Harry Carian Sales v. Agricultural Labor Relations Board

Aug. No. [L.A. 31890. 1985.] SALES, Petitioner,

HARRY CARIAN v. BOARD, AGRICULTURAL LABOR RELATIONS Respondent; AMERICA, AFL-CIO, UNITED FARM WORKERS OF Real Party Interest.

Counsel Hall, Hall for Petitioner.

Smith & David E. Smith and James W. on behalf Amici Curiae Thomas F. Olson and Carl G. Borden as Petitioner. Christian, Medeiors, Stone, Ruth Rokeach

Manuel M. Daniel G. Cathy C. Smith for Nancy Respondent. Party Real

Dianna Daniel A. Garcia and Sones Lyons, Wendy Interest.

Opinion of a de review (HCS) seeks

GRODIN, J. Carian Sales Harry Employer Board) (ALRB finding Board Labor Relations Agricultural cision HCS to bargain ordering that HCS committed 30 unfair practices, (UFW). with the United Farm Workers authority has the ALRB

The in this case is whether issue raised principal for an remedy employ- as a order union and issue certify er’s unfair egregious labor the union has not won secret practices though ballot election. by such orders are issued Although frequently the National Labor in which (NLRB), Relations Board this is first case the ALRB has issued such an order. We that the ALRB does have conclude authority issue and that the Board’s order in this bargaining orders matter, case was that the Board’s As an initial we also conclude appropriate. evidence, unfair labor are al- practice substantial findings supported by two of though must be set aside on other eighteen challenged findings We therefore grounds. enforce the Board’s order.

HCS is a table In January in Coachella grape producer operating Valley. the UFW initiated an HCS’s em- organizational among campaign This included to the and labor ployees. campaign daily camps visits fields announcements, leaflets, union by radio organizers, weekly distribution UFW Pres- organizational and a march led meetings, highly publicized ident Cesar Chavez. 1977,

Between March and with the the UFW filed four May charges ALRB that HCS had committed a unfair labor alleging total of twenty-three (ALRA Act) in violation of or Labor Relations Act Agricultural (a) (c).1 section were consolidated subdivisions and These charges and heard (ALJ-1). administrative law In judge September ALJ-1 rendered a decision a number of HCS had committed finding 23 unfair labor practices charged.

Meanwhile, on June while ALJ-1’s decision was pending, held UFW filed a certification election was secret ballot petition HCS’s among tally on June The official agricultural 1977. UFW, of ballots showed 80 union and 142 votes for the 88 votes for no election. ballots. Both the UFW and HCS filed to the challenged objections addition, In the UFW filed additional unfair labor concern- charges practice ob- incidents that occurred the month of June. These ing allegedly during jections were consolidated and heard a second administrative charges (ALJ-2). law judge decision,

In December of ALJ-2 that HCS had finding rendered his committed a number of the unfair labor additional practices alleged seq. 1The ALRA is codified at 1140 et All section references are Labor Code section the Labor Code unless otherwise indicated. agri- Section for an provides pertinent part: practice “It be an unfair labor shall restrain, with, (a) or coerce employer any cultural to do To interfere following: ...(c) By agricultural employees guaranteed in 1152. rights in the exercise of the Section employment, any discrimination in term or condition regard hiring to the or tenure of or employment, encourage discourage membership any organization.” that the election be set aside. ALJ-2 also found that HCS’s recommending conduct and a fair rerun election sufficiently egregious preclude therefore recommended and order HCS to that ALRB the UFW certify with the union. bargain ALJs,

HCS and the UFW filed and all to the decision of both exceptions of these were On October exceptions consolidated and heard the ALRB. the Board issued a decision and affirming modifying part all, ALJs’ decisions. In the Board found that 30 unfair HCS had committed activities; labor practices. These violations included surveillance of union unlawful of HCS interrogation threats of and employees; discharge depor- tation; discriminatory and of violence hiring, layoffs acts discharges; against UFW increase; an organizers; and election-eve made illegal wage promises to HCS employees. Finding HCS’s and conduct “pervasive outrageous . . . clearly undermined the union’s chilled the union support, employees’ sentiment, a fair and precluded holding free election” the Board set election, aside the certified the UFW as the exclusive employees’ bargaining representative ordered HCS to with the UFW.2 bargain HCS challenges the Board’s as to 18 of the unfair labor findings practices as well charged,3 as the Board’s to issue a authority order as bargaining remedy for unfair labor practices.

I. Labor Practices

Unfair We will uphold Board’s unfair labor findings concerning prac if tices (Rivcom supported by substantial evidence on the whole record. 2Since HCS’s unfair pervasive require were so as to that the election be aside, set both ALJ-2 and the Board unnecessary objections found it to consider the other to the election or to challenged resolve the 142 opinion, ballots. As the Board stated in its though ballots, “Even there remain outstanding challenged the outcome of the election is Case, not determinative of (1978) whether a order should issue. Inc. NLRB L.R.R.M. Given large challenges, purpose [99 number of 1159]. no useful would delaying served the proceedings herein further to determine a final result of the During argument, election.” argued oral HCS for the first time that a order is and, therefore, appropriate only where the union loses election the Board should be required to challenged resolve the 142 prerequisite issuing bargaining ballots as a order. Although, generally, the Board deciding should determine the of an election before outcome appropriate on the remedy, agree we with the Board’s determination that under the facts of case, this there point going through time-consuming process was no complex very Moreover, resolving challenged the 142 issuing bargaining ballots before order. as HCS concedes, readily it could prejudiced by not have been to determine the the Board’s failure outcome of the tainted election. 3Although petition finding its to the of Appeal, challenged Court HCS the Board’s as to a practice, any 19th unfair labor support challenge argument HCS failed to this with or discussion. We sup must therefore assume that the record contains substantial evidence to port (See (1979) finding. Marriage Board’s In re Fink 25 Cal.3d 887 [160 Cal.Rptr. 881].) 603 P.2d v.

Corp. Agricultural Labor Relations Bd. 34 Cal.3d 757 course, the evi Cal.Rptr. P.2d “Of we do not reweigh decisions, dence. If there are is a basis for the Board’s factual we plausible reasonable, not concerned that seem to us contrary findings may equally (Citation (Rivcom, even more so.” 756- omitted.) 34 Cal.3d at pp. Furthermore, those and conclusions that are within findings (Rivcom, Board’s realm of are supra, entitled to deference. special expertise And, 34 Cal.3d at credibility because the evaluation of witnesses’ p. fact, is a matter on for the trier of the Board’s based particularly findings of witnesses will not be unless the is credibility testimony disturbed Co., “incredible or v. (Montebello Ag Rose Inc. inherently improbable.” ricultural Labor (1981) Relations Bd. 20 Cal.Rptr. 119 Cal.App.3d [173 Farms, 856]; Perry (1978) Inc. v. Bd. 86 Labor Relations Agricultural Cal.App.3d 495].) 463-464 Cal.Rptr. [150 review, evi these standards of we conclude there is substantial Applying dence to labor on all unfair support challenged Board’s findings of due practice as we shall considerations charges although, process explain, require findings concerning uncharged that the two incidents be set aside. agree Appeal's analysis challenged * We with the Court of of the rel and the Court our own. The findings, discussion as adopt Appeal’s evant of the Court of out in an portion appendix. set Appeal’s opinion

II. ALRB’s Orders Authority to Issue Bargaining discussion of Any orders must with a discussion bargaining begin Court’s in NLRB v. U.S. Supreme decision Gissel Co. 395 Packing L.Ed.2d reaffirmed the 89 S.Ct. The court Gissel [23 1918]. NLRB’s where an authority issue orders as a remedy employer has committed “unfair holding labor which have made practices fair election or which have in fact undermined a union’s unlikely majority (Id., and caused an L.Ed.2d at election to be set aside.” at p. [23 a cease- The court reasoned that the Board could enter only “[i]f rerun, in effect be and-desist order and direct an election or a it would and him ‘to from own rewarding employer wrongful allowing profit [his] [conduct],’ right while at the time severely curtailing employees’ same The freely employer determine whether desire a they representative. indefi could continue to off put the election delay disrupt processes circum- his election held under these nitely obligation any bargain; headnotes, appendix. *For material contained these see true, undistorted the employees’ would not be demonstrate likely stances and fns. 576], citations (Id., L.Ed.2d at 610-611 desires.” pp. [23 omitted.) labor of unfair categorization

The court established a tripartite Gissel though be issued could order a bargaining whether determining marked First, cases in “exceptional” the union had not won an election. issue may NLRB unfair practices, “outrageous” “pervasive” en- at one point union that the showing order even without L.Ed.2d 613-614 U.S. at (Gissel, pp. a card joyed majority.4 Cir. (3d v. N.L.R.B. Assn. 578]; Coop. see United Farmers Dairy at p. (D.C. v. N.L.R.B. 1054, 1066, 1069; Corp. F.2d but cf. Conair 1980) 633 Cir, 1377-1384.) 1983) 721 F.2d

Second, extraordinary “less orders in the NLRB issue may bargaining union the at one point . . . cases marked less by pervasive practices [where] the of erasing the had a . . . the Board finds that majority possibility [and] rerun) (or by a fair election of and of a fair ensuring effects past practices that remedies, employee slight of is though present, the use traditional balance, would, be better pro on sentiment once cards through expressed 614-615 U.S. at (Gissel, pp. a by [23 tected order.” bargaining 578].) L.Ed.2d at p. less held, of minor or category the court there is a “third

Finally, Gissel on which, minimal impact because of their extensive unfair labor practices, (Id., at p. order.” will not a machinery, bargaining the election sustain at L.Ed.2d p. ALRA, NLRA, nor expressly authorizes The like the neither expressly orders”—-i.e., or bargaining the “Gissel bargaining issuance of prohibits in the labor practices a unfair ders issued as remedy egregious employer case, order in In its issuing absence of an election won the union. by this 1160.3 to section under authority the ALRB relied on its remedial general by majority of signed majority” possession 4“Card refers to the of cards Under both the purposes. bargaining authorizing represent the union to them for collective ALRA, to cards are submitted (NLRA) Act and the authorization National Labor Relations addition, under petitions. In by support their election the labor boards unions in of directly made NLRA, demands bargaining by support unions to authorization cards are used demand, voluntarily recognizes If, employer bargaining employer. following union, election held. no .5 Act HCS argues such “relief as will effectuate the of” the provide policies that the authority sup of section 1160.3 is insufficient general language the lan HCS contrary, argues, Board’s order. On the port intent guage legislative of the ALRA demonstrate legislative history the issuance of orders. preclude Gissel bargaining with the HCS notes that of the ALRA correctly dealing those sections et refer (see only and certification of unions recognition seq.) § ex secret ballot union can become the elections as the means which a In clusive of a agricultural employees. representative group addition, held com legislative HCS from quotes extensively hearings enactment,6 of the ALRA mittees to the in which the drafters ALRA’s prior the ALRA only indicated that a union could obtain under recognition instance, hearings, a secret ballot For the Senate winning during election. that, Services, Bird, Chief stated Justice then Secretary Agriculture Act, “under our and that’s through we allow one only way recognition Com., a secret ballot election.” before Sen. Industrial Relations (Hearing authors, one of the bill’s May 51.) Senator Similarly, Dunlap, NLRA, ALRA, stated under a secret ballot unlike the “there is were made at the (Id., in all statements cases.” Similar [election] Berman, instance, another author For Assembly hearings. Assemblyman bill, else, secret ballot commented that the ALRA “above all requires Re Com. on Labor elections instance.” before Assem. every (Hearing lations, 12, 1975, 2.) May comments, by

In a law review article addition to these HCS from quotes to the a law consultant Professor Herman M. who acted as labor Levy article, Pro- ALRA. In his and Services in the Agriculture Agency drafting practice has an unfair labor provides, part, 5Section 1160.3 in that where the Board finds committed, and desist transgressor] been to cease requiring it “shall issue ... an order [the action, em including from reinstatement of practice, such unfair labor to take affirmative whole, deems ployees with or when the board pay, making without back and bargain, employer’s refusal to appropriate, pay resulting such relief for the loss of from the provide policies part.” and to the of this such other relief as will effectuate orders, 10(c) of the issuing language In in section the NLRB has relied on (See„ 160(c)] e.g., by in this case. NLRA U.S.C. identical to that relied on the Board [29 § 702, (1943) 64 L.Ed. Frank Bros. Co. v. Labor Board 321 U.S. 704-705 [88 817].) S.Ct. 1975; Committee, 21, Hearing before 6Hearing May before Senate Industrial Relations Relations, 12, hearings were recorded Assembly May Committee on Labor 1975. These May the legislative intent. At expressly purpose establishing concerning for the of a record 1975, “Well, 21, whole record that this hearing say let me for the Senator Zenovich stated: there will be a hearing being you purpose, so that is recorded as can see. And that’s a law, people can becomes the transpired record of what has ... so that if and when this bill (Hear intent.” respect legislative to the look the record to make some determination with 1975, Com., 21, May ing before Sen. Industrial Relations

223 a that, ALRA, by “The sole means which wrote under the Levy fessor as bargaining representative can achieve certification organization The Agri- board.” (Levy, win a ballot conducted the secret election El Para De cultural Labor Relations Act 1975—La Esperanza California 789-790, omitted.) fn. (1975) Futuro Law. Santa Clara provides There no doubt that the ALRA expressly seems be a union (i.e., elections) seeking one secret ballot which only means and that this recognition, of workers can obtain represent ordinarily group not necessarily It does intent of those who drafted legislation. follow, however, the Board from that the intended to prohibit Legislature remedy where employer’s order as an issuing bargaining extraordinary and have to hold free egregious unfair labor made it impossible intent fair election. we the Legislature’s On as shall contrary, explain, to the in was unrelated issue the means of union limiting recognition seem to re and the of the Act would bargaining orders express purpose to issue authority than Board quire—rather preclude—the having under orders certain circumstances. statutory

It is statutory language a cardinal rule of construction that than defeat “must such as will rather given interpretation promote (1950) 34 law.” v. Centr-O-Mart purpose (People general policy “ This, turn, 378].) us to ‘take into Cal.2d P.2d requires [214 remedied, view, context, to be account matters such as evils object history of the times the same legislation subject, public and of upon An (Cas v. Los City construction.’” sack policy, contemporaneous P.2d 11 Cal.3d geles Cal.Rptr. The legislation to the ALRA “In this preamble enacting states that: in the agricultural the State of seek peace California to ensure people stability fields for all workers guaranteeing justice agricultural relations, and sense certainty labor bring This enactment is intended [t] the condition in of fair to a and volatile play unstable presently potentially Sess., 1, (Stats. 1975, 4013.) More p. specifi- state.” Third Ex. ch. § of California section 1140.2 it is of the State cally, declares that “the policy full freedom and the of encourage protect right agricultural association, of their of of self-organization, designation representatives or coercion own . . . and to be the restraint interference, choosing free from (Italics ... in the of such employers designation representatives.” of added.) Gissel, the we to As the Court were recognized interpret Supreme orders, would the of bargaining employers ALRA issuance prohibit 224

free to commit unfair egregious of as a means union avoiding organization, election, a union in defeating an without fear of significant sanction. such an Clearly would defeat rather than interpretation promote the general Indeed, purpose of the Act. policy cases it would many make almost meaningless the agricultural to “be free from employees’ right interference, the restraint or coercion of ... in the employers designation representatives.” (§ 1140.2.) [their]

The fact that the Legislature restricted the which a union by means seek recognition could does not us to so at require adopt interpretation odds with the case, of the purpose Act. In its decision in the instant the ALRB noted that the elections, Legislature, secret was not requiring concerned with the Rather, propriety orders. the “evil” to be sought remedied the the by Legislature was voluntary recognition of unions by employers, so-called deals between especially “sweetheart” em ployers and unions who lacked the support This employees. Board, interpretation by with the “drawing familiarity history its upon ” of the ALRA and the ‘general the times’ must be understanding given great weight. (Highland Ranch v. Agricultural Labor Relations Bd. Cal.3d Moreover, 633 P.2d Cal.Rptr. [176 Board’s is interpretation the historical context of the Act fully by supported very comments HCS. quoted by enactment,

Prior to the ALRA’s the voluntary of unions recognition agricultural employers, often without even had consulting employees, become a major This problem. illustrated the facts graphically pre sented in Englund v. (1972) 8 Cal.3d 572 Cal.Rptr. Chavez P.2d In Englund, an association of in the 457]. Salinas growers Valley approached Teamsters union to “feel out” the prospects negotiating a bargaining agreement. The all 27 following day growers signed recogni tion agreements and, week, with the union within a all had executed 5-year exclusive “union Neither nor the shop” agreements. the Teamsters employ ers had informed or consulted the behalf whose employees, upon agree fact, noted, ments were In purportedly as the court a substantial signed. workers, number of the favored the UFW over probably majority, actually (Id., 579.) Teamsters. at The court characterized the con employers’ favoritism, duct as “the ultimate form of em completely substituting ployer’s choice of unions for his (Id., desires.” As employees’ a direct result of this sort of voluntary recognition by employers throughout California, a bitter ensued between the the Teamsters struggle UFW and that was and “disorderly, occasionally bloody, never the of self- showplace Fuller, determination.” & Farm Labor Relations: An (Segur California’s 25, Analysis (1976) 26; the Initial Results 99 Lab. Monthly Rev. see also of

225 A Comment, Survey End Voicelessness: to Farmworker Attempt California’s 197, (1976) Pacific L.J. Act 7 Labor Relations Agricultural of of 206-211.)7 Ranch, with ap we quoted In Cal.3d at Highland page supra, & Produce Fruit (Kaplan’s in an earlier case Board’s observation proval Chavez, Co., v. 7), Englund Inc. ALRB the facts in No. that p. leading supra, integral history Cal.3d were an part ALRA, that sec we the Board’s conclusion enactment of the affirmed em it an (f) tion an unfair (making practice subdivision election) “was won a with a union that not secret ployer bargain has entering into from for the of adopted employer purpose prohibiting unions.” of more competing ‘sweetheart’ with one two or arrangement Ranch, this 859-860.) against It was (Highland supra, 29 Cal.3d at pp. the ALRA deals that “sweetheart” background voluntary recognition was enacted. HCS, ALRA,

The are by comments of those who drafted the quoted ballot pro- consistent with Board’s that the secret perfectly conclusion or- visions were intended to not recognition, voluntary preclude context, were ders. When considered it is all of the comments in clear that elec- made reference to the worker-initiated secret having importance as been tions means of had opposed voluntary recognition various (and unions) abused employers past. “Now, instance, is mea-

For Berman A.B. 1533 Assemblyman stated: which, else, every sure above all ballot elections in instance. secret requires The the workers. Rec- theme of bill is self-determination primary this strikes; cannot be obtained cannot be obtained it ognition by recognitional it cannot be on the secondary boycott; pressures growers through obtained Com. on Labor by sweetheart contracts.” before Assem. (Hearing Relations, 2.) at supra, are not

Similarly, concerning why employers to a response question ALRA, are under the as they to call an election under the given right “Now, NLRA, Act, one only we allow Bird stated: under our Secretary We don’t a secret ballot election. way through that’s recognition strikes, as do they don’t cards allow we allow authorization recognitional NLRA, this after due deliberation on strong under the and it was a feeling on the issue that if were some kind resolution bring question you going volatile condi struggle potentially was the “unstable and suggested 7It has been that this Fuller, (Segur preamble. tion” referred to in the Act’s & of that if legitimacy, you allowed the the election mech- employer trigger anism, there would always raised the of whether or not he question coerced the employees forced an election in some upon employees way.” Com., before (Hearing 51.) Sen. Industrial Relations at p. in the

Similarly, sentence immediately following by HCS quoted (ante, 223), at Professor p. concluded that the election Levy secret provi- sions of the Act “thus of a labor prohibit voluntary recognition organization an ...” employer. 789.)8 at (Levy, supra, p.

It from appears these comments and from the historical context the Act that elections, the Legislature but provided secret ballot pre cluded other means of that had em recognition been abused historically because ployers, it felt this scheme would best ensure worker self-deter mination—the of the underlying Act. There is inconsistent purpose nothing between this intent to prevent coercion and the Board by employers, having to issue authority bargaining orders cases where an em extraordinary extreme and ployer’s coercive tactics from preclude express Indeed, their choice in ing discussed, a free election. as already bargaining order be the may only way worker self-determination under ensuring such circumstances.9

HCS next contends that the court’s decision in Gissel was based on high NLRA 9(a) section 159(a)] U.S.C. which allows for certi- implicitly § 8Perhaps statements, more significant Levy’s quoted by is another of Professor HCS. not HCS Levy’s cites Professor support argument comments in of its that the drafters of clearly article, ALRA preclude intended to bargaining Yet in orders. the same Professor Levy following: wrote the may “Under the right bargain NLRA ... a union secure the election, with employer though even it employer’s has never won a secret-ballot if the unfair labor have holding improbable. made the of a fair election In these circum stances, the NLRB Packing would adhere to the decision NLRB v. Gissel Co. and order employer bargain though Query with the union even there had been no election. ALRB, situation, whether the faced with a similar would this NLRB an consider decision ‘applicable precedent’ in view awarding bargain of the fact that the ALRA is committed to ing only omitted.) status through process.” (Levy, supra, election at fns. At the very least this passage suggests Levy propriety that Professor believed the question (The orders open by left the ALRA and one to be determined the Board. discussed, issue of whether Gissel “applicable precedent” post, is elections, 9Because of certain holding may constraints on the orders be even important more under the ALRA than under the NLRA. the Board noted in its As decision ALRA, provisions this case: “Under the days of the must be held within seven elections filing representation petition. 1156.3(a). of the of a petition may only The Section be filed employer’s payroll when the percent employment reflects 50 peak agricultural for the year. current calendar Section 1156.4. statutory prerequisites, present These not in the NLRA, make a rerun election less waiting feasible. Even after for the effects of unlawful subside, organization may conduct to long year have to wait full as as another delays, interference, petition. initially by file a new Such where caused employer’s illegal with the goals would further conflict effectuation of the of the Act.” elections. secret ballot fication means other than elections, HCS limited to secret Since under the ALRA is certification the hold misconstrues HCS Gissel is not argues, precedent.”10 “applicable in Gissel. ing Gissel, au- union had obtained in the

In three of the cases consolidated and, the basis of on thorization cards from a majority employees cards, refused All three employers demanded recognition by employers. to refusal held that the employers’ with the union. The NLRB bargain violation, in conjunc- and that this 8(a)(5)11 violated NLRA section bargain justified tion with other unfair committed employers, labor practices order. bargaining findings In all three Circuit reversed the Board’s cases the Fourth 8(a)(5) duty bargain section that an violations on grounds employer’s arose after the ballot election. Since the only employers union won a secret cards, Cir- had no the Fourth duty to based on authorization bargain solely reasoned, cuit orders 8(a)(5) bargaining there were violations and no section were unwarranted.

Thus, the faced with two independent ques Court in Gissel was Supreme 8(a)(5) tions: whether an NLRA section under employer’s duty bargain and, so, can order is bargaining arise without a if whether a Board election and re an a card majority where an appropriate remedy rejects employer unfair labor fuses to while at the time bargain committing same that tend to a fair election undermine the union’s and make majority 558]). It was in (395 L.Ed.2d at unlikely U.S. at possibility [23 9(a) and NLRA section answering first that the court discussed question than held that means other 9(a) because section allows for recognition 8(a)(5) election, under section secret ballot duty bargain an employer’s (Id., could arise even in 595-600 pp. the absence of a Board election. that, of the Na precedents provides applicable 10Section 1148 “The board shall follow Act, only requires tional Labor Relations as amended.” It should be noted that section require that the Board make applicable precedent; that the ALRB follow NLRA it does not Thus, precedent even if Gissel only such which have under the NLRA. orders decisions Gissel-type authority to issue strictly “applicable,” was not if the Board otherwise had orders, necessary to effectuate the bargaining it if it believed such orders were could do so policies of the ALRA. 158(a)(5)] 8(a)(5) provides an unfair labor that: “It shall be 11NLRA section U.S.C. § [29 bargain collectively representative with the practice employer .... to refuse to for an 159(a) 9(a)] title.” subject provision to the of section of this employees, of his [§ 9(a) designated purposes provides, part: “Representatives or selected for the Section majority employees appropriate for such bargaining by the unit of collective representatives of all the unit for the the exclusive such purpose, shall be bargaining. ...” purposes of collective held, L.Ed.2d at on to address 567-570].) so the court went pp. Having reme- second order was an question—whether appropriate orders, In court dy. upholding Board’s to issue authority 9(a) did not in on or its con- any way rely its earlier discussion of section clusion that a union could under the NLRA means obtain recognition other than a at 576- (Id.., secret election. at 610-616 L.Ed.2d pp. pp. [23 that, 579].) Gissel is therefore not the fact unlike rendered inapplicable ALRA, under the under the union obtain ordinarily may recognition NLRA even in the absence of a secret election.12

Nor is Gissel each of the rendered virtue of the fact that inapplicable (i.e., a cases consolidated in Gissel involved an unlawful refusal to bargain case, whereas, no 8(a)(5)), violation of NLRA in the there was instant § unlawful refusal to The Gissel court itself bargain. expressly approved orders, Board’s under certain long standing policy issuing bargaining circumstances, 8(a)(5) “in the absence of a violation or even a bargaining § (Gissel, 578]), demand” L.Ed.2d at and there is 614 [23 considerable orders to -Gissel pre- post precedent issuing bargaining identical, 8(a)(1) (3) (which violations of NLRA are remedy sections 1153, (a) (c)) to ALRA in the absence pertinent part, subds. § to B. v. any 8(a)(5). (See, Bighorn under section N. L. R. duty bargain e.g., (9th 1980) 1238, 1243; Production Cir. 614 F.2d N. L. R. B. v. Beverage Chevrolet, 1117; Inc. (6th 1980) Co. Cir. Plating 614 F.2d Appletree Products, (1980) (1980) 1220]; 251 NLRB Inc. Coating L.R.R.M. [105 1399, 1400]; 251 NLRB 1271 Inc. v. Package, L.R.R.M. Drug [105 1340, 1345; v. (8th 1978) Penny N. L. R. B. Cir. J.C. Co. 570 F.2d 479, 486; L. (10th 1967) N. R. B. Cir. United Steelworkers 384 F.2d 770, 772; B. (D.C. 1967) America v. N. L. R. B. 376 F.2d N. L. R. Cir. 344, 346-347; (6th 1965) v. 353 F.2d Piasecki Delight Bakery, Inc. Cir. 575, 591-592.) (3d 1960) v. N. L. R. 280 F.2d Corp. B. Cir. Aircraft that bar- HCS makes four to its contention additional arguments support ALRA. None of these arguments orders are under the gaining precluded persuasive. Gissel, Supreme held that an 12Signiflcantly, years its decision in Court several after presents majority the union it with a employer duty bargain simply has no because to held, Rather, step Court the union the next Supreme authorization must cards. “tak[e] (Linden Lumber invoking procedure.” Division v. N.L.R.B. the Board’s election 1974, 429].) Thus, primary S.Ct. since 419 U.S. L.Ed.2d has, obtaining recognition bargain and under the NLRA establishing duty means of ALRA—i.e., (although under the secret election under the practice, been the same as that voluntarily recognize a union on authorization NLRA an free to based employer is still nonetheless, has, cards). bargaining continued on a to issue orders The fact that the NLRB argument bargaining inappropriate orders are not under regular to the support basis adds obtaining recognition. is the sole means of an election simply

the ALRA because for an First, only an unfair labor practice HCS that since it is argues election won a secret with a union that has refuse employer bargain for an employer an unfair labor (§ (e)), subd. it would not be practice Board’s Since the order. refuse to a Gissel bargain following bargaining (§ 1160.3), HCS remedial to unfair labor authority only applies order where a the Board is without to enforce argues, authority could that the Legislature the union has not won an election. HCS concludes if remedy no not have intended to orders yet provide authorize bargaining with the order. refused to employer comply remedial the Board’s This is without merit. argument Although order the Board’s authority is restricted to unfair labor practices, it in this case the 30 unfair labor practices was issued to remedy expressly found court enforcement HCS had committed. The Board can therefore seek failure to of its order under section whether or not the employer’s 1160.813 would, itself, unfair labor with the order constitute an comply independent practice.

Second, on in Gissel was based on its contention that the relying holding recog- fact that the NLRA limit union obtaining does not the means elections, nition to intended secret HCS that had the argues Legislature allow Gissel ALRA does limit orders the fact that the bargaining despite such means of it have authorized would obtaining recognition, expressly discussed, we of the holding orders. As have this was not the basis already in Gissel. HCS’ is therefore without merit. argument

Next, a make-whole that the ALRA authorizes noting expressly (§ 1160.3), intended to autho remedy HCS that had the argues Legislature rize HCS’ reliance orders it would have been bargaining similarly explicit. on the Section 1148 man for a make-whole is provision remedy misplaced. Leg dates that the ALRB of the NLRA. The follow applicable precedent remedy islature because this remedy authorized make-whole expressly of the board provides, “Any person aggrieved by the final order part: 13Section 1160.8 order denying may a review of such granting part sought or in whole or in the relief obtain ...[([] lapsed, and the appeal. in the court review board order has If the time for order, may apply to the person voluntarily the board complied has not with the board’s determines that superior hearing, order. If the court court ... for enforcement of its after person that the by the board and pursuant procedures the order was issued established order, injunction by writ of comply refuses to with the the court shall enforce such order not review the the order.” proper process. or other The court shall merits of 1160.8, order,” solely the board either dismiss- “Final under “means an order of section directing remedy for the unfair labor ing complaint part in whole or in (1977) (United Cal.App.3d Agricultural v. Labor Relations Board found.” Farm Workers 347]; Bd. Belridge Agricultural Farms v. Labor Relations Cal.Rptr. see also Cal.Rptr. 580 P.2d 21 Cal.3d 556 [147 not auto- was not established NLRA and therefore was clearly precedent Bird matically Secretary explained: section 1148. As incorporated through the make-whole was remedy] just placed language [concerning “[T]his because National Labor there has been a deal of discussion with the good remedy, Relations Act that it the ‘make whole’ to be amended to allow ought carefully and this is that the who have looked at this Act something people believe since we and should be taken. And we decided progressive step California, were anew here in that we would take starting progressive Com., 64- pp. before Sen. Industrial Relations step.” (Hearing at the time Because orders were well-established precedent bargaining enacted, authori- the ALRA need to make their there was no similar zation explicit. Assembly to enact HCS notes that in failed

Finally, Legislature that, Bill other would things, No. 840—an amendment to the ALRA among HCS ar- have orders.14 authorized the Board to issue expressly 840 demon- that the failure to enact Bill No. gues Assembly Legislature’s “reaffir- in the ALRA and a strates both an absence of such authorization course, contrary mation” that Of orders should not permitted. contention, to HCS’s failure to enact the amendment the Legislature’s At intended in 1975. 1979 demonstrates about what the nothing Legislature in most it intent on of the Legislature reflect an the might arguably part 1979 that orders not be bargaining permitted. matter, from the merely

As a be drawn the inferences that can general has As this court failure to enact a bill are limited. Legislature’s quite warned, best, (Citation “At divination.’” silence is a ‘Legislative Delphic omitted.) Court Labor Relations Bd. v. (Agricultural Superior 687].) For a number Cal.3d 546 P.2d Cal.Rptr. reasons, does not Bill No. 840 Assembly the failure to enact Legislature’s to bar- an inference intended thereby preclude that the justify Legislature orders. gaining No.

First, Bill Assembly the demise of circumstances surrounding shows history The 840 were rather pedestrian unrevealing. legislative read, pertinent part: to in 14Assembly Bill No. have amended section 1160.3 840 would policies part. of this Such may will effectuate the provide “The board such other relief as faith bargain good may requiring employer to relief include the issuance of an order petition a or autho organization has filed organization provided with a labor that such currently bargaining in the employed employees signed by majority rization cards (d) 1156.7 and (a) or subdivision of Section pursuant unit 1156.3 to subdivision of Section during employer that an has committed the board determines that the unfair labor effects pervasive in nature that their coercive process outrageous and the election are so a fair and traditional remedies with the result that application be cannot eliminated reliable election cannot be conducted.” 12, 1979, that the bill was referred read for the first time on March to Labor, the Committee on it was and Consumer Affairs where Employment held without at which time it was January until recommendation 56,” filed with chief clerk and “died to Joint Rule pursuant “pursuant IV, to Art. 10(a) sec. of the Constitution.”15

Second, amendment, there was another in the unrelated major provision orders, to bargaining have for the Legislature’s been might responsible failure enact No. declared make- Assembly Bill 840. This other provision whole relief where refuses to order inappropriate bargain employer to seek judicial review of the of an the Board.16 certification election

Finally, well have felt that Bill No. 840 Legislature may Assembly was unnecessary since section 1148 the Board follow requires applicable NLRA precedent were well-established bargaining orders already prec- edent under the NLRA. circumstances,

Under these we cannot infer from the failure Legislature’s to enact Bill No. 840 that Assembly intended Legislature prohibit bargaining orders.

Where an forecloses the and fair employer free possibility holding election by committing unfair labor order egregious practices, may be the way self-determination, only ensure worker “free from the interference, restraint and 1140.2). coercion of Were (§ we to employers” construe ALRA’s mandate secret ballot elections to prohibit would, essence, Board from issuing remedial orders we the transforming workers’ most effective shield the into most employers’ formidable sword. We find in nothing history language legislative of toAct such a hold compel construction. We therefore that the ALRB has to issue authority remedial in orders cas bargaining appropriate es. We turn now to the whether a order an question was bargaining appro priate in remedy this case. provides by January 15Joint Rule 56 for filing passed with the clerk 30. chief bills not IV, 10, (a) Article “Any section provides part: subdivision of the Constitution in bill during year introduced the first legislative of the biennium of the session that has not been

passed by origin day year house of thirtieth January of of the second of calendar may longer the biennium upon by no be acted the house.” 16Ironically, under argument, provision Leg HCS’s failure to this demonstrates the enact islature’s belief already that the statute that no did not contain such a limitation and such limitation should Agricultural be added. Yet v. Labor Relations Bd. in J.R. Norton Co. (1979) court, 1306], 26 Cal.3d Cal.Rptr. 31-35 P.2d this without benefit 603 [160 Assembly of appropriate Bill No. that not under such concluded make-whole relief was circumstances.

III. in This Case Order Bargaining Appropriateness of remedies, knowl on a fund of In its “the Board draws fashioning be therefore own, remedy its of must and all its and choice edge expertise 612, fn. (Gissel, given courts.” special respect by reviewing court reviewing A L.Ed.2d at p. [23 of to abuse if it amounts remedy only will reverse the Board’s choice of Bd. (Butte v. Labor Relations Agricultural discretion. View Farms 476].)17 Cal.Rptr. Cal.App.3d case, ALRB held that HCS’s In in order this issuing bargaining fell within they that unfair labor were so outrageous pervasive practices ante, at (see, the Gissel court the first of cases described category of 221), even in the absence thus a order bargaining appropriate making this unclear, however, relied on a It whether the Board card is majority. unfair HCS’s 30 order. After summarizing its finding issuing bargaining that “We ALJ’s conclusion labor the Board held: affirm the practices had cards authoriz signed of the in the unit employees bargaining majority on rely We therefore the UFW the eléction. them to ing represent prior their had indicated these that a majority cards establish UFW, return events order to bargaining support implement we con Because the status unfair quo prior practices.” under the clude that the order issued in this case appropriate bargaining also be sus not whether it could second Gissel we need decide category, on tained the basis of the first Gissel category. order, must the Board bargaining

In order to a “second support category” the effects erasing labor] find “the possibility past [unfair of traditional the use (or rerun) by a fair fair election ensuring remedies, once sentiment employee and that the though present, slight only exceptional granted extraordinary remedy that should 17A order is an remedy, appellate courts Notwithstanding given to the Board’s choice cases. the deference cases. only appropriate responsibility are have a to ensure that orders issued application responsibility, and to ensure consistent reviewing To enable to meet this courts a decision to issue behind its remedy, clearly the articulate the reasons of the Board should analysis, a detailed make particular the Board should bargaining Specifically, order in a case. impact of the unfair including specific immediate and residual findings, concerning the misconduct; potential and the recurring practices on the election the likelihood of process; factually sim addition, distinguish ordinary remedies. the Board should effectiveness of In Century v. (See, e.g., N.L.R.B. bargaining cases in which orders were not issued. ilar 1087, 1093; In v. Gibralter (7th 1982) N.L.R.B. Moving Storage, & Inc. Cir. F.2d Note, 1091, 1099; Bargaining Orders: (6th 1981) Gissel Inc. see also dustries Cir. 653 F.2d (1983) 40 & Lee L.Rev. Struggle Abuse Wash. Circuit Courts to Limit NLRB expressed would, balance, through cards on be better a bar- protected by (Gissel, 578], order.” gaining 614-615 at ital- L.Ed.2d pp. added.) ics HCS makes a number of to the authorization cards challenges relied on Board in a order was under holding bargaining justified the second of Gissel. category

First, HCS argues that the authorization cards a signed by majority HCS employees were admitted into evidence before the improperly ALJ. The general counsel’s did not that the UFW had complaint allege obtained a card nor majority, did it order specifically request bargaining remedy. When the UFW moved to amend the to complaint include a (apparently order bargaining counsel, HCS, request) well general as as objected the amendment and to the introduction of any authori- evidence—including zation cards—relating of a order.18 The ALJ propriety bargaining denied the UFW’s motion to amend the and refused to admit complaint evidence of status majority that, on the since there were no grounds alle- gations the complaint status, concerning such evidence majority was “im- material and irrelevant.” The UFW sent a to the ALRB re- mail-o-gram questing immediate review of Board, the ALJ’s decision and the while up- the denial holding of the UFW’s motion to amend the complaint, apparently instructed the ALJ to admit evidence HCS relating majority support. argues that the authorization cards were immaterial and irrelevant and there- fore should not have been admitted.

Although general counsel’s did not complaint specifically request order, bargaining for prayer relief did include a that the Board request provide “such other and further relief as will effectuate the of the purposes Act.” The Board has broad discretion in the most choosing appro priate remedy and there is in the ALRA or the nothing regulations suggest that the Board may grant those only remedies specifically requested Thus, prayer relief. evidence concerning any remedy potentially appro on the priate facts in the alleged complaint material relevant. Evi dence of a card majority is both clearly material and relevant to the propri ety order bargaining and therefore the authorization cards were prop erly admitted into evidence.19 18The general counsel stated on the record that he had conferred with his own staff and regional with the counsel agreed and all that the facts of this case did not request warrant a

for a order. 19In the course argument cards, of its concerning admissibility simply HCS that it asserts was “not afforded process by being appraised constitutional due in a [sic] complaint issued General Counsel that it alleged its conduct so interfered with the election process held, that no fair election could be remedy and that a order appropriate.” would be It is not clear whether arguing HCS is that it lacked notice that, relevant, Board “violated

HCS next even if the cards were the argues under section 114920 authority and the counsel’s final abrogated” general the coun general ALJ to admit the cards into evidence over by ordering the final authority the counsel does have objections. sel’s While general and of unfair labor prosecution practice with to the respect investigation of the and it is decide the merits case the Board’s to charges, responsibility to the cannot determine fashion an Board remedy. Obviously, appropriate de to make that if denied information critical remedy the it is appropriate case, the to the ALJ simply termination. In this the Board’s order required fashion, consider, remedy admission of evidence a necessary possibly alleged the counsel had general for the unfair labor which practice charges not the unduly infringe upon gen in its This order therefore did complaint. eral counsel’s of authority. sphere ad that, were

HCS next even if the authorization cards properly argues In mitted, case. are not reliable indicators of this they majority support of had signed the ALJ’s that a affirming majority conclusion em that of the majority authorization cards and that the cards “establish a UFW,” relied to some had indicated their for the the Board ployees support v. Cumberland Shoe Corp. (1963) 144 NLRB 1268 N.L.R.B. extent on Under the Cum 1233], 1965) 351 F.2d (6th L.R.R.M. enforced Cir. 917. e., its Shoe doctrine, (/. on berland “if itself states unambiguous the card the employee face that authorizes the Union to represent signer will election), not it be count collective to seek bargaining purposes be the card was to ed unless it is that the was told that employee proved (Gissel, solely an election.” used for the of purpose obtaining itself, be bargaining might a order bargaining order or that it did not have notice because validity going was to be cards adequate issued it lacked notice that the of the authorization litigated. way, argument Either HCS’ due lacks merit. process that, bargaining notice a arguable upon receiving complaint, HCS had constructive It is egregious enough might complaint alleged be unfair sought order because the requested appropriate all remedies. bargaining prayer to warrant a order and the for relief event, UFW no that the any put In was on notice later than March HCS actual later, the ALJ informed seeking bargaining A week on March would order. concerning majority parties UFW’s that the ALRB had ordered the admission of evidence here, was there, majority support does that evidence of support. argued Since HCS as it order, sufficiently apprised was only bargaining of HCS propriety relevant later before the issuing was almost a week considering order. It Board litigated the va- vigorously HCS began presenting majority support evidence UFW challenge hearing opportunity ALJ. HCS also had full lidity of the at the before the cards its exceptions validity propriety cards of the order both of the and the circumstances, process. was not due the ALJ’s Under these HCS denied decision. authority, on final part, general “shall have provides, 20Section 1149 that the counsel board, complaints investigation charges and issuance respect with to the behalf 1160) respect to the (commencing part, this and with Chapter 6 with Section under prosecution complaints of such before board.”

235 Thus, 561].)21 L.Ed.2d at p. even if are told that the p. [23 employees election, purpose cards is to obtain an will be cards valid so long as the are not told that the sole employees this is the cards. purpose Shoe, (Cumberland 351 F.2d at p.

It is that the undisputed cards this case and clearly unambiguously (in stated English that who the card Spanish) autho- employees signed rized the UFW to them for represent collective HCS bargaining purposes. nonetheless argues that the cards do not the Cumberland Shoe test. pass

First, HCS that, that the argues of UFW reveals testimony organizers with speaking each of them employees, the need to have a ma- emphasized of cards in jority order to secure an election. HCS also notes the testimony of six HCS employees that organizers told them the cards would be used to obtain an election and that the workers would receive certain benefits if union won the election.22 discussed,

As already even if told HCS organizers only employees that the cards would be election, used for an the cards would still be valid under the Cumberland Shoe doctrine as as the were not told long employees that the cards would be used for the solely an elect obtaining purpose ion.23 Furthermore, there was that testimony union did not tell organizers HCS employees only but, that the cards would be for an election used addition, that the emphasized cards indicated for the UFW and support authorized the them; union to represent discussed the benefits that would accrue to workers if the UFW was their and asked workers representative; to read the cases, cards before them or in signing some read the cards to the workers. doctrine, 21In approving the Cumberland Shoe “[EJmployees Gissel court stated: should be bound language they the clear sign language deliberately of what that unless is clearly canceled a union adherent signer with words calculated to direct disregard forget language (395 signature.” above p. his U.S. at L.Ed.2d at [23 574].)

p. 22All employees six were still employed testimony. HCS at the time of their The court in Gissel noted that such testimony of inherently suspect current in that “em ployees not, are more likely than many response questions months after a card drive and in counsel, by company union, give testimony damaging particularly company to the where officials have previously (395 reprisals threatened activity. p. for union ...” U.S. at 575].) L.Ed.2d at [23 23The Supreme Court in Gissel holding affirmed the trial that examiner’s the authorization cards were valid under the Cumberland though employees Shoe doctrine even had been told one or more “(1) (2) of the following: that the get card would be used to an election right he had the to vote way, either though signed even he the card that the card would be kept secret and not anybody shown to except get to the Board in order to an election.” (Id., 584-585, pp. fn. 5 L.Ed.2d at In warning troubling.

HCS a second which is bit more makes argument doctrine, the too of the Shoe against mechanical an Cumberland application NLRB in the by Gissel court with the statement following quoted approval “The 732 L.R.R.M. Levi Straus & Co. 172 NLRB 1338]: [68 of a of does not course that foregoing imply finding misrepresentation [in ex- are of to situations where employees the solicitation is confined cards] told or of the cards in haec verba that the “sole” pressly “only” purpose a mechanistic is to obtain an election. Board never such suggested The has The Board of the as some have contended. application foregoing principles, or of looks to to It is the use nonuse certain substance rather than form. not of but or not the totality or words that is whether key “magic” controlling, such, add to an card is as to up circumstances the solicitation surrounding other to the card that will be used for no purpose assurance his card signer ” (Gissel, L.Ed.2d than to an at fn. help get supra, p. election.’ [23 575].) at p. sur-

HCS a of circumstances argues “totality that consideration case, who the in reveals that rounding employees card solicitation” this the for sole cards knew that the would used the signed purpose cards of its enact- an at the time obtaining election. In HCS notes that particular, and, most impor- ment the ALRA was the represented public legislators, workers, only through as union tantly, agricultural allowing recognition that, in ballot the fact practice, secret elections. This has been reinforced by an election. unions have been under ALRA after only winning certified that, addition, of UFW organiz- HCS the literature and comments argues would obtain ers that workers gave employees HCS clear impression won an election. the benefits union if the UFW only representation that is believed There some merit to HCS’s If argument. not were, effect, for election and they “voting” only cards signing not neces- union, do for the it is that their necessarily arguable signatures for union. On to or a commitment sarily represent strong support hand, context, need decide whether “we only other in the order bargaining where fair order a the cards reliable enough bargaining are support held, has an election that have where election could not been or probably 601, fn. 18 at (Gissel, p. been held in fact aside.” supra, [23 set in the 571], evidence added.) L.Ed.2d at There is substantial italics p. encouraged record that UFW with HCS organizers, employees, speaking of union representation. them to read cards and the benefits emphasized is no evidence HCS there of one current testimony employee, Except their feelings regardless that union workers to cards sign organizers urged (See, union, e.g., process. the democratic about simply support circumstances, Shoe, Cumberland at Under these 920.)24 F.2d supra, p. are we believe the the UFW “reliable authorization cards obtained the Board’s enough” order. support however, reliable,

Even the if authorization second cards are considered Board finds “the category pos- order is if the justified only ensuring the effects of and of sibility erasing past [unfair labor] remedies, (or a fair rerun) though election fair the use of traditional at present, (Gissel, ...” L.Ed.2d slight.

HCS that a order is in this case because argues not bargaining appropriate traditional remedies are HCS on its contention primarily sufficient. relies that sufficient time the unfair and passed has since labor alleged practices,25 worker turnover been been has so extensive that “taint” the has dissipated and a fair rerun election could be Board the now held. The takes position that, order, in not whether to issue a it need consider determining bargaining events occurring to the unfair labor subsequent employer’s practices.

There is a great of deal confusion under the NLRA whether “subsequent events,” turnover, such as the time passage of should be employee considered by the NLRB and/or courts in the reviewing deciding appropri- Comment, All, ateness of a (See order. Tomorrow is bargaining “After Day”: Another Should Events the Subsequent Validity Bargaining Affect 505, 512-521, Orders? therein.) 31 Stan.L.Rev. cited and cases Much courts, of this confusion stems a the in from failure of circuit partic- ular, to make clear which a are at issue in case: given events” “subsequent order; those occurring between the labor Board’s unfair and the practices those occurring between the order the court’s deci- reviewing Board’s sion; or both.

We think it clear that in a bargaining the reviewing propriety Board, order issued the courts not consider events that should appellate occur subsequent to the Ninth Circuit Board’s order. As the that, 24Bertilia Calderon informing organizer sign testified after a that she would not UFW an authorization card anything,” organizer because she “did want to be to the not committed that, assured her go “You sign anything.” ahead and it. You not be committed to will employee Another HCS testified he if that he was told he would be free to vote as desired evidence, however, the union secured an There to that he suggest election. is no was told order, notwithstanding this in or in encourage sign such manner a as to him the card he might representation. reservations Supreme have about union Court in Gissel ac The that knowledged employee authorization card is not invalid because an is told that merely (Gissel, he would right way, signed have “‘the to vote card.’” though either even he the 584-585, at pp. fn. L.Ed.2d at 25The Board’s order years alleged prac issued three unfair more than after the labor tices and has now years it been over seven since the were unfair committed. 1969) 418 F.2d 1: (9th

stated in N.L.R.B. L. B. Foster v. Cir. Company of hearing, is an unfortunate but result of the “[Delay] inevitable process enforcement, with decision and And to deny review the Act. prescribed occurring or without after remand for reconsideration on basis of facts decision, the Board’s a litigation is continued put premium upon new it will set delay can that employer; resulting hope produce facts, the Board as to which Board must that then readjudicate. Suppose so, be again petition does finds There can then against employer. court, it, Supreme to this for to the decision and a certiorari petition Court. that there will new set facts. By surely time almost another (Id., When is the process stop?” HCS,

The as turn rapid Foster does employer specifically urged, order. In over its workforce eliminated of a necessity Foster, the turn rapid Ninth Circuit given answered: “Emphasis over in the order. enforcing as a reason not employer’s personnel we will be an But think that this is a reason to enforce. Otherwise there in order to added inducement to to unfair employer indulge practices defeat the union as an in addition to the in an election. He will have ally, of from in accomplishing attrition union inevitably delay support springing results, him, can the fact so that the he longer that turnover itself will help also, (Id., 5.) (See hold out the chances of will be.” at better his victory Bros, Co., 1074, 1981) Cir. 664 F.2d (7th Justak Inc. v. N. L. R. B. 1213, 1082; F.2d (8th 1979) Curlee v. Cir. 607 Co. N.L.R.B. Clothing 1216; 1977) 550 (9th N.L.R.B. Airlines F.2d v. Southwest Cir. Pacific 1148, 1153; 1971) 447 (7th F.2d Henry N.L.R.B. v. Colder Cir. Company 629, 630.) that, reasons, in determining

For similar we the ALRB’s approve position order, time it need not consider propriety bargaining passage which has between the time employ- turnover occurred employee Gissel, to unfair Prior er’s labor time of the Board’s order. practices NLRB, in whether deciding Court had held that the Supreme repeatedly order, to the to issue a could events ignore subsequent properly (1962) Labor Board v. (See, unfair labor employer’s practices. e.g., Katz 736, 230, 239, 1107]; 748, 82 Franks 369 U.S. fn. 16 L.Ed.2d S.Ct. [8 1020, 702, (1944) v. S.Ct. Bros. Co. Labor Board 321 U.S. 704-706 [88 1022-1023, 817]; 64 v. P. Lorillard Co. 314 S.Ct. Labor Board Gissel, 512, 380, the NLRB 382, U.S. L.Ed. 62 S.Ct. Since to an em- has to that events consistently subsequent adhered its position (See, Bandag, In- unfair e.g., labor should be ignored. ployer’s practices 1, 1978) 1045, (5th Cir. 1045, fn. enforced (1977) 228 NLRB corporated 765; (1970) 185 NLRB sup- 583 F.2d Gibson Products Company (5th 1974) 199 NLRB enforcement den. Cir. F.2d plemented 762; cf., N.L.R.B. (5th 1970) v. American Cable Inc. Cir. Systems, 446, 448-449; F.2d (6th Clark’s Gamble v. N. L. R. B. Cir. Corporation 1970) 422 F.2d 846-847.)

The rationale for the NLRB’s was stated in Gibson Products position Company, supra, 185 NLRB whether the em- 363: determining “[I]n unfair ployer’s labor are a fair practices of such nature as preclude election and thus necessitate a on card show- order based past status, ing majority the situation be the time of the must as of appraised For, commission of the unfair labor and not in virtually practices, currently. case, reached, every the time a Board decision is there is likely sufficient turnover and employee other to make it where changes arguable, has employer meanwhile refrained from new unfair labor committing that an practices, election held now would be free of the taint of the old unfair But, the union practices. and the then it supporting were entitled time, and, to an election at an earlier if the employer’s original unfair labor were of such a nature as to them of an election deprive time, at now, one permit when the union’s has been unlaw- support fully dissipated, ‘would in effect be rewarding employer allowing ’ him “to Gissel, from own profit wrongful refusal bargain” [his] 395 U.S. at (Id., 610.” omitted.) fn.

The NLRB’s policy to consider events” is refusing “subsequent par- ticularly appropriate is, the ALRA context. The workforce agricultural in a large part, migratory one. Agricultural work for employees typically several the employers during course of the year and do not work frequently for the same Thus, from one employers to the next. year high employee turnover is inherent in agricultural If employment. agricultural employers could rely on turnover employee to the prevent Board from issuing bargain- orders, ing would employers (Foster, have not an just “added inducement” supra, 418 F.2d 5) at but an absolute p. inducement to in unfair engage practices order to a union prevent from obtaining winning election, for they could be certain that the time their virtually by case Board, reached the there would be sufficient turnover to employee preclude a bargaining order.

We are mindful of the conflict between the Board’s and potential position the ALRA’s goal of free choice. events that effectuating Ignoring employee occur between the employer’s unfair labor and the Board’s order will lead to inevitably cases in which a union is certified notwithstanding that a only minority of the at the time certification had workers employed or, the authorization be

signed represented cards worse wished to yet, certified union.26

However, bar- even and Gissel in the absence of unfair labor practices orders, at any it is often the a of the gaining majority employees case that cards were solicited time were the authorization given not when employed rule and the election well be the may held. In the context this agricultural ALRA, are rather than the law generally, Yet the and labor exception. by past on a fiction of that the union elected premised legal sorts addition, it is the In chosen of current freely representative employees. is, remembered, noted, “[tjhere after the that should be as court in Gissel all, order, if, after the effects in a nothing bargaining permanent off, the acts desire disavow employer’s clearly have worn the employees union, (Gissel, supra, can do a so they by filing petition.” [decertification] 577]; 1156.7.) L.Ed.2d at see § events, the it is not clear

Finally, subsequent at all considering Board current employees. would be the free choice of actually promoting Were it would the Board to events considering adopt policy subsequent forced, cases, issue be a rerun election rather than almost all order threat, therefore order. would remove the effectively This bargaining Thus, would value workers deterrent orders. while current be election, would the chance to have own given employer their election, as it had with free to interfere with new relatively just earlier one.

Given inherent in agricultural and extensive worker turnover rapid we best served believe the of the ALRA are employment, policies order, it that, Board’s deciding whether issue position subsequent turnover may ignore the of time properly passage employee unfair labor practices. employer’s case reasons, this For Board’s order in we that the foregoing conclude order the was a decree issue enforcing both authorized and Let appropriate. Board. J.,* Kaus, Levins, con Broussard, L, L, L, and Reynoso, C. Acting curred. authority to held NLRB has repeatedly United States Court that the Supreme 26The has where, order, only a represents union issue orders at of the even the time Gissel, 576]; Franks (See at supra, employees. p. p. L.Ed.2d minority at Board, 1022-1023].) pp.

Bros. at Co. v. Labor pp. L.Ed. 321 U.S. at 704-705 [88 by the Council. *Assigned Chairperson of Judicial

Appendix* Employee Information Cards cards” “information distributing On March began petitioner address, name, social their which that disclose requested employees statement was a number. At the bottom of each card security typewritten . the information which “. . read: “I Do Want “I Do Not Want []” []” followed aby This was contained on/in this card to remain confidential.” were for the date and the cards Although print- space employee’s signature. clause confidentiality ed in both no for the English Spanish, explanation it result, that believing was As a refused to many sign provided. Owner, Harry constituted an to ascertain their union sentiments. attempt Carian, on testified he clause based employee that had inserted the new request. cards, innocuous on their

The ALJ determined that although these face, sub constituted unlawful in violation of section interrogation (a). division The Board affirmed this finding. [] (205 Carian Cal.3d 654 v. Labor Relations Bd. Agricultural

[In that 701), finding 685 P.2d we the Board’s Cal.Rptr. recently upheld vio another HCS information card” solicitation conducted “employee that lated section in Carian stated (a). subdivision The cards involved the information Labor Rela requested “may given by Agricultural through tions Board to union each and attributed to organizers,” employee, he statement above his printed signature, pronouncement “ on this ‘not that I have not written willing information supply any ” card.’ that distribution (Id., 671.) at We the Board’s finding upheld “ 1153(a) in that the cards ‘constitutes in violation of Section interrogation or attitudes for workers were in effect asked to disclose their being (Id., the union against their addresses.’” by giving refusing Carian, we court is whether As where before the the issue explained to be a the ALRB is information cards” justified finding “employee form of not turn whether “that issue does prohibited upon interrogation, attitudes to- intended them of his employer employee’s to be interrogative union, them ward the to coerce or intimidate or whether he intended thereby ac- omitted], or whether there was evidence that some employees [citation together, Brackets in this Appeal. *Text not enclosed that of the Court of brackets is [], Appeal; of brackets manner are of the Court opinion used to indicate deletions from the enclosing material are used to denote text drafted in this court. turns, rather, felt coerced or intimidated. The whether tually issue upon ALRB lan- could find that were likely properly perceive indicate, on the cards as them to to their guage calling employer, upon whether wished union and its they to have further communication with the (Id., italics.) at organizers.” original not include a Although “information cards” at issue in this case did the cards warning that the information be to union might given organizers, distributed, were with intensive organiz- no the UFW’s explanation, during time, At the to re- ing same campaign. allowing employees provision that the to the state- quest information confidential is similar kept quite ment on the at in Carian that the cards issue printed stating employee certain information. unwilling supply circumstances,

Under these “could find that employ the Board properly ees were them likely on the cards as perceive language calling upon indicate, com to their wished to have further they whether employer, (Id., munication with the union and Accord its organizers.”1 the Board’s is ingly, finding affirmed.] Mayo Crew

Termination of On members of his March Vitaliano and 43 Mayo employee crew were A UFW “grape thinning” organizer discharged petitioner.2 testified that the crew members Mayo Many was 85 percent “pro-union.” cards, donated funds for signed authorization in UFW projects, participated leaflets, radio Others Cesar joined out spots, passed displayed posters. Chavez in a union march the before the Petitioner asserted day discharge. records were as the reason for the unproductivity Comparative discharge. introduced faster than considerably which revealed that other crews worked not, however, crew. on usual method of Mayo Petitioner did his rely and no an entire crew had occurred gauging mass productivity firing over 19 years.

The ALJ was lack determined that the reason for the motivating discharge he rather or productivity activity. Accordingly, than union sympathy The Board (a) (c), refused to find a section violation. subdivision this rejected finding. many em 1[Although controlling, finding supported by evidence that not the Board’s cards, attempt by HCS to

ployees sign believing they refused to constituted an ascertain union sentiment.] bunch 2“Thinning” grapes per preharvest operation designed is a to reduce the number remaining grow quality. so that those to market standards size 1153, an unfair labor (c), Section of the Act makes it subdivision or to the hiring discrimination in practice “[b]y regard employer encour tenure of or term or condition employment, any employment, or The Board’s age in labor discourage any organization.” membership counsel has the burden of the has general engaged establishing employer affected employee conduct which could have discriminatory adversely (Rivcom (1983) 34 Cal.3d rights. v. Labor Relations Bd. Corp. Agricultural be 757-758 the factors to Among 670 P.2d Cal.Rptr. [195 the em the facie case are weighed determining general counsel’s prima conduct, animus, extent antiunion of the and the ployer’s timing alleged to which the sym knew that were union employer discharged employees established, or burden activists. Once the facie case is pathizers prima shifts to the to demonstrate that he was motivated employer by legitimate If the objectives. are not and substan proffered justifications “legitimate tial,” (Id.) an unfair labor results without reference to intent. practice instance,

In this of antiunion record is with evidence replete animus. Petitioner was found to have in a number of unfair engaged practices, surveillance, unlawful including and threats. These interrogation, incidents all occurred within a cam six-week period during pre-election paign. Petitioner’s knowledge activity may union employee sympathy be inferred from the visible and vocal activities of the crew. highly Mayo Finally, of the march timing discharge—one by day following major Cesar Chavez in which a member of the crew was visi Mayo prominently ble—buttresses the that the suggestion discriminatory. discharge

This evidence clearly establishes facie case of discrimination. prima Both the ALJ, however, ALJ and the Board reached this conclusion. The accepted petitioner’s stated while the Board it. justification, rejected The “substantial evidence” standard is not modified when the Board

[] and ALJ If disagree. the Board “can to evidence” which its point supports inference and if this is “substantial” when measured against evidence evidence, ALJ’s contrary findings as well as the its must finding opposing Farms, (Abatti upheld. Inc. v. Labor Relations Bd. Agricultural 887]; Inc. v. Cal.App.3d Village, Cal.Rptr. Penasquitos (9th instance, N.L.R.B. 1977) Cir. 565 F.2d In this the Board evi- rejecting ALJ’s of economic indicated the finding justification reasons dentiary for this It noted the records rejection. allegedly production relied on contained a number and dealt petitioner of discrepancies this evidence a fatal blow out that records were not re- these pointing We, ceived until crew. petitioner Mayo after the termination therefore, affirm the Board’s unfair labor practice finding.

Wage Increase two 1977, been fired and 29, crew had On March one after the day Mayo Valley, the Coachella petitioner after a march through days UFW-sponsored $3.15 hour to (from $2.70 per conferred a increase on all workers wage anti- ways: by workers in two hour). The raise was communicated to per them that leaflet, informed Jose Castro who also union supervisor Petitioner union went that high. $3.40 would raise if the wages petitioner discussed had been a merit increase which characterized raise as pay well in advance of its announcement. unlawful conduct constituted

The ALJ determined that petitioner’s 1153, The (a). subdivision interference violation of Labor Code section Board affirmed this finding. a section constitute may

Conduct favorable to immediately employees 1153, as threats. manner and (a), degree subdivision violation in the same 435, 405, L.Ed.2d (Labor (1964) Board v. Parts Co. 375 U.S. [11 because it interference 457].) 84 S.Ct. “‘Interference is no less ” (National Labor rather than coercion.’ allurements accomplished through 263, 267 F.2d 1943) 138 (8th Relations Board v. Crown Can Co. Cir. (7th Cir. Board Labor Relations Western Co. v. National Cartridge [quoting contrary, to the 1943) arguments 134 F.2d petitioner’s Despite this result. does not alter the absence of a election formally pending petition Bd. Relations Co. v. Labor (Royal Packing Agricultural benefits whether the 870].) The test is Cal.App.3d Cal.Rptr. or with workers’ and do interfere or conferred are intended to promised of benefits pre fact that the {Id.) grant Given the ganization rights. cam of a at the preelection sented in an and leaflet peak employer speech crew, widely after a days and two of an entire one after the paign, day firing the increase march, for doubt that can be little room UFW there publicized Accordingly, union. vote against was made to induce employees Board’s is affirmed. finding Discharge

Threat one of petitioner’s Sullivan entered On March organizer read A number of workers workers. and distributed union leaflets to camps testified Sullivan about the contents. the leaflets and began conversing leaflet, it down threw thereafter, José Castro picked up shortly supervisor handwritten Sullivan’s to fire us all.” and stated “they’re going angrily, unfair violations, filing for the purpose chronology alleged prepared witnesses incident. No leaflet-throwing did not refer to the labor practices, threatened ever having corroborated the threat and Castro denied alleged with discharge. credible, he declined to find the ALJ found to be Although Sullivan of corrob- (a), violation of section on the absence subdivision based incident from Sullivan’s and the omission of the orating testimony alleged and, on relying The finding Board refused to the ALJ’s chronology. adopt denial, an Castro’s contained general implied concluded that his statement threat of discharge. statement, has

In the Board that Castro uttered the determining challenged The made a which will not be disturbed on credibility appeal. resolution not, however, We fact the statement made end our inquiry. was does must still determine conclude Castro’s whether the Board could properly statement exercise of employee tended to interfere with the free reasonably under the Act. rights

A review of the was not isolated. record as whole reveals the statement (18th The Board found Castro had on other occasions threatened employees incidents, March). and 30th of the statement Each of these including issue, context, made In this Cas- union activities. during organizational tro’s statement of threats could be construed as of a systematic pattern part and intimidation that would tend to interfere with and restrain reasonably finding the exercise of section 1152 The Board’s rights. affirmed. by Supervisor

Surveillance Robles Tobin, On March the UFW ministry Father organizer entered one and began with three petitioner’s coorganizers camps with a number Filiberto Robles speaking ap- of employees. Supervisor minutes, nothing, stood behind the for two to three said proached, group later, and left. Seven this The employees minutes Robles repeated process. ceased when he returned. his first conversing upon appearance departed the same Father Tobin then to a second proceeded camp, accompanied by silently where he After organizers, standing encountered Robles. again workers, as the whether talked with Robles organizers eventually queried were all Robles denied ever they approaching ... “going stay night.” the workers when were to union they talking organizers. on his state

The ALJ and based testimony credited Father Tobin’s (a), by subdivision ments determined that Robles had violated section The affirmed this finding. unlawful surveillance. Board engaging Surveillance of employee activities which has a reasonable tendency affect the exercise of their section 1152 constitutes an unfair labor rights Co., (Merzoian practice. Brothers (1977) Farm Inc. 3 ALRB Management 3.) No. Such surveillance is when a present supervisor intentionally interjects his and listens to presence conversations between organizers (Dan workers. Tudor & Sons 3 ALRB No. on a Based review of instance, supervisor Robles’ actions in this we conclude that sub stantial evidence exists to the Board’s support finding.

Petitioner asserts that the of Robles in “common areas” presence should alter our not, however, determination. This contention is supported ap- (See plicable precedent. N. L. R. (5th 1978) B. v. Aero Cir. 581 F.2d Corp. 511, 512 [supervisor’s in a did not presence public park preclude finding surveillance]; unlawful Queen N.L.R.B. v. (8th 1972) Cir. Speed F.2d 191 [supervisor’s in a lot did not presence supermarket parking preclude a finding unlawful surveillance].) The Board’s unfair labor prac- is, tice therefore, finding affirmed. Deportation

Threat 6, 1977, On April Rosa one of over- Zendegas, petitioner’s employees, heard supervisor Filiberto Robles admonish two workers not to union sign authorization admonition, In cards. connection with the recalled Zendegas that Robles stated: “We know are and the rancher will you illegal, get you not, out or fire If you. will or we will immigration get you get immigration to take care of you.” Robles did not such state- deny specifically making ments. credible, the ALJ

Although found to be he determined that Zendegas her, because the statements were not directed at she could not characterize them as in serious or jest. the ALJ declined to find coercion Accordingly, in violation of section (a). subdivision The Board reached the opposite conclusion.

Whether statements are coercive is employer normally question within the peculiarly discretion of the Board “because of its sen particular Farms, sitivity the effects of in labor . . (Abatti . context.” speech Inc. v. Agricultural Labor Relations Bd. 327 Cal.App.3d instance, In Cal.Rptr. this after the context in which [165 considering Robles’ statements were made and the conduct widespread illegal by peti tioner, the Board concluded that were but these statements not innocuous rather constituted coercive threats union designed only discourage partic The ipation. Board also noted that the of those individuals who testimony were the to in- specific of these threats would have added targets nothing ferences that could be drawn from all the circumstan- already surrounding ces. This delineation of reasons for its unfair labor evidentiary practice area, finding, with the wide coupled Board’s discretion this requires we affirm that finding.

April Layoffs &6th 7th On 6 and April refused to continue its petitioner employ agricultural elicited, workers. all of According these workers testimony were testified, visible and active how- the UFW. Petitioner supporters ever, affiliation, that the layoffs were not based on the but workers’ union rather, on a need for a reduced work force dictated the end of the thin- season. ning

The ALJ rejected petitioner’s proffered justification business determined that the had been in vi discriminatorily discharged olation of section (a) (c). subdivisions The Board affirmed this finding.

Discriminatory layoffs are prohibited the same manner as discrimina- tory (See Nurseries, discharges. side Sunny Inc. v. Re- Agricultural Labor lations Bd. (1979) 152].) Al- Cal.App.3d 937-939 Cal.Rptr. though petitioner maintained that the was necessitated need layoff force, reduced work the Board’s of antiunion finding animus is supported by “substantial evidence.” The is undermined proffered justification by pe- titioner’s admitted practice retaining employees past thinning opera- tion and season, into the harvest and its own records which payroll indicate that full crews were within two from the date of the working weeks layoffs. we Accordingly, affirm the Board’s finding. Threat of Refusal to Hire in the Future

[] 6, 1977, On June Martinez, worker, Alberto a harvest and Lucy Crespin, a UFW organizer, were with another conversing As employee. employ- ee took a pen card, to an began authorization Jose sign supervisor Castro told angrily him not to and to back to work. Martinez and sign get Crespin proceeded workers, talk other left. later and Castro Castro told Martinez and his brother and them sister-in-law that he would not hire in the future because he now knew were union they organizers.

The ALJ determined that Castro had threatened the Martinez unlawfully family violation of (a). section subdivision The Board affirmed this finding. (1) because Board erred in affirming

Petitioner that the argues sister-in-law, that of his of Martinez did not corroborate testimony to assist with both individuals sought petitioner primarily employment record, that we conclude UFW’s efforts. After reviewing organizing in Although the Board’s finding. “substantial evidence” exists to support witnesses, these are in the testimony principal consistencies present on the substance are to cast doubt inconsistencies minor and insufficient addition, in seeking employ their In of their motive testimony. regardless their chose to credit ment with ALJ and the Board both the petitioner, inherently neither “incredible Because that testimony. testimony [n]or (See, resolution. credibility we are bound the Board’s improbable,” [] ante, at p. [] Carian Robert

Surveillance Munoz, entered petitioner’s organizer, On June Jesus UFW with to converse he began a de facto lunch As during property period. Carian, Carian, ap- Garza, Harry the son of owner Juan Robert employee a few them. After observing and stood about one yard away, proached to em- minutes, next talked him. Munoz Munoz left and Carian followed card authorization Bielma, a union Antonio who was about to sign ployee Munoz, “How do when Carian once Bielma stated again approached. Later the pressure.” think we can with Robert Carian you applying sign Manuel talking employee when Munoz was Carian day, approached eventually Bielma Although Bielma authorization card. about signing he card, testified that at that time. Carian he to do so signed refused area, merely checking grapes. in the but was present for the pur- Carian was present express The ALJ determined that Robert the organizers between conversations overhearing and/or pose observing in unlaw- that Carian had engaged he found employees. Consequently, (a). The Board subdivision ful surveillance in violation of section affirmed this finding. contradic- failed to consider

Petitioner that the Board improperly asserts con- those and Juan Garza give tions in the of Jesus Munoz testimony framework, this argu- in its tradictions Placed weight. proper appropriate resolu- credibility Board’s into another to the challenge ment resolves yet Munoz and Garza testimony the Board to credit the tions. Because chose is not “incredible and because this minor testimony, despite discrepancies, ante, at (See, accurate. we it as must inherently improbable,” accept [] to support evidence” we find “substantial Accordingly, [] Board’s finding.

Violent Activities of Robert Carian 7, 1977, On June Robert Carian hit car with his a UFW organizer’s date, truck. On that same he him pickup seized a UFW organizer spun around in order to see his union identification On June badge.

Carian rammed a UFW car with a tractor and assaulted organizer’s company bodyguard UFW Cesar Chavez. president incident,

With to each respect the ALJ found that Carian had unlawfully interfered with 1153, agricultural in violation of subdi- employees section (a). vision The Board affirmed each finding.

“ ‘Absent evidence compelling imminent need to act to secure persons against danger harm or to harm to physical material prevent interests,”’ tangible property confrontations between union and physical employer representatives are (Vista violations of the Act. Verde Farms v. Agricultural Labor (1981) 307, Relations Bd. 29 Cal.3d Cal.Rptr. [172 720, 625 P.2d 263], Tex-Cal quoting Land Inc. Management, 14, ALRB No. 11, affd. Tex-Cal Land Inc. v. Management, Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335 P.2d Cal.Rptr. 579].) We have reviewed the record and conclude that none of carefully, the violations charged this instance involved an imminent need to secure from persons physical harm or from harm. The Board’s property material therefore, finding, is affirmed.3 Layoffs

June 17th On June petitioner laid off all harvesting employees except those in its living Each of the 13 camps. individuals affected were visible union supporters. Petitioner business reason proffered legitimate Owner, the layoffs. Carian, Harry specifically asserted that fewer em- were ployees needed for the upcoming harvest. Carian admitted Although that this was the first he year had resorted to he testified that in layoffs, previous years workers had left voluntarily.

The ALJ determined that had petitioner discriminatorily discharged violation of section (a) (c). subdivisions The Board affirmed this finding. upholding 3In findings, these reject petitioner’s we arguments that Carian’s actions were

justified on the alleged basis of by UFW acknowledge taking access violations. We do that violence; cannot, however, excess access the union encourages promotes violence be condoned as an appropriate response.

Petitioner its business argues by rejecting justification, proffered Board twice As we have noted testimony. discredited Carian’s improperly in the we are to previously required accept course of this opinion, Board’s unless it has cho- resolutions and derivative credibility any finding sen to credit or testimony inherently which is “incredible improbable.” [] ante, instance, (See, not, credit []) in this Since the Board did such affirmed. testimony, we conclude that its must be finding

Printed Insults 1977, In June among of leaflets distributing petitioner began printing fe- likening workers. One leaflet contained a thinly disguised message male organizers prostitutes.

The ALJ interference in vio- found that this leaflet constituted unlawful lation of (a). finding. section The Board affirmed this subdivision 1155,4 argues on the mandate set forth section Relying petitioner that the leaflet is it contains no threat of reprisal because protected speech force, and is or or 1155 was modeled after benefit. Section promise Act.5 This latter 158(c) to section of the National Labor Relations analogous dividing statute was enacted to free debate on issues encourage not, or however, either a union It was management. designed permit Workers (Linn v. Plant Guard libel employer maliciously opponents. [its] (1966) Conse 383 U.S. 62-63 L.Ed.2d 86 S.Ct. 158(c), the NLRB has section quently, limitations despite imposed involv found not though that certain of views an employer, expressions benefit, In Wol a threat or constitute unfair labor ing practices. promise reference to his 159 NLRB No. for example, employer’s fie’s as the street was construed as waitresses who had been taken off employees leaflets, in a section Petitioner’s this (a)(1), subdivision violation. stance, in a like manner. Conduct such insult and union degrade organizers and avoid the as this has a natural to cause shun tendency therewith, af union and with interfering rights affiliated thus persons decision is forded section 1152 Act. the Board’s Accordingly, of the affirmed. views, any arguments, opinions, or or the provides: expressing 4Section 1155 “The form, thereof, written, con or visual shall not printed, graphic,

dissemination whether in expres if provisions part, evidence of this such practice stitute of an unfair labor under force, sion reprisal promise contains no threat of or or of benefit.” views, 158(c) opinion or the provides: any argument, 5Section or expressing “The form, thereof, written, not con visual shall printed, graphic, dissemination whether in or sub- any provisions stitute of this practice evidence of an unfair labor under chapter, promise of benefit.” expression reprisal if such no threat of or force or contains Eve Election Promises eve, 1977, Carian, election

On June Harry accompanied supervisor Castro, Jose visited With all the workers one of labor camps. petitioner’s kitchen, in in assembled Carian which he ex- delivered a camp speech the current union and enumerated benefits. pressed preference no finished, When he had conditions at two of about employee complained ranches. would be corrected petitioner’s Carian that the conditions promised addition, in promised, higher wages. The ALJ determined that Carian’s statements promising postspeech incidental benefits constituted unlawful interference violation of section (a). subdivision The Board affirmed this finding. ante,

Section 1155 of (see, at 4) Act fn. authorizes specifically and allows employers to voice their unions in the form of opposition argument, opinions, or un- only written material. Such activities constitute fair labor when utilized contain threats of expressions reprisal or force or promises of benefit. With or con- to benefits respect promised ferred, the test is whether those benefits are intended to and do interfere with workers’ organizational (Royal Co. v. rights. Packing Agricultural Labor Relations Bd. (1980) Cal.App.3d Cal.Rptr.

Given the fact instance, that the in this the elec- promises, closely preceded tion were made in the context Carian’s persuade employ- attempt union, ees to vote against it must be there is concluded “substantial evidence” support Board’s finding.

Uncharged Incidents 8, 1977, On June Robert Carian forced a UFW car to organizer’s stop swerving month, front of it with his truck. same pickup During Carian UFW approached organizer Lucy separate on four occasions Crespin and asked her how much for a also stated that charged she trick. He she would make a bed good Workers were and heard Carian’s partner. present comments on each occasion. neither of these incidents was Although in the Board charged found that were intertwined with complaint, they allegations contained therein fully at the The Board litigated hearing. noted that specifically incident to the June swerving was related ante, (see, 249), tractor incident and the insults were related to vulgar ante, the June leaflet (see, 249). incident at p.

A violation not nevertheless be found alleged complaint may when the unlawful was related to and with activity allegations intertwined

in (Doral Country Hotel and the and the matter complaint fully litigated. however, here, are (1979) Club 240 NLRB The incidents at issue alleging not intertwined with of the incidents sufficiently charged. By any in car with the that Carian had rammed a UFW complaint organizer’s against tractor on June was of the need to defend not petitioner apprised con- in complaint the the vehicle-swerving Similarly, allegation incident. re- be the did that it would cerning printed leaflets not apprise petitioner had to Even if the incidents quired defend Carian’s insults. against vulgar been said to with in the charged complaint, petitioner be intertwined those on two occasions had no whether Carian’s conduct these way fathoming asor as in aside the election merely setting considered a factor being had no op- unfair labor in petitioner itself. practices Consequently, to the occur- refuting evidence or portunity gather legal arguments prepare to rence of both the right such violations. Fundamental fairness includes The violations. notice and to defend against charged adequate right labor unfair Board’s that these two incidents constituted finding independent was, therefore, principles to constitutional contrary elementary Nurseries, (See Sunnyside due must aside. procedural be set process (1979) Inc. v. Bd. 933- Agricultural Labor Relations 93 Cal.App.3d 934 152].) Cal.Rptr.

MOSK, J. dissent. I en- consistently that has

It is difficult to be about an employer objective bar- collective unfair labor to gaged practices designed prevent egregious relevant But and be bound by of this court is to consider gaining. duty rewrite My temptation statutes. have succumbed colleagues what con- they Act in order to take Agricultural (ALRA) Labor Relations resist I sider one farm employer. action this appropriate punitive against that temptation. tenets by We are of the ALRA well-settled guided our application “ First, law that in California construction. ‘It a settled

statutory principle no need . there is unambiguous is . . clear statutory language “[w]hen ’ (In re construction, it.” for and courts should not indulge [Citations.]” 694 P.2d Lance W. Cal.Rptr. Cal.3d 886 [210 designated “Representatives Section of the Labor Code that provides a secret of collective selected ballot the purposes unit shall in the bargaining majority agricultural employees added.) 1156.3 details (Italics . . . Section exclusive .” representatives Board Relations Labor for union elections and Agricultural procedures declares in part (ALRB) elections. Section certification those following shall be this parties “only part certified organizations pursuant ” to a legally valid It would be difficult to collective-bargaining agreement. conceive of a clearer scheme ballot as statutory secret elections mandating method only which are agricultural employees’ bargaining agents be selected.

The majority breach this of construction longstanding statutory principle and stretch the plain of the ALRA for the of language purpose justifying their action punitive the against But even if we were to employer. disregard the statute, of plain language would find no majority’s holding sup- This is so port. because a second well-settled rule that “In declares con- struing constitutional and statutory whether enacted provisions, by Leg- initiative, islature or by the intent of the is the enacting body paramount W, consideration. (In re Lance 37 Cal.3d at p. [Citations.]” I need borrow only quotations from the majority demonstrate opinion straightforward intent of the and of the who enacted proponents legislators Act, ALRA: our we allow one only way recognition “[U]nder that’s through secret ballot election.” before Sen. Industrial Rela- (Hg. Com., 21, tions 1975, 51, May comments of then p. Secretary Agricul- ture and Bird.) Services is a secret ballot in all cases. “[T]here [election] corns, (Id., 59, ...” else, p. of Sen. all Dunlap.) “[A]bove [the ALRA] secret requires ballot elections in instance.” before every (Hg. Assem. corns, Com. on Relations, Labor 2, May of Assemblyman p. Berman.)

The absolute, majority over these leap statements the AL- unqualified RA’s authors and major and settle on a rule of supporters they construction believe justifies their desired result. that we must read They urge the statute in a manner that will law, promote of the and cite to the act’s purposes preamble and 1975, broad (Stats. Sess., statement of Third Ex. ch. policy. 1, 4013; Code, Lab. p. 1140.2.) § But these sections do not support § either, their holding because a third settled rule that decrees statutes specific prevail over such general provisions. (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 420 546 P.2d Cal.Rptr. [128 687].) back, Thus we come once to the sections of the again, unambiguous ALRA that specifically secret ballot prescribe elections as exclusive means to obtain Code, ALRB certification of a (Lab. union. 1156 et seq.) §

The on majority rely NLRB v. Gissell Co. U.S. 575 Packing L.Ed.2d However, 89 S.Ct. clearly [23 Gissell is inapposite 1918]. because it involves the (NLRA), National Labor Relations Act a statute different from the ALRA 9(a) in a most of the fundamental Section respect. NLRA that provides or selected for the “Representatives designated pur- poses collective of the in a unit bargaining majority . collective . . shall be ... for the the exclusive representatives purposes “ how not 9(a) ...” Because section does

bargaining. specify precisely [] chosen, an employer is to be it was that representative early recognized [the] ‘con- had a duty whenever the union bargain representative presented ” U.S. at (Gissell, supra, evidence of vincing support.’ majority how a contrast, L.Ed.2d In the ALRA clearly specifies at election, and only by is to be a secret ballot representative chosen—by means.

The distinction to rationalize this fundamental majority away attempt a result that the order in Gissell issued as explaining remedy, was a unfair labor Thus the order employers’ practices. than a 8(a)(5), under rather NLRA section the unfair practices, the decision under recognition Similarly, urge majority, section 9. Thus, they ALRB has broad unfair labor authority practices. remedy contend, a a order as such ALRB issue may Gissell-type bargaining remedy.

This it is of the NLRA’s argument overlooks the fact that because blithely that as to the method of ambiguity bargaining representatives selecting as a National Board orders (NLRB) Labor Relations issue may . the one remedy. 9(a) ‘desig- “Since . . to the as representative refers § pre- nated or without specifying selected’ a by majority chosen, [ajlmost incep- how . . . from the cisely that is to be representative tion of the it did have to be certified Act... that a union not recognized it could as the winner of a Board election to invoke a bargaining obligation; labor practice establish under the unfair status other means majority (Gissell, óf . .” 596-597 8(a)(5) . . 395 U.S. at provision pp. § L.Ed.2d at p.

The readily appar- our own thus between federal act and disparity is to how ent. Because former on a representative no provides guidance chosen, remedy a the NLRB as may designate representative ALRA, however, clearly prohibits unfair labor The employer’s practices. has unless that organization of an as recognition organization representative not designate won a secret It the ALRB may ballot election. follows that representative. before years

The was decided six overlook the fact that Gissell majority stat- of the California the ALRA supporters Thus authors and hearings. it. chose not to prescribe ute were well aware of the remedy, federal statute, of a precise However it terms might appear ignore attractive Wright Justice not The late Chief fantasy. we are permitted indulge did “If Parliament Herbert on statutory interpretation: often A.P. quoted said, so?” it did it not say not mean what why under- who would of employers not mean to condone the activities

I do court, not as as a But we sit activities. mine labor organizational proper matter how no mandates statutory adhere to and we must body, legislative reach an appealing order to our duty it be to may disregard tempting be annulled. and should The order exceeded its jurisdiction result. board’s Lucas, J., concurred.

Case Details

Case Name: Harry Carian Sales v. Agricultural Labor Relations Board

Court Name: California Supreme Court

Date Published: Aug 1, 1985

Citation: 703 P.2d 27

Docket Number: L.A. 31890

Court Abbreviation: Cal.