Martori Brothers Distributors v. Agricultural Labor Relations Bd.

• Decision Date: 27 July 1981
• Citation: 175 Cal.Rptr. 626,631 P.2d 60,29 Cal.3d 721
• Court: California Supreme Court
• Parties: , 631 P.2d 60, 95 Lab.Cas. P 55,371 MARTORI BROTHERS DISTRIBUTORS, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; Heriberto SILVA, et al., Real Parties in Interest. L.A. 31310.

Page 626

175 Cal.Rptr. 626

29 Cal.3d 721, 631 P.2d 60, 95 Lab.Cas. P 55,371

MARTORI BROTHERS DISTRIBUTORS, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent Heriberto SILVA, et al., Real Parties in Interest.

L.A. 31310.

Supreme Court of California.

July 27, 1981.

Rehearing Denied Aug. 26, 1981.

Dressler, Stoll, Quesenbery, Laws & Barsamian, Dressler, Stoll, Hersh & Quesenbery, Marion I. Quesenbery, Charley M. Stoll, Laurie A. Laws, El Centro, Nancy D. Bauer, San Diego, and Robert P. Roy, Newport Beach, for petitioner.

Ellen Lake, Manuel M. Medeiros and Daniel G. Stone, Sacramento, for respondent.

Marco E. Lopez, Carlos Alacala, Francis E. Fernandez, Carmen S. Flores, Jerome Cohen, Keene, William H. Carder, San Francisco, Ellen S. Greenstone, Keene, Sanford N. Nathan, San Francisco, and Thomas Dalzell, III, Salinas, for real parties in interest.

BY THE COURT: ^*

Martori Brothers Distributors, a partnership employing agricultural workers, petitions to review an order of Agricultural Labor Relations Board (board) which found that petitioner had committed an unfair labor practice in terminating Heriberto Silva from employment on January 11, 1978. We will remand the case to the board for further proceedings.

Silva worked for petitioner in Arizona during the 1966-1969 crop seasons. On December 9, 1976, he was hired by petitioner for the 1976-1977 season for lettuce cultivation and harvesting in the Imperial Valley. During these periods Silva with the knowledge of petitioner engaged in extensive activities on behalf of the United Farm Workers of America, AFL-CIO.

1. 1977 Discharge.

On January 6, 1977, Silva was discharged by Steven Martori, one of the petitioner's partners, following a confrontation which occurred in the field between Edward Martori, Steven Martori's cousin, and Silva during which the latter demanded duties as a stitcher rather than as a cutter. Edward advised Silva that petitioner had sufficient stitchers but Silva insisted that Edward should replace one of them. During this exchange Silva "got completely distraught and was raising his hands yelling and screaming obscenities about Edward and his family" and threatened "to get the Martoris." Edward reported the incident to Steven who advised Silva that a stitcher would not be replaced in the middle of the day, but that Silva could change jobs the next day.

Later during the afternoon of the same day Silva continued his argument, this time with Steven in petitioner's office, telling Steven how petitioner's farm should be run. There were a number of persons in the office and Silva was described as "screaming" and "rambling," causing a "big, blown-up commotion he was just going crazy." Although termination of employment had not previously been mentioned, Silva inquired of Steven, "are you trying to tell me I'm fired?" and Steven told him that if he wanted to be fired, he was fired. Silva left the office shouting that he was going to talk to Cesar Chavez and his attorneys, and that they soon would be running the farm and "would get" all the Martoris.

The following morning Silva distributed leaflets and talked to petitioner's workers. Steven told Silva that under the access rule he had no right to be there after work commenced and asked him to leave. After a lengthy discussion Silva left.

Silva thereupon filed a complaint with the board through the United Farm Workers union claiming that his discharge was an unfair labor practice, motivated by his efforts to organize workers. He was rehired the following day pending the outcome of the hearing on his discharge. At the ensuing hearing, Steven testified that the reason for the rehiring was, in accordance with labor law custom, financial, i. e., to mitigate damages if Silva prevailed the employer would be required to pay for lost hours whether or not actually worked.

After Silva's reemployment, another confrontation occurred. Although he was then working as a stitcher Silva decided he would rather be a cutter. He left his machine repeatedly and went into the field to cut lettuce. A few days later he quit by not appearing for work.

After a hearing in March 1977, before the board on the unfair practice complaint, Silva repeated his threats against Steven and his family. Steven testified that a number of employees complained to him of threats made by Silva. One employee said Silva came to his residence and demanded that the two go behind the home and fight.

The board found that Silva had been insubordinate and that his abusive behavior had goaded his employer into firing him. The board thereupon concluded that Silva's discharge was lawful and was not motivated by union activities. (4 A.L.R.B. 80.)

2. 1978 Discharge.

Steven testified in the present board proceedings that he had instructed his foremen not to rehire Silva. However, Silva was rehired by one of petitioner's foremen, Juan Martinez, on January 6, 1978.

While there was no substantial dispute as to events occurring in 1977, there is substantial dispute regarding the 1978 discharge. Silva testified that he was working for another company before January 6 but he wanted to return to petitioner because the pay was better. On the morning of January 6, in Calexico, Silva accompanied a friend to the Martori farm to pick up his friend's check, at which time Juan Martinez, a Martori employee, offered Silva a job. Silva began work immediately without notifying his prior employer. Before and after work on his third work day in 1978 Silva circulated a petition among his fellow workers, urging that petitioner be required to enter into a collective bargaining contract with United Farm Workers. One of the Martori foremen observed him circulating the petition.

Before work on the morning of Silva's fifth employment day of 1978, some Martori employees discussed with him their right to payment for repacking rain-damaged boxes. After a few words, a foreman approached Silva and the employees and stated to them that they would be paid for all the boxes. Steven was some distance away and was unable to hear this discussion.

As the workers dispersed to go to work, Steven recognized Silva and asked him what he was doing there. He responded he had been hired by Juan Martinez and was working for petitioner. Steven replied, "No you're not." Silva asked why. Steven's precise answer is disputed. Silva testified that Steven said he could not keep Silva after the damage done at the 1977 hearings. Steven's version was that he told Silva that he was discharged because of the prior threats against him and his family. After consulting Juan Martinez, Steven told Silva that he was dismissed but could work the rest of the day.

Steven testified that he had not noticed Silva until the day of discharge. Between the periods of the 1977 and 1978 employment, Silva had grown a full beard. Silva insisted that he was working in the fields during the period that Steven observed the workers, and on one occasion while leaving the field with other workers, had passed within four feet of Steven. ¹

At the end of the day Silva was discharged with approximately 10 other workers for lack of work. There is no evidence that the other discharged workers were active in union activities.

One worker testified that he heard Juan Martinez state that Silva had caused many problems, had filed a complaint which would cost petitioner millions of dollars, and because it was necessary to terminate some workers Martinez would take that opportunity to terminate Silva. Martinez testified he had terminated troublemakers first, and that he was told by Steven that Silva was to be fired. ²

On the day after the discharge, Silva returned to the field and confronted Steven. He was told twice to leave the field but refused. Steven then physically removed him from the field.

The administrative law officer (ALO) concluded that Silva was unlawfully terminated in 1978 for his union activities, for filing charges and for testimony at board hearings. The ALO moreover found that Silva had made no "personal threats of any kind," and the occasional disturbing remarks were overlooked by the employer in rehiring him. The ALO had observed Silva with and without a beard and concluded that it was incredible that anyone would not recognize Silva with a beard and that if he was really a troublemaker he would have been terminated immediately rather than at the end of the day. The ALO also concluded that the claimed justification for the discharge was a mere pretext and that the employer violated Labor Code section 1153, subdivisions (a), (c) and (d). ³

The board concluded that the ALO had correctly resolved the claimed justification for the discharge as a pretext. The board further noted that the initial threats did not prompt any discipline and that Silva was reinstated shortly thereafter. It concluded that Steven's condonation of past threats and the statements attributed to Steven and Juan demonstrated that Silva's union activities were the motivating reasons for his discharge.

Findings of the board with respect to questions of fact are conclusive if supported by substantial evidence on the record considered as a whole. (Lab.Code, § 1160.8; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 343-346, 156 Cal.Rptr. 1, 595 P.2d 579.) While the administrative agency under this test is empowered to resolve conflicts in the evidence and to make its own credibility determination, "the test of substantiality must be measured on the basis of the entire record, rather than by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317, 90 Cal.Rptr. 355, 475 P.2d 451; LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 635 et seq., 83 Cal.Rptr. 208, 463 P.2d 432; Royal Packing Co. v. Agricultural Labor Relations Bd. (1980) 101...