M. B. Zaninovich, Inc. v. Agrigultural Labor Relations Bd.
| Decision Date | 15 January 1981 |
| Docket Number | R,AFL-CI |
| Citation | 114 Cal.App.3d 665,171 Cal.Rptr. 55 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 94 Lab.Cas. P 55,344 M. B. ZANINOVICH, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest. Civ. 4472. |
On August 25, 1976, real party in interest UFW filed an unfair labor practice charge against petitioner. Thereafter, a complaint was issued by the Board's regional director alleging that on or about August 11, 1976, petitioner "established, implemented and otherwise enforced a discriminatory hiring policy which was designed to and did in fact result in the refusal to rehire workers because of their participation in settlement proceedings with the board and their support of and activities on behalf of UFW." Such activity was alleged to be in violation of Labor Code section 1153, subdivisions (a) and (c). 1 (All sections hereinafter referred to are Labor Code sections unless otherwise indicated.)
A hearing was held on the charge from August 8 through August 23, 1977.
On January 16, 1978, the administrative law officer (ALO) issued his decision and recommendation to the Board. The ALO found that petitioner had committed an unfair labor practice with respect to three employees in violation of section 1153, subdivision (a), and recommended reinstatement of the employees with back pay. The ALO found that because the three workers had not been advised of the offers of reinstatement pursuant to the settlement agreement, a reasonable period of time for seeking reinstatement had not expired at the time they presented themselves to petitioner for reemployment in August 1976. The petitioner's refusal to rehire the group had a coercive effect on the employees in the exercise of their rights as guaranteed by section 1152. 2
As to the alleged section 1153, subdivision (c) violation (discrimination in hiring to discourage union membership), the ALO concluded that the general counsel had failed to prove the anti-union animus required for such a violation. The ALO's reasoning on this point was that under the facts petitioner could have believed in good faith that the three employees did not want reinstatement under the settlement agreement since they did not apply for reinstatement until seven months after receiving their back pay checks. The hearing officer concluded: "(Petitioners') actions are not so actively and inherently destructive of employees' union rights as to preclude the need for showing anti-union animus under N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (87 S.Ct. 1792, 18 L.Ed.2d 1027)."
On October 11, 1978, the Board issued its decision. It upheld the ALO's finding that petitioner had unlawfully refused to hire the three employees in violation of section 1153, subdivision (a). However, in so holding, the Board took a different path from the ALO by finding that also citing N.L.R.B. v. Great Dane Trailers, Inc. (1967) 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027.
The Board made no finding as to the alleged section 1153, subdivision (c) violation because "such () would not affect our remedial Order in this case."
The Board ordered petitioner to cease and desist from refusing to rehire former employees because of their efforts to redress union grievances through Board processes or in any manner interfering with its employees in the exercise of their rights under section 1152. The Board then ordered petitioner to take the following affirmative action: (1) offer the group immediate reinstatement to their former jobs without prejudice to their seniority right, said offer to remain in effect until the end of the 1979 harvest season; (2) reimburse the group for any loss of earnings and other economic losses they may have suffered as a result of petitioner's refusal to rehire them in August 1976, from the date of such refusal to rehire to the date on which they are offered reinstatement together with interest thereon at the rate of seven percent per annum; (3) within 30 days from receipt of the order, to mail a copy of the attached notice in appropriate languages to each of the employees on its payroll during the 1976 harvest season; (4) post copies of the notice in conspicuous places on its property for a 90-day period to be determined by the regional director; and (5) arrange for a Board representative to distribute and read the notice in appropriate languages to the assembled employees on company time. The reading or readings shall be at such times and places as are specified by the regional director. Following the reading, the Board agent shall be given the opportunity, outside the presence of supervisors and management, to answer any questions employees may have concerning the notice or the employees' rights under the Act.
On November 9, 1978, a petition for writ of review was filed with this court.
On February 29, 1980, without deciding the substantive issues presented by the petition for review, this court remanded the case to the Board with directions to redetermine among other things, whether paragraph 2(e) of the ordered remedies requiring a mailing of notice to the employees on petitioner's payroll during the 1976 harvest season was overbroad insofar as it encompassed employees who were not aware of or otherwise suffered any harmful effects from the unfair labor practice and to reconsider paragraph 2(g) of the order requiring a Board agent to distribute and read a prescribed notice to assembled employees on company time and to answer employee questions concerning the notice and employee rights under the Act. The Board was directed to take whatever additional evidence it deemed appropriate on the questions and to make new findings and a proposed order and to file same with this court within 60 days from the date of remand.
A certified record of the remand proceedings was filed with this court on May 16, 1980, which contained a Supplemental Decision and Revised Order. Insofar as pertinent to this review, the only changes made by the Board from the original order were that it restricted the mailing of the notice to those employees who worked for petitioner during August 1976, rather than the entire 1976 harvest season, and it deleted the time limitation the offer of reinstatement is to remain open. The Board took no additional evidence on the remand questions.
Petitioner is an agricultural employer engaged in producing table grapes.
Petitioner's need for farmworkers varies through the year. During December and January, little work goes on as the harvesting has ended. Thereafter pruning, cutting wild shoulders and leaf pulling is done. In May and June, preharvesting activities such as girdling, tipping and thinning the grapes takes place. From July to November, harvesting is performed.
Peak hiring occurs during the harvest season when petitioner employs six to seven hundred people.
The three employees whom petitioner wrongfully refused to rehire on August 11, 1976, were Mohamed Aldafari, Abdo M. Aldafari and Abdo A. Mosleh (the group). The group had worked for petitioner for several prior years in preharvest and harvest work.
Early in 1975, petitioner had established a seniority system after a review of his records had indicated it was facing a large turnover of employees and with increasing wages, efforts should be made to have the same employees return.
Petitioner's stated reason for the seniority system was to maintain an experienced work force and to minimize training requirements by getting the same people back year after year. The seniority system provides for seniority by crews with petitioner having seven to eight crews. The system provides for an employee to lose seniority, i. e., assigned a "negative" seniority if an employee quits, or is fired or if the employee is contacted to return to work and fails to report. In the event an employee who loses seniority because of the foregoing reasons thereafter seeks to return to work, the employee is referred to Phil Maxwell who makes the final decision whether the employee should be rehired. However, a person with "zero" seniority, i. e., someone who had not worked for petitioner before, would have preference over a former employee who had broken seniority by refusing to return to work.
Maxwell also testified the negative seniority system is normally not used during the pruning seasons in the winter and early spring because the weather is bad and lower wages are paid. Persons who refuse to work during pruning do not lose their seniority.
On October 31, 1975, petitioner entered into a stipulated settlement with the Board's general counsel regarding certain unfair labor practice charges. The agreement provided petitioner would cease and desist from refusing to hire, rehire,...
To continue reading
Request your trial
-
Superior Farming Co. v. Agricultural Labor Relations Bd.
...the more general anti-interference proscription of section 1153, subdivision (a). (M.B. Zaninovich, Inc. v. Agricultural Labor Relations Bd. (1981) 114 Cal.App.3d 665, 675, and fn. 3, 171 Cal.Rptr. 55; Merrill Farms v. Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 176, 183-184, 169......
- People v. Johnson
-
Nish Noroian Farms v. Agricultural Labor Relations Bd.
...an assumption that employees not directly involved had become aware of it. (Citing M.B. Zaninovich, Inc. v. Agricultural Labor Relations Bd. (1981) 114 Cal.App.3d 665, 686-687, 171 Cal.Rptr. 55.) Here there was evidence that the refusal to rehire Becerril and Baca, as well as the coercive i......
-
Nash-DeCamp Co. v. Agricultural Labor Relations Bd.
...if classifiable as "concerted activities for ... mutual aid or protection." (§ 1152; M.B. Zaninovich, Inc. v. Agricultural Labor Relations Bd. (1981) 114 Cal.App.3d 665, 675, 679, 171 Cal.Rptr. 55; Nagata Brothers Farms (1979) 5 A.L.R.B. No. 39, p. 2; cf. Gorman, Basic Text on Labor Law (19......