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Court of Appeal, Third District, California.


Civ. 17464.

Decided: August 15, 1979

Littler, Mendelson, Fastiff & Tichy, Randolph C. Roeder and David S. Durham, San Francisco, for petitioner. Harry J. Delizonna, San Jose, Dennis M. Sullivan, Marvin J. Brenner and Thomas Sobel, Sacramento, for respondent. Marco E. Lopez, Keene, Carlos M. Alcalea, Francis E. Fernandez, San Francisco, Carmen C. Flores, Jerome Cohen, Salinas, William H. Carder, San Francisco, Ellen Greenstone, Tom Dalzell, Sanford N. Nathan, Deborah W. Peyton, W. Daniel Boone, Glenn Rothner, E. Michael Heumann, II, Linton Joaquin, Dianna Lyons, Kirsten L. Zerger, George C. Lazar and James Rutkowski, Salinas, for real party in interest.

By this petition for writ of review, petitioner Vista Verde Farms (Vista Verde) seeks to have annulled the decision of the Agricultural Labor Relations Board (ALRB) which found Vista Verde guilty of unfair labor practices and ordered it to take remedial action.

Vista Verde, a 2,300-acre farm producing row and field crops, employs Sylvester Dumlao as its general manager. He has been employed by Vista Verde since 1954. Dumlao procures some of his work force through several local farm labor contractors. Alphonso DeDios, whose son Bobby works for him as head foreman, is one of the farm labor contractors utilized by Vista Verde on occasion. During the last week of August 1975, DeDios supplied Vista Verde some farm labor. The DeDios were not called upon again until September 18, 1975.

DeDios and the other labor contractors, when called upon by local farmers, take the workers to the fields (and return); in some instances the workers drive themselves. The farmers, and specifically Vista Verde, do not reimburse any transportation costs. The labor contractor and his foremen supervise the crews' performance, tally their work hours, and charge the farmers for gross wages accumulated at the end of the day. Vista Verde pays the contractor the charged sum, and does not make any deductions required of an employer (i. e., withholding for taxes, etc.). The labor contractor, not the farmer, is responsible for unemployment insurance, workers' compensation, and all other workers' benefits. The workers take up any pay disputes with the labor contractor, not with the farmer. Vista Verde, as other farmers using the labor contractors, has no management rights over the contractors used. Dumlao had never discussed with any member of the DeDios family, nor any other labor contractor, what to do if union organizers come onto the contractor's property or whom they should allow on their property. Neither Dumlao nor Vista Verde has any ownership interest in DeDios' or any other labor contractor's labor camp property or labor contracting business, and no written agreement exists between Vista Verde and any contractor, regarding the use of the contractor's workers.

At 2:30 p. m. on September 13, 1975, Dumlao was informed by his office manager that a worker's representation election was to be held at Vista Verde the next day.1 He went into the fields and told the crews still working about the election. He then drove to the labor camps of contractors used within the payroll period immediately preceding the filing of the election petition to advise workers eligible to vote in the Vista Verde election.

Dumlao arrived at the DeDios labor camp at 6:30 p. m. and observed sheriff's cars and Bobby DeDios standing alongside a sheriff's deputy talking to some union organizers. He parked his truck in back of the labor camp (50 to 100 feet from the sheriff's cars) and walked to Alphonso DeDios' house trailer and sat down on the front step. From this vantage point, about 150 feet from Bobby, the union organizers and sheriff's deputies, Dumlao observed Bobby and the sheriffs speaking to the organizers for a few moments, after which Bobby and a deputy sheriff came to the trailer to use the telephone. As Bobby walked past Dumlao, he mentioned he was trying to get the organizers to leave but they had refused. Dumlao made no reply. Bobby and the deputy went in the trailer and then walked back to the union organizers. Nothing was said to Dumlao by either Bobby or the sheriff's deputy. After more conversation not audible to Dumlao, one of the sheriffs handed a piece of paper to each of the organizers and they left. Twenty-five to thirty agricultural laborers (some of whom were eligible to vote in the Vista Verde election) were standing in the vicinity of Bobby, the sheriffs, and the union organizers, as these events transpired. Dumlao did not witness any shoving, chasing, physical contact, or violence of any sort while he was there; he didn't speak to the sheriff's deputies and didn't talk to DeDios about the incident; he had not spoken to DeDios about the impending election prior to his arrival.

After the union organizers and the sheriff's deputies had departed, Dumlao advised the workers that an election was to be held the next day and he invited their participation. Although Bobby remained in the area while Dumlao spoke with the workers, he didn't participate in the discussion.

Prior to Dumlao's arrival, Jan Peterson, an organizer for the United Farm Workers Union (UFW), had gone to the DeDios labor camp to tell the workers about the Vista Verde election the next day and offer them a ride to the polling place. She had been there about 20 minutes when Bobby DeDios drove up in his truck, told her and her two male companions to leave, and began to push the two men around. Peterson insisted she and her companions had a right to be there and suggested that Bobby get the sheriff if he wanted to evict them from his property. The pushing incident was observed by 8 to 15 workers from a distance of 15 to 20 feet. After Bobby left, Peterson continued on about her business of going from door to door talking to the workers. It is uncontradicted that Dumlao had no knowledge of any of these events when he arrived at the DeDios labor camp and that he could not have learned about them until after the organizers and sheriff's deputies had departed.

At about 6 p. m., Pancho Medrano, one of Peterson's fellow organizers, came to get her, telling her the police had arrived. Peterson first testified that Bobby DeDios was standing near the officers and Sylvester Dumlao was standing alongside him. She later reversed her testimony and admitted Dumlao was by the trailer some distance away. Dumlao did not engage in any conversation with Peterson or any of her fellow organizers, nor did DeDios mention Dumlao's name at any time.

The ALRB hearing officer concluded that even though Vista Verde's and the DeDios' business operations were entirely separate and despite the fact that it was “clear that the conduct of Bobby DeDios . . . was not specifically encouraged, authorized, abetted, participated in or ratified by Vista Verde Farms,” Vista Verde should nonetheless be held vicariously liable for DeDios' actions. He construed Labor Code section 1140.4, subdivision (c),2 as imposing strict liability upon any agricultural employer utilizing a labor contractor's services for the acts of the contractor.

On review, the ALRB reached the same result, but utilized a different reasoning process. It construed Labor Code section 1140.4, subdivision (c), to mean that a farm labor contractor is excluded from the definition of “agricultural employer” Only when functioning in the capacity of a labor contractor, i. e., when retained by an agricultural employer to supply workers for that employer's operations. When a labor contractor is not so retained, the ALRB reasoned, he May be considered an “agricultural employer” and may thus be capable under the ALRA of committing an unfair labor practice. The ALRB noted that DeDios could have been primarily charged with, and personally held responsible for, an unfair labor practice by allegedly interfering with the workers' right to engage in concerted union activity. (Lab.Code, s 1153, subd. (a); cf. Lab.Code, s 1152.)

However, DeDios was not a party to the unfair labor practice proceeding; in finding an unfair labor practice, the ALRB held Vista Verde vicariously liable for DeDios' conduct. It determined: (1) Vista Verde was liable under an agency theory because Dumlao, by failing to disavow DeDios' conduct to the workers, “impliedly ratified” the labor contractor's actions; and (2) within the agency, DeDios was “at least constructively engaged” as a supplier of labor for Vista Verde at the time of his conduct.

The only issue to be resolved is whether the record when considered as a whole discloses substantial evidence to support the board's findings. We conclude it does not.

Labor Code section 1160.8 and Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 156 Cal.Rptr. 1, 595 P.2d 579, utilizing verbatim the language contained in the National Labor Relations Act (29 U.S.C.A. s 160(f)), provide that “The findings of the board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall . . . be conclusive.” In Universal Camera Corp. v. National L. R. Bd. (1951) 340 U.S. 474, at page 491, 71 S.Ct. 456, at page 466, 95 L.Ed. 456, at page 469, the Supreme Court stated, “Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals” and further stated at 340 U.S. at page 490, 71 S.Ct. at p. 466, 95 L.Ed. at pp. 468-469, “courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.”

In LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 636-637, 83 Cal.Rptr. 208, 215, 463 P.2d 432, 439, the California Supreme Court rejected the “any evidence” and “any substantial evidence” rules firmly applied in workers' compensation cases and established a standard requiring a view of the “entire record to determine whether the board's conclusion was supported by substantial evidence.”

In our inquiry as to whether the board's findings and order were supported by “substantial evidence on the record considered as a whole,” we conclude that when considered as a whole, rather than substantial evidence, there is less than a scintilla of evidence.

Respondent earnestly urges us to view the evidence and conclude, as it did, that by silently observing from afar some distance away as Bobby DeDios had sheriff's deputies cite two union organizers for trespass, and by failing to repudiate the incident in his subsequent conversation with the workers, Dumlao's action “could only be interpreted” as a ratification of DeDios' conduct. We cannot.

The record discloses that the ALRB's finding to this effect is virtually based on inferences drawn from a silent record. Typical of the evidence relied upon is the following portion of Dumlao's testimony:

“Q: Now, during that period of time that you were there (at the labor camp) and the labor organizers were there, did you see any shoving?

“A: No.

“Q: Did you see any chasing of any individuals?

“A: No.

“Q: Did you see any physical contact of any sort at all?

“A: None.

“Q: Did you see any violence of any sort?

“A: No.

“Q: Now, did it ever occur to you at that time or after that time to repudiate to anyone what you had seen that day?

“A: No.

“Q: Why not?

“A: I didn't see anything to repudiate. They were in discussion. The sheriffs seemed to have everything well in hand, and I didn't want to get involved.”

We also observe that none of the workers from the camp testified at the hearing; there is a total absence of evidence of the workers' reaction to DeDios' actions, or what they thought Vista Verde's involvement was. While the absence of worker testimony is not determinative of the issue of implied ratification, its absence adds nothing to the scant evidence in support of respondent's decision. (See e. g. National Labor Relations Board v. Mayer (5th Cir. 1952) 196 F.2d 286.)

Considered as a whole (Lab.Code, s 1160.8), the record does not disclose sufficient evidence to close the gap and furnish a legally sufficient basis for the ALRB's finding of “implied ratification.” The fact that neither Dumlao nor DeDios liked the union does not transmute Dumlao's conduct at the DeDios labor camp on September 13, 1975, into a ratification of Bobby DeDios' conduct.

Since the evidence produced by each party is basically in accord with the facts as we have summarized them, the board's decision may be analyzed to determine its correctness as a matter of law. (Cf. A. H. Robins Co. v. Department of Health (1976) 59 Cal.App.3d 903, 907, 130 Cal.Rptr. 901.) Respondent has cited several NLRB cases upon which it relies as support for its assertion that the finding of agency is correct as a matter of law. (See Lab.Code, s 1148.)

“ In determining responsibility for (anti-)union activities, the principles of agency and its establishment are to be construed liberally.” (N. L. R. B. v. Arkansas-Louisiana Gas Company (8th Cir. 1964) 333 F.2d 790, 795.) The determination of whether a third party's acts were Actually authorized or subsequently ratified by the employer is not necessarily conclusive on the question of agency. (29 U.S.C.A. s 152(13); Lab.Code, s 1165.4.) Rather, the court must determine, upon looking at the record as a whole, whether the activities in question would create an impression of agency among the affected employees. (See National Labor Relations Board v. Mayer, supra, 196 F.2d at p. 288.)

Even the most liberal construction of agency principles cannot bring this case within the agency principles established in the NLRB cases relied upon by respondent. In International Asso., etc. v. National L. Rel. Bd. (1940) 311 U.S. 72, 61 S.Ct. 83, 85 L.Ed. 50, the record revealed a lengthy history of company hostility toward one union and favoritism toward another; the questioned acts extended over a period of several weeks, during which company supervisory employees campaigned vigorously against the new union. (311 U.S. at pp. 75-81, 61 S.Ct. at pp. 86-89, 85 L.Ed. at pp. 53-57.) In N. L. R. B. v. Arkansas-Louisiana Gas Company, supra, 333 F.2d at pages 792-793, prospective employees were questioned by hiring and supervisory personnel about their union sentiments and were informed of the company's anti-union feelings before they were hired. In National Labor Relations Board v. Mayer, supra, 196 F.2d at page 288, an employer's onetime bargaining representative solicited workers' signatures on a letter purporting to disavow the union's status as its bargaining agent; the court held No agency relationship could be established. In Hyster Company v. N. L. R. B. (5th Cir. 1973) 480 F.2d 1081, agency was not found between the employer and a close friend and prominent community leader who made anti-union remarks to prospective company employees. The court noted that there was “no definite evidence that (the third party) was overly clothed with apparent authority to act for the company, or that the company knew of the content of his conversations with employees, such as to place a duty of disavowal on the company.” (P. 1083.) And in Colson Corporation v. N. L. R. B. (8th Cir. 1965) 347 F.2d 128, Henry I. Siegel Co. v. N. L. R. B. (6th Cir. 1969) 417 F.2d 1206, and Amalgamated Clothing Wrks. of America v. N. L. R. B. (D.C.Cir. 1966), 125 U.S.App.D.C. 275, 371 F.2d 740, findings of agency relationships were predicated upon a number of factors not found in the present record. In each case the company knew, or was aware of facts from which it should have deduced, that outsiders were directing anti-union discourses at the companies' employees. In such circumstances, it was held, the company had a duty to disavow the acts of its outside “friends.”

Sylvester Dumlao's failure to disavow any employer association with Bobby DeDios' actions (i. e., having the UFW organizers cited for trespass) could not, as a matter of law, constitute ratification and support a finding of agency under the ALRA.

As an alternative basis for finding that Vista Verde was liable for the acts of Bobby DeDios, the ALRB concluded that (1) under Labor Code section 1140.4, subdivision (c), an agricultural employer could be held liable for the acts of any labor contractor whose services it engaged, and (2) DeDios was “constructively engaged” by Vista Verde at the time of the incident in question, since there was evidence that DeDios' services had been used intermittently by Vista Verde for a period of years and were in fact used again a week after the labor camp incident.

In essence, respondent and real party contend that Labor Code section 1140.4, subdivision (c), imposes strict liability on agricultural employers for acts committed by farm labor contractors with whom they have done business, if the acts constituted an unfair labor practice. This construction of section 1140.4, subdivision (c), is necessary, they urge, to insure that acts of farm labor contractors are controlled under the ALRA. They intimate that all the misdeeds of farm labor contractors will go unpunished if employers are not made strictly liable for the contractors' actions under the ALRA. The contrary is true. Farm labor contractors are subjected to statutory regulations as farm labor contractors under both California and federal law. (See Lab.Code, s 1682 et seq.; 7 U.S.C.A. s 2041 et seq.) We find no suggestion in the ALRA that farm labor contractors must be regulated As employers are regulated in order to further the purposes of the ALRA. Had the Legislature so intended, they could have so stated. They did not.

In support of the argument, they refer to the very general “liberal construction” language of Labor Code section 1140.4, subdivision (c),3 and to the final sentence of the section which provides, “(t)he employer engaging such labor contractor or person shall be deemed the employer for all purposes under this part.”

The words of the statute plainly state that farm labor contractors are not “agricultural employers” under the ALRA and that only “agricultural employers” are capable of committing unfair labor practices against a union. (Cf. Lab.Code, s 1153.) The unfair labor practice provisions of the ALRA were intended to provide a procedure pursuant to which rights that arise out of, or pertain to, the employer-employee duty to bargain in good faith may be given meaningful enforcement. Respondent and real party concede that farm labor contractors are definitionally excluded from the “employer” classification insofar as it pertains to the collective bargaining process. It logically follows that farm labor contractors must be excluded from the definition of persons (i. e., “agricultural employers”) whose actions may furnish the basis of an unfair labor practice allegation, since unfair labor practice procedures are intended as enforcement mechanisms for the duty, imposed only on the statutory employer, to bargain in good faith.

“The exclusion of farm labor contractors from ALRA coverage as agricultural employers reflects a deliberate legislative choice. The creation of stable collective bargaining relationships in agriculture is hindered by shifting employment and fluidity of the work force. To class farm labor contractors, along with farmers and farmer associations, as parties to collective bargaining would augment the difficulties. In the process of creating a collective bargaining relationship from the initial organizing efforts, into the petition and election stages and ultimately to the contractual culmination the statute views farmers or associations of farmers as the only employers (see ss 1156-1159). A farm labor contractor may actually hire, supervise and pay the workers, becoming their actual employer (see, s 1682, subd. (b), . . .). The ALRA excludes him from the statutory category of agricultural employers because he is excluded from the unionization and collective bargaining processes.” (Emphasis added; People v. Medrano (1978) 78 Cal.App.3d 198, 207, 144 Cal.Rptr. 217, 223.)

We reject the contention that strict liability must be imposed on agricultural employers for acts of farm labor contractors whose services are engaged. There is no legal or factual basis to support the finding of liability on the part of Vista Verde for the action of the labor contractor.

By reason of our conclusion, we need not dispose of the issues presented regarding the propriety of the remedial order promulgated by the ALRB.

A peremptory writ shall issue directing the ALRB to set aside its decision and order in case number 75-CE-5-S, entitled “VISTA VERDE FARMS, (DMB PACKING CORP. d/b/a), Respondent, and UNITED FARM WORKERS OF AMERICA, AFL-CIO, Charging Party” and to enter instead an order of dismissal.

Petitioner shall recover its costs pursuant to California Rules of Court, rule 26.


1.  An election petition had been filed on September 3 or 5, but on September 10 an ALRB representative told Dumlao no election would be held. After reversing itself on September 13, the ALRB held an election on September 14. The election was subsequently set aside for lack of proper notice. Labor Code section 1156.3, subdivision (a), requires “due notice” be given, and other provisions of that section make it clear that a period of less than 24 hours (from 2:30 p. m. to sometime the following morning) is not “due notice.”

2.  Labor Code section 1140.4, subdivision (c), provides: “The term ‘agricultural employer’ shall be liberally construed to include any person acting directly or indirectly in the interest of an employer in relation to an agricultural employee, any individual grower, corporate grower, cooperative grower, harvesting association, hiring association, land management group, any association of persons or cooperatives engaged in agriculture, and shall include any person who owns or leases or manages land used for agricultural purposes, but shall exclude any person supplying agricultural workers to an employer, any farm labor contractor as defined by Section 1682, and any person functioning in the capacity of a labor contractor. The employer engaging such labor contractor or person shall be deemed the employer for all purposes under this part.”

3.  Section 1140.4, subdivision (c), provides in pertinent part: “The term ‘agricultural employer’ shall be liberally construed to include any person acting directly or indirectly in the interest of an employer in relation to an agricultural employee . . . But shall exclude any person supplying agricultural workers to an employer, any Farm labor contractor as defined by Section 1682, and any person functioning in the capacity of a labor contractor. . . .” (Emphasis added.)

EVANS, Associate Justice.

PUGLIA, P. J., and REGAN, J., concur.

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