relief as will effectuate the policies of" the Act. 5 HCS argues that the general language of section 1160.3 is insufficient authority to support the Board's bargaining order. On the contrary, HCS argues, the language and legislative history of the ALRA demonstrate a legislative intent to preclude the issuance of Gissel...

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