Perry Farms, Inc. v. Agricultural Labor Relations Bd.

• Decision Date: 17 November 1978
• Docket Number: AFL-CI,R
• Citation: 86 Cal.App.3d 448,150 Cal.Rptr. 495
• Court: California Court of Appeals Court of Appeals
• Parties: , 88 Lab.Cas. P 55,218 PERRY FARMS, INC., a California Corporation, Lathrop Farm Labor Center, Inc., a California Corporation, Ernest Perry, an Individual, Petitioners, v. The AGRICULTURAL LABOR RELATIONS BOARD OF the STATE of California, Respondent; The UNITED FARM WORKERS OF AMERICA,eal Party in Interest. Civ. 17800.

Page 495

150 Cal.Rptr. 495

86 Cal.App.3d 448, 88 Lab.Cas. P 55,218

PERRY FARMS, INC., a California Corporation, Lathrop Farm Labor Center, Inc., a California Corporation, Ernest Perry, an Individual, Petitioners, v. The AGRICULTURAL LABOR RELATIONS BOARD OF the STATE of California, Respondent The UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

Civ. 17800.

Court of Appeal, Third District, California.

Nov. 17, 1978.

Dressler, Stoll & Jacobs, Donald G. Dressler, Newport Beach, amicus curiae for petitioners.

Nomellini & Grilli, Stockton, for petitioner.

Ronald M. Telanoff, Administrative Law Officer, Los Angeles, for respondent.

REGAN, Associate Justice.

On June 23, 1978, we issued a writ of review, pursuant to Labor Code section 1160.8, ¹ to examine petitioners' claim that respondent board exceeded its lawful authority in several material respects in "In the Matter of PERRY FARMS, INC., Respondent, and UNITED FARM WORKERS OF AMERICA, AFL-CIO, Charging Party," Case No. 76-CE-1-S, Decision and Order 4 ALRB No. 25.

The critical matters under review are the findings that petitioners Ernest Perry, Lathrop Farm Labor Center, Inc., and Perry Farms, Inc., constitute a single employer within the meaning of the Agricultural Labor Relations Act (ALRA) and that such employer was guilty of specific unfair labor practices including that of failing and refusing to bargain with a labor organization which had been validly certified as the collective bargaining agent of its employees pursuant to a proper election. ² Petitioners also challenge (1) the board's ultimate determination that the "make whole remedy" set forth in section 1160.3 was appropriately applied herein; (2) the judicial power of the board; and (3) the application of the substantial evidence rule to judicial review of the board's decisions.

Petitioner Ernest Perry is the sole stockholder and president of Perry Farms, Inc. (PFI), a California corporation. All other corporate offices are held by Leonard Loduca. PFI has owned no land for several years and had no employees in 1975, but has leased land through 1975 which was custom farmed and harvested by petitioner Lathrop Farm Labor Center, Inc. (LFLC). LFLC, also a California corporation, is equally owned by Ernest Perry and Leonard Loduca, Perry holding the office of president and Loduca all other offices. Loduca's only function for LFLC is the maintenance of the various farming vehicles and machinery owned by the corporation; all other corporate functions, including management and operational decisions, are performed by Ernest Perry. LFLC operates variously, at Perry's decision alone, as a farm labor contractor, a custom farmer, and custom harvester. Both corporations have the same address and telephone, share a post office box and operate out of an office a few hundred feet from Ernest Perry's home. The business phone rings both in the office and in Perry's home.

On August 30, 1975, approximately 180 LFLC employees were harvesting tomatoes on a field owned by Hatanko-Ota. The tomato crop itself was owned by Perry, either personally or as LFLC. On that morning, organizers for real party, the United Farm Workers, AFL-CIO (UFW) entered the field and began obtaining representation authorization cards from the employees. Loduca was on the land at the time and observed the peaceful solicitation of employees. At some time in the morning, Ernest Perry came to the field and attempted to stop the union solicitation. A scuffle ensued with one of the organizers and an attempt was made by Perry to destroy the authorization cards. The solicitation continued after the scuffle however, and 180 LFLC employees on the field ultimately gave the UFW organizers authorization cards which were submitted to the ALRB. These employees identified Perry as their employer. On the basis of this solicitation, a petition was filed with the ALRB requesting that an election be held of this employee unit, pursuant to section 1156.3. The petition listed the name of employer as Ernest Perry/Ernest Perry Farms, its representative as Ernest Perry and provided his phone number, which number was also the number for Perry Farms and LFLC. Similarly the address given was that used by all entities. The nature of the employer's commodity was listed as tomatoes and the bargaining unit defined as "(t)omato fields in San Joaquin County where tomatoes are grown by and/or purchased and/or harvested by the agricultural employer." The petition further recited that the bargaining unit was to include all of that employer's agricultural employees in the State of California. The petition numbered the unit as 180 and, among other things, indicated that there had been 140 employees who participated in a strike involving the stated unit in July 1974.

A copy of the petition was served upon Ernest Perry together with notice of the pertinent provisions of section 20310 of the ALRB's regulations which impose upon an employer the obligation to provide to the board or its designated agent certain information about the bargaining unit. The regulation further provides that failure "to effect timely compliance with these requirements may give rise to any or all" of certain specified presumptions regarding the unit and voter eligibility. ³ Also required to be furnished by the employer is identification of its agent within the county who is to receive subsequent communications regarding the petition.

On September 2, 1975, the same day that the petition was filed and served, the board noticed an election of the above-stated bargaining unit to be held on September 9, 1975, at St. Mary's Church in Stockton. The direction and notice of election directed the appearance of all parties at a pre-election conference one-half hour before the election.

Perry's response to service of the petition was a telegram which advised the board that the proper name of the employer was Perry Farms, Inc., and that its agent was Ernest Perry. Perry's reply also stated that Perry Farms, Inc., had No employees on its payroll for calendar year 1975 and had not been struck within the last 36 months.

The board's regional director, Apolinar Aguilar, was unable to reach Mr. Perry to clear up the inconsistency raised by Perry's telegram and the further inconsistency of which he was aware surrounding the identity of the employer, i. e., was the employer Ernest Perry, PFI or LFLC? Although the workers solicited in the field had identified themselves as employees of Perry, they had also shown to the organizers work cards which identified them as LFLC employees.

Section 1156.3 charges the board with the duty to investigate the allegations of a petition and to determine their validity before setting up an election. While emergency regulation 20310 provides that certain presumptions regarding the nature of the bargaining unit may be applied in the event the employer fails to furnish the necessary information, the regulation does not abrogate the board's function. Here, Aguilar testified that he was unable to reach the employer who is the usual source relied upon for the necessary investigation. Aguilar spent 15 minutes consulting with UFW personnel with respect to the confusion between LFLC, PFI and Ernest Perry, and then proceeded with the election identifying the employer as PFI. Aguilar did however reschedule the preelection conference in an attempt to obtain Mr. Perry's presence and thus information from him. Aguilar's attempts to contact Perry failed, notwithstanding repeated telephone calls and finally a telegram. In any event, the election was held as scheduled despite Aguilar's failure to obtain clarification of the situation.

One hundred thirty people appeared to vote at the September 9 election, and a majority of the ballots were cast in favor of the UFW as the representative of this employee unit. The voters identified themselves as employees eligible to vote by showing to the board officials conducting the election items such as pay stubs from LFLC or from Perry personally. During the initial solicitation in the field the workers had identified themselves as employees of "Perry", despite the fact that their work cards bore the LFLC designation.

The tally of ballots setting forth the result was dated September 10, 1975, and was received by Perry on or about September 12. Perry, on September 13, filed a petition objecting to the election.

Four grounds of objection were asserted: (1) that PFI had no employees and that the board had been so notified and had further been notified that other information on the petition was incorrect; (2) that neither PFI nor its agent was given due notice of the election pursuant to section 1156.3, subdivision (a); (3) that employees of a labor contractor cannot constitutionally be attributed to the person engaging such contractor; and (4) "(t)he voters in the alleged election were willfully arranged as employees by UFW AFL-CIO for the primary purpose of voting in the election contrary to and in violation of Section 1154.6 of the Act." Service of these objections was not made upon the UFW until September 19, 1975, at the earliest.

Section 1156.3 provides that a petition objecting to an election must be filed within five days after the election. The board's emergency regulations, in section 20365, similarly provide for a five-day filing, but further require that the petition be accompanied with supporting declarations where necessary and with a declaration of service of the petition and accompanying papers upon all other parties. (Cal.Admin.Code, tit. 8, § 20365, subd. (a).) Subdivision (b) of the emergency regulation provides that where it is asserted that the geographical scope of the bargaining unit has been improperly determined or the allegations of the petition for election are incorrect, "the petition shall contain a detailed statement of the facts and law relied upon." PFI's petition was dismissed subsequently by the board on...