United Farm Workers of Am. v. Agric. Labor Relations Bd.

Decision Date18 February 2022
Docket NumberF080469
PartiesUNITED FARM WORKERS OF AMERICA, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; AGUSTIN GARCIA et al., Real Parties in Interest; GERAWAN FARMING, INC., Intervenor.
CourtCalifornia Court of Appeals

UNITED FARM WORKERS OF AMERICA, Petitioner,
v.

AGRICULTURAL LABOR RELATIONS BOARD, Respondent;

AGUSTIN GARCIA et al., Real Parties in Interest; GERAWAN FARMING, INC., Intervenor.

F080469

California Court of Appeals, Fifth District

February 18, 2022


NOT TO BE PUBLISHED

ORIGINAL PROCEEDINGS; petition for review. (ALRB Case Nos. 45 ALRB No. 8, 45 ALRB No. 4 & 44 ALRB No. 10)

Martinez Aguilasocho & Lynch, Mario Martinez and Edgar Ivan Aguilasocho for Petitioner.

Santiago Avila-Gomez and Todd M. Ratshin for Respondent.

No appearance for Real Parties in Interest.

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Sheppard, Mullin, Richter & Hampton, David A. Schwarz, Valerie E. Alter; Barsamian & Moody and Ronald H. Barsamian for Intervenor.

OPINION

DESANTOS, J.

In 2013, the Agricultural Labor Relations Board (Board) ordered an election to decide whether to decertify an incumbent union (the United Farm Workers of America or UFW) based on an employee petition. Following the election, the Board impounded the ballots without tallying them pending resolution of whether misconduct by the employer, Gerawan Farming, Inc. (Gerawan), tainted the employees' decertification effort. Administrative proceedings were held and the Board nullified the election as a remedy for Gerawan's purported unfair labor practices. By petition for review under Labor Code section 1160.8, [1] Gerawan challenged both the Board's unfair labor practice findings and the remedy imposed of setting aside the election. In Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2018) 23 Cal.App.5th 1129 (Gerawan), we concluded the Board erred in several of its unfair labor practice findings as well as in the legal standard applied in reaching its remedial conclusions. Accordingly, we partially set aside the Board's decision, including its remedy, and remanded the matter for the Board to tally the votes and reconsider its election decision consistent with our opinion. (Id. at pp. 1141, 1240‒1241.)[2]

On remand, the Board tallied the votes, which were overwhelming against the UFW, and ordered the UFW decertified in Gerawan Farming, Inc. (2018) 44 ALRB No. 10 (the decertification order). To obtain review of the decertification order, the UFW threatened to picket Gerawan, a Gerawan employee filed an unfair labor practice charge

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against the UFW, and the Board's General Counsel instituted unfair labor practice proceedings against the UFW. Ultimately, the Board found the UFW committed an unfair labor practice.

The UFW filed a petition for review in this court under section 1160.8. The UFW, who contends it used the proper procedure to obtain review of the Board's decertification order, seeks to go back to the Board's initial decision to order the election arguing the Board did not have the statutory authority to do so and instead should have blocked the election based on the then unresolved unfair labor practice charges against Gerawan. The UFW also argues the Board erred when it decertified the union because it failed to properly analyze the record and consider the UFW's prior election challenges. We conclude the UFW forfeited its attempt to invalidate the election order and there is no merit to the UFW's challenges to the decertification order. Accordingly, we affirm the Board's decision.

FACTUAL AND PROCEDURAL BACKGROUND

The Board Orders the Election

On October 25, 2013, Gerawan farmworker Silvia Lopez filed a petition for decertification with the Board, signed by herself and a considerable number of her coworkers, seeking to allow Gerawan's agricultural workers to decide for themselves whether the UFW would continue to be their certified bargaining representative. (Gerawan, supra, 23 Cal.App.5th at pp. 1141‒1142.)[3]

On October 31, 2013, the Board's regional director issued a letter finding that while the petition made an adequate showing of interest pursuant to California Code of Regulations, title 8, section 20390, subdivision (b), the election should be blocked based

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on three pending unfair labor practice complaints against Gerawan.[4] The regional director stated those complaints would prevent him from finding a bona fide question of representation existed.[5]

The next day, the Board vacated the regional director's decision blocking the election and ordered an election be held on November 5, 2013, with the ballots impounded pending resolution of election objections and the unfair labor practice complaints. (Gerawan Farming, Inc. (2013) ALRB Admin. Order No. 2013-46, pp. 4‒5 (the election order).) The Board explained the unfair labor practice complaints were either insufficient to block the election, had been remedied by remedial efforts Gerawan agreed to, or had been issued during the investigation of the election petition. (Id. at pp. 2‒4.) The Board concluded "under the unique circumstances presented in this case, there are enough questions regarding the degree to which any taint has been remedied, as well as questions as to the appropriateness of relying on the late-filed complaint to block the election, to justify holding the election, impounding the ballots, and resolving these issues through election objections and litigation of the complaints." (Id. at p. 4.)

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The UFW challenged the election order by filing a motion to vacate the decision or, in the alternative, for reconsideration. (Gerawan Farming, Inc. (2013) ALRB Admin. Order No. 2013-49, p. 1.) While the Board found neither motion was procedurally proper, it considered the UFW's arguments and found them unavailing. As pertinent here, the UFW argued (1) the Board did not have authority to vacate the regional director's blocking decision because a request for review had not been filed, and (2) the Board was compelled to block the election because there was an outstanding unfair labor practice complaint that alleged a refusal to bargain. (Id. at pp. 2‒3.) In rejecting the arguments, the Board concluded it had sua sponte authority to review the blocking decision and could exercise its judgment to determine whether a pending unfair labor practice case would reasonably tend to affect employee choice and warrant blocking an election. (Id. at pp. 2‒3.) The Board explained its order represented its judgment the ALRA's policies were best served by holding the election, impounding the ballots, and allowing the issues to be resolved through election objections and litigation of the complaints. (Gerawan Farming, Inc., supra, ALRB Admin. Order No. 2013-49 at pp. 3-4.)

On November 5, 2013, the farmworkers at Gerawan cast their votes in a secret ballot election conducted by Board staff and the Board impounded the ballots without tallying them. (Gerawan, supra, 23 Cal.App.5th at p. 1142.)

The Consolidated ULP and Election Objection Administrative Proceedings

The UFW, Gerawan and Lopez each filed election objections. Of the UFW's 32 objections, the Board set one for a hearing, held others in abeyance pending resolution of the unfair labor practice charges and the counting of the ballots, and dismissed the rest. (Gerawan Farming, Inc. (2013) 39 ALRB No. 20 at pp. 1‒3.)

As relevant here, the Board again rejected the UFW's allegation "that the Board ordered the election without following the proper statutory procedure for seeking review of a Regional Director's decision to block the election." In response to the UFW's

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attempt to "resurrect[] the same argument" it previously raised, the Board reiterated its response from the order denying reconsideration:" 'Contrary to the UFW's argument, Labor Code section 1142, subdivision (b) does not preclude the Board from acting sua sponte to review a regional director's decision blocking an election." Since the Board already addressed and rejected the argument, it dismissed the objection. (Gerawan Farming, Inc., supra, 39 ALRB No. 20 at p. 27.)

The Board also dismissed the UFW's objection alleging Gerawan "engaged in bad faith bargaining through a proposal to exclude farm labor contractor employees from collective bargaining agreement" which "had a serious detrimental effect on employee free choice" for failure to provide sufficient declaratory support. (Gerawan Farming, Inc, supra, 39 ALRB No. 20 at pp. 16‒17.) The Board explained the complained of conduct occurred months before the election and "[t]he UFW did not include any declaratory information to support its allegation that the conduct tended to interfere with the employees' free choice to an extent that the outcome of the election could have been affected." (Ibid.)

Finally, the Board rejected as meritless the UFW's objection alleging the Board "exceeded its authority in ordering that the election take place because there was no finding that a bona fide question of representation existed." (Gerawan Farming, Inc., supra, 39 ALRB No. 20 at p. 26.) The Board explained when it "clearly stated" in the election order there were enough questions concerning the degree to which any taint had been remedied and the appropriateness of relying on a late-filed complaint to block the election to justify holding the election, it implicitly "found it reasonable to believe that a bona fide question concerning representation existed that justified holding the election." (Ibid.)

A consolidated evidentiary hearing commenced in September 2014 before an administrative law judge (ALJ) assigned by the Board to hear both the UFW's election

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objections and the general counsel of the Board's (the General Counsel's)[6] related claims that Gerawan committed unfair labor practices which allegedly impacted the validity of the decertification petition and required the election to be set aside.[7] (Gerawan, supra, 23 Cal.App.5th at pp. 1142‒1143.) After the conclusion of the evidentiary proceedings, the ALJ issued a written decision finding Gerawan committed pre-election unfair labor practices that, in the ALJ's view, tainted the decertification petition. (Id. at p. 1143.) As a remedy...

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