Superior Farming Co. v. Agricultural Labor Relations Bd.

• Citation: 198 Cal.Rptr. 608,151 Cal.App.3d 100
• Parties: SUPERIOR FARMING COMPANY, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; Guadalupe ALVAREZ et al., Real Parties in Interest. Civ. 6872 (F000333).
• Decision Date: 23 January 1984
• Court: California Court of Appeals

Page 608

198 Cal.Rptr. 608

151 Cal.App.3d 100

SUPERIOR FARMING COMPANY, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent Guadalupe ALVAREZ et al., Real Parties in Interest.

Civ. 6872 (F000333).

Court of Appeal, Fifth District, California.

Jan. 23, 1984.

Hearing Denied April 18, 1984.

Quinlan, Kershaw, Fanucchi & Hoffman, and William A. Quinlan, Fresno, for petitioner.

Manuel M. Medeiros, Daniel G. Stone, Suzanne Vaupel and Nancy C. Smith, Agricultural Labor Relations Bd., Sacramento, for respondent.

No appearance for real parties in interest.

Dianna Lyons, Federico G. Chavez, Ellen Eggers, Daniel A. Garcia, Ira Gottlieb and Wendy Sones, Appellate Dept., United Farm Workers of America, AFL-CIO, Sacramento, for amici curiae on behalf of real parties in interest.

OPINION

HAMLIN, Associate Justice.

Superior Farming Co., Inc. (Superior) petitions for review of a decision of the Agricultural Labor Relations Board (Board) that Superior committed an unfair labor practice in violation of section 1153, subdivision (a), of the Agricultural Labor Relations Act of 1975 (ALRA or Act) (Lab.Code, § 1140 et seq.) ¹ by discharging members of a harvesting crew because of their protest against Superior's wage rates.

Guadalupe Gutierrez Zacarias filed the unfair labor practice charge with the Board on June 12, 1979. Following an investigation, the Board's Fresno regional director issued a complaint against Superior, alleging Superior violated section 1153, subdivision (a), by discharging Zacarias and his harvesting crew because they had engaged in protected concerted activity. An administrative law officer (ALO) heard the complaint and recommended findings that the crew had not been terminated and that, because Zacarias was not a "supervisor" within the meaning of the Act, his actions were not imputable to Superior. The Board's general counsel filed exceptions and the Board affirmed the ALO's rulings and conclusions as modified. Specifically, although the Board agreed with the ALO's decisions on witness credibility, the Board concluded that a discharge had occurred and that Zacarias' action in so informing the crew, though mistaken, was imputable to Superior. The Board ordered reinstatement, backpay, and make-whole relief, but determined that in the absence of retaliatory intent and in view of the "uniqueness of the situation," posting, mailing and reading of the Board's "standard notice" were not required. Further, the Board adopted the ALO's recommendation and dismissed the allegations of the complaint which asserted the discharge of Zacarias was an unfair labor practice.

Superior's petition for review requires us to decide, among other things, whether the action of a crew leader in mistakenly informing members of his crew they (including him) were fired, when the employer had not so ordered or authorized, is imputable to the employer. Under the circumstances of this case we will conclude that such action must be imputed to the employer under the rationale of Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 172 Cal.Rptr. 720, 625 P.2d 263.

Superior's contentions present additional issues which we similarly resolve against Superior. Therefore, we will enforce the Board's order.

THE FACTS

Superior is an agricultural employer engaged in, among other things, the cultivation and harvesting of various types of "stone fruit," including peaches, apricots and plums. The events at issue took place during the 1979 plum harvest at a Superior farm in Kern County. Zacarias, real party herein and one of the alleged dischargees, was hired as a fieldworker for Superior in late 1978. The following March, Superior made Zacarias a foreman of an apricot-thinning crew and directed him to hire the crew members. When the labor supervisor Aurelio Menchaca, became aware that the crew Zacarias had purported to hire was inexperienced in thinning stone fruit, Menchaca declined to hire the crew members as Superior employees. Instead, he had them assigned to the payroll of labor contractor Jose Rodriguez.

As crew leader Zacarias was directly responsible to the ranch supervisor. He regularly translated the supervisor's instructions into Spanish for the crew and the crew's complaints into English to the supervisor. At times Zacarias was directed to lay off workers who did not meet Superior's productivity standards but never did so without instructions from the supervisor. Zacarias also supplied contractor Rodriguez with daily crew lists.

The crew worked at a piece rate. Superior had a policy of guaranteeing an hourly minimum wage of $3.25 to workers supplied by a labor contractor whose production was insufficient to earn that minimum at the piece rate. However, that policy was never communicated to Zacarias.

On May 28 the crew began thinning plums. The plum harvest was directed by Martin Veiss, a Superior supervisor. When Veiss arrived at the plum orchard on May 28, he instructed Zacarias about the correct size and color of plums to be picked and had Zacarias pass around a sample so the crew could "get the feel of it." Veiss informed Zacarias the piece rate would be 70 cents per bucket, but did not mention the hourly minimum. Zacarias called the workers together and explained the pay rate and the way the work was to be done.

The crew experienced problems on the first day of picking. Veiss returned later and found that the crew was leaving ripe fruit on the trees. This prompted Veiss to instruct Zacarias several times during the day to have the crew redo trees already picked so ripe fruit would not be left behind. When Veiss asked Zacarias why the crew was having problems, Zacarias explained that 70 to 80 percent of the crew had never before picked stone fruit. On the first day no worker in the crew picked enough fruit to exceed the guaranteed hourly minimum of $3.25 and each was paid the minimum rate. Over the next two days the crew's production increased. The "first pick," i.e., the initial harvest of plums from the trees, was completed the morning of May 31. Veiss informed Zacarias the crew would repeat the process on the same trees in a "second pick" and that the piece rate for the second pick would be lowered from 70 cents to 60 cents per bucket. Veiss stated that the rate was changed because there would be more fruit to pick the second time around, and picking would not have to be as selective.

The "second pick" began in the late morning of May 31. At the close of work that day, two crew members complained to Veiss about the 60-cent rate and asked him if the 70-cent rate could be reinstated. Veiss told one worker he could not change the rate but would "ask the boss," that is, harvest coordinator Binardi, if something could be done. Veiss testified he spoke to Binardi that evening, but to no avail. Binardi in essence said the 60-cent rate was fair.

On the next day, June 1, the crew began working at the regular time--about 6:30 a.m. After the crew had worked over an hour, Veiss visited the crew at the picking site. He immediately saw that many of the plums were too small for harvesting and showed the undersized fruit to Zacarias. Zacarias then gathered the crew at the bin and demonstrated the problem of undersized fruit by passing some of the fruit through a sizing ring. After that he passed a plum of minimum acceptable size among the crew members for them to "get the feel of it."

After the demonstration, a crew worker asked Veiss if he had obtained a rate raise for the crew. Veiss answered he had not. Another worker asked Veiss if he could raise the rate to the 70-cent level of the first pick. Veiss replied he could not set the rates and that the matter was out of his hands.

The crew appeared to Veiss to be "not too happy." After about 10 minutes and further discussions, Veiss felt unsure whether they were willing to return to work at the 60-cent rate. He called Zacarias aside and told him, "Well, the price is set, and the crew either has to go in to work or they would [sic ] have to go home." At the time Veiss made this statement, he angrily threw some plums to the ground and told the workers to take the ladders out of the trees or they would not be paid for the day.

As Veiss started to leave, Zacarias approached him and said he wanted to speak to Menchaca, the labor coordinator. Veiss radioed Menchaca and requested that he come out and speak to the crew, but Menchaca was unable to do so. Veiss then went to the office and informed Menchaca that the crew wanted a rate raise and that he didn't think they were going to work without that raise. Menchaca said he would contact Rodriguez and take care of the matter. As Veiss was leaving, Menchaca told him: "Okay, you've already told them that [i.e., that Veiss would not raise the rate]; leave them [the crew] alone."

Zacarias also went to Menchaca and told him the crew members wanted a raise because they "weren't making wages." Menchaca replied he would try to contact labor contractor Rodriguez and send him to "straighten this deal out." At that point, Rodriguez arrived. In an effort to keep the crew working, Menchaca instructed Rodriguez to tell the crew members they were guaranteed an hourly minimum if they did not make the equivalent at the piece rate. Menchaca further stated that, if the rates were wrong, they would be adjusted later. Rodriguez then went into the office to get some blank timesheets, stating he would be "over there in one second." Zacarias was present during Menchaca's conversation with Rodriguez.

In the meantime, Veiss, after he spoke with Menchaca, had returned to the orchard and was instructing a tree checker how to sucker grafted trees. He saw the crew standing on the outside of the tree rows and saw one or two cars leave the area. As he was leaving to visit his other crews, he saw Zacarias returning from the office. Veiss told Zacarias he had seen a couple of cars leave and if the crew was leaving to make...