Nash-DeCamp Co. v. Agricultural Labor Relations Bd.

• Decision Date: 16 August 1983
• Docket Number: AFL-CI,R,NASH-D
• Citation: 146 Cal.App.3d 92,193 Cal.Rptr. 910
• Parties: eCAMP COMPANY, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest. Civ. 7045.
• Court: California Court of Appeals Court of Appeals

Page 910

193 Cal.Rptr. 910

146 Cal.App.3d 92

NASH-DeCAMP COMPANY, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

Civ. 7045.

Court of Appeal, Fifth District, California.

Aug. 16, 1983.

[146 Cal.App.3d 95] Littler, Mendelson, Fastiff & Tichy, Michael J. Hogan and Spencer H. Hipp, Fresno, for petitioner.

Manuel M. Medeiros, Daniel G. Stone, Ismael Castro, Agr. Labor Relations Bd., Sacramento, for respondent.

Daniel A. Garcia, Legal Dept., United Farm Workers of America, AFL-CIO, Keene, for real party in interest.

OPINION

WOOLPERT, Associate Justice.

This court must decide whether pursuit of an alleged recent underpayment in the checks of an employee and his wife constitute protected "concerted activity" for the purpose of mutual aid or protection as defined in Labor Code section 1152 and protected under Labor Code section 1153, subdivision (a). After having extensively researched case authority in this area under the California Agricultural Labor Relations Act, the National Labor Relations Act and the federal circuits, we hold that under the particular facts of this case, such action is not concerted activity.

THE PROCEEDINGS

Nash-DeCamp Company (hereafter the Company or Nash) was in the business of producing table and juice grapes at the Nash-DeCamp Vineyards in Tulare County in 1980. ¹ Michael Anderson was the ranch manager charged with overall responsibility for the operation; Ricardo Bautista was one of two foremen and employed several crews totalling 30-40 workers in the fall harvest.

The United Farm Workers (UFW) had petitioned for and won a certification election at the vineyard on September 25. Objections were filed and the election results had not been certified at the time the sole charge brought here for review arose (Oct. 29) or was taken to hearing (Feb. 1981).

Nine charges were filed with the Agricultural Labor Relations Board (Board or ALRB). A consolidated administrative law hearing was heard in February 1981. During the course of the hearing before the Administrative Law Officer (ALO) the parties reached a written settlement agreement on six of the nine charges, and those charges were dismissed. Of the remaining three charges, only the instant charge was later found to be supported by a preponderance of the evidence.

The ALO concluded that Javier Alvarado (Alvarado) was terminated by Anderson on October 29 for engaging in concerted activity protected by Labor Code section 1152, in violation of Labor Code section 1153, subdivisions (a) and (c), i.e., for pressing a pay dispute with Bautista on his and his wife's behalf. ² The ALO recommended Alvarado be reinstated and made whole for any economic losses suffered as a result of his unlawful discharge.

The rulings, findings and conclusions of the ALO on the Alvarado charge was affirmed by the ALRB in decision 8 A.L.R.B. No. 5, issued January 25, 1982.

Pursuant to section 1160.8, a petition for writ of review was filed in this court by Nash on February 23, 1982. The only briefs filed were by the Company and Board. ³

Summary of Argument

In its original briefs, Nash raised two issues challenging the ALO/ Board findings and conclusions regarding Alvarado's termination on October 29. First, Nash alleged there was no substantial evidence on the whole of the record to support the finding Nash violated section 1153, subdivisions (a) and (c) ⁴ by discharging Alvarado on October 29 for engaging in protected concerted activity. Finally, Nash contended Alvarado quit his job on October 28 and was not discharged.

This court ordered supplemental briefing on the application of "concerted activity" to the facts. A writ of review then issued. Counsel for UFW participated in oral argument, disagreeing with Company's contention that Alvarado was not engaged in concerted activity.

Introduction to Analysis

The ALO, and therefore the Board, concluded that "[t]here is little dispute about the facts ...." Because we agree to the lack of dispute, but find it necessary to more fully state the facts on certain points than the ALO, we preface our factual statements with the following appellate guidelines.

Section 1148 provides that "[t]he board shall follow applicable precedents of the National Labor Relations Act, as amended." Our Supreme Court has found it useful to begin its analysis of comparable statutory provisions with a review of the governing federal precedents. (Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 318, 172 Cal.Rptr. 720, 625 P.2d 263.) We will be doing so. First, however, this standard of review applies:

"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.' [Citations.]" (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 727-728, 175 Cal.Rptr. 626, 631 P.2d 60.)

The comparable federal standard has been viewed in these terms:

"[C]ourts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function.... The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." (Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456.)

The Universal Camera Corp. rule has been characterized as follows:

"This 'limited' scope of review does not, however, require us to abdicate our responsibility to the extent of merely 'rubberstamping' our affirmance of the Board's decision when, after full review of the record, including the evidence opposed to the Board's views, we are unable conscientiously to conclude that the evidence supporting such decision is substantial...."

...." (N.L.R.B. v. O.A. Fuller Super Markets, Inc. (5th Cir.1967) 374 F.2d 197, 200.)

For another version of the rule as applied in a concerted activity case:

"It is incumbent on general counsel of the Board to prove unlawful conduct and unlawful purpose is not lightly to be inferred. National Labor Relations Board v. Federal Pacific Electric Company, 441 F.2d 765 (5th Cir.1971). And while ascribing proper weight to credibility determinations of the Trial Examiner and the Board, it is the duty of this court to review the record as a whole to determine whether there exists substantial evidence to support the Board. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Mere suspicions of unlawful motivation are not sufficient to constitute substantial evidence. Lozano Enterprises v. National Labor Relations Board, 357 F.2d 500 (9th Cir.1966). Substantial evidence is more than a mere scintilla. It means such evidence as a reasonable mind might accept as adequate to support a conclusion. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938)." (N.L.R.B. v. Meinholdt Manufacturing, Inc. (10th Cir.1971) 451 F.2d 737, 738; see also Royal Packing Co. v. Agricultural Labor Relations Bd. (1980) 101 Cal.App.3d 826, 835-837, 161 Cal.Rptr. 870.)

The "Undisputed" Facts

Union Activity

Alvarado began working for the Company in December 1977. During the fall of 1980, Alvarado and his wife were members of one of approximately ten harvest crews under the supervision of Foreman Bautista. Harvest crews worked in units of three to five people: one person packed grapes at a table or trailer while the others picked. In late September, Alvarado's harvest crew numbered four: Alvarado, his sister Martha Ruiz, and Juan Gomez were the pickers and Alvarado's wife, Elsie, was the packer.

Bautista was aware Alvarado and his parents, Aurelio and Anna Maria, also Company employees, were involved in the union organization at Nash. Bautista was aware of the two organizational meetings held in September at the elder Alvarado's house, which Javier Alvarado attended.

At the hearing, Bautista portrayed himself as disinterested in the election outcome; his supervisor, Anderson, candidly admitted both he and Bautista opposed the union. In her recommended decision the ALO made this finding: "Alvarado's union support was not particularly noteworthy, no overt reprisals were made against more prominent supporters, and no action was taken against him until a month after the election." Therefore we limit our factual recitals to those pertinent to the Board decision.

The Pay Dispute

Near the end of September, Alvarado and Bautista engaged in a pay dispute. At the beginning of one workday, Alvarado approached Bautista, who was sitting in his car, and told him he thought both his and his wife's paychecks were short $2 for each of the last two weeks ($8 total underpayment). Alvarado thought he could prove there had been an underpayment. Bautista questioned why he had waited two weeks to report the alleged shortages; Alvarado responded he thought the errors would have been rectified in the following checks; when they were not he promptly reported the problem. According to Alvarado, Bautista told...