SUNNYSIDE NURSERIES INC v. UNITED FARM WORKERS OF AMERICA AFL CIO

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Court of Appeal, First District, Division 3, California.

SUNNYSIDE NURSERIES, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

Civ. 46725.

Decided: March 19, 1981

Littler, Mendelson, Fastiff & Tichy, A Professional Corporation, Jordan L. Bloom and Michael J. Hogan, San Francisco, for petitioner. Ellen Lake, Chief of Litigation, Manuel M. Medeiros, Asst. Chief of Litigation, Daniel G. Stone, M. Jeffrey Fine, Counsels, Agricultural Labor Relations Bd., Sacramento, for respondent. Marco E. Lopez, Carlos M. Alcala, Francis E. Fernandez, Carmen S. Flores, Federico G. Chavez, Ellen J. Eggers, Keene, Dianna Lyons and Daniel A. Garcia, Sacramento, for real party in interest.

This petition by an agricultural employer asks us to invalidate an election on the ground that Korean workers were disenfranchised and because of an alleged racial appeal by an employee. We have concluded that the board's failure to furnish Korean language ballots does not render the election invalid per se and that substantial evidence supports the board's conclusion that other measures effectively advised the Korean workers of voting procedures. We also have found substantial evidence to support the board's conclusion that there was no improper racial appeal by the union. However, because the board automatically imposed the “make-whole” remedy in violation of the decision in J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306, we remand for reconsideration of the penalty for the employer's unfair labor practice.

The Korean Ballot Issue

On August 28, 1975, the Agricultural Labor Relations Act took effect, providing for representational elections at the request of agricultural employees. (Lab.Code § 1140 et seq., as added by Stats.1975, ch. 1, § 2, pp. 4013-4034; see Review of Selected 1975 California Legislation (1976) 7 Pac.L.J. 237, 444.) On October 8, 1975, the United Farm Workers of America (UFW or union hereafter) filed a petition calling for an election among petitioner's employees and specifically requesting 30 ballots in the Korean language (in addition to the English and Spanish ballots routinely provided). In a response written the next day, the employer also asked for Korean ballots. Elise Manders, the board agent assigned to the election, immediately called Agricultural Labor Relations Board (ALRB or board hereafter) headquarters in Sacramento to request these ballots. She was assured they would be provided.

The election was scheduled for October 15, 1975. Two days earlier, at a preelection conference, both the union and the employer renewed their requests for Korean language ballots. Celia Trujillo, a board agent assigned to assist Ms. Manders, assured the parties that the Korean ballots had been requested and would be provided. The employer's offer to use the company plane to fly to Sacramento for the ballots was rejected.

On October 14, 1975, the day before the election, Ms. Manders called Sacramento to see about the ballots. She was told they had already been sent. She requested that additional copies be sent by Greyhoud bus, but was told there were no copies retained and that there was not enough time to obtain another translation.

The following morning, when the ballots had not arrived, Ms. Manders informed the parties of the problem. Both the employer and the union requested that the election be postponed, but Ms. Manders, apparently under the belief that the requirement that the election be held within seven days of the petition could not be waived,1 required the election to proceed.

Ms. Manders asked the employer to choose a nonsupervisory employee who spoke English and Korean and could serve as an interpreter. Mr. Sho Yoshida, petitioner's vice president, chose Mr. Choi. Initially, the union representative objected to the employer's designation of an interpreter, but when it was decided that Mr. Choi would also act as one of the company's election observers, the union agreed to the procedure.

The parties disagree about Mr. Choi's ability to understand English. Ms. Manders testified that Mr. Choi told her that he understood her. However, Mr. Choi testified that he did not understand her and that comprehension was so difficult there was no point for him to inform her he could not understand because he would have been unable to understand whatever she explained. Another company observer testified that Mr. Choi would speak to her in English when she needed him to do maintenance work and that if he did not understand her he would so advise her. An employee on the same work crew as Mr. Choi testified that he received his work instructions from Mr. Choi, who first received them in English from the supervisor. At no time did the employer or any representative advise Ms. Manders that Mr. Choi in fact was not functionally bilingual.

Before the election, Mr. Sho Yoshida spoke to Mr. Choi in Japanese, explaining the election rules to him. Then Ms. Manders worked with Mr. Choi on preparation of a sample ballot to be shown to the Korean workers. Ms. Manders took a long piece of yellow paper and drew an Aztec eagle symbol on the left-hand side and wrote the words “United Farm Workers” underneath the eagle. She then drew a circle with a slash mark and the word “no” inside the circle on the right side of the ballot and wrote the words “no union” underneath. She asked Mr. Choi to write the words “United Farm Workers” in Korean underneath the same English words and to write the words “no union” in Korean under their English counterpart. Mr. Choi testified that Ms. Manders pointed to the two sides of the ballot, but that he understood her to say “I like it,” when she pointed to the left side of the ballot, and “I don't like it,” when she pointed to the right side. At the hearing, the Korean translator translated the Korean characters used by Mr. Choi as meaning “agree”' or “yes” on the left side and “reject” or “no” on the right side. The actual ballots were on blue printed paper with various voting instructions in English and Spanish, and were similar to the sample ballot in that they contained the Aztec eagle and international “no” sign on the left and right sides, respectively, but below the symbols were English and Spanish versions of “United Farm Workers of America” and “No Union” with no Korean translation.

About 16 Koreans voted (184 total votes were cast), nine of whom were in Mas Kato's crew. As each crew arrived, board agent Trujillo explained the voting procedures in both English and Spanish and held up copies of both the official ballot and the sample Korean ballot prepared by Manders and Choi. When the Mas Kato crew arrived it also received instructions in Japanese from a board agent who arrived at the election site during the course of balloting.

The parties disagree about the circumstances of Mr. Choi's efforts to explain the Korean sample ballot to the Korean employees. Ms. Manders testified that as each Korean approached the registration table she asked Mr. Choi to hold up the sample ballot and explain where to put the marks for union or non-union votes. She was standing just in front of Mr. Choi and she heard him speaking in a foreign tongue each time. She testified that she told Mr. Choi to tell the Korean voters that if they had any questions they should ask. Mr. Choi performed his task on a phrase by phrase basis as he received his instructions from Ms. Manders. At one point Mr. Choi seemed to be carrying on a conversation with a Korean voter, so Ms. Manders stopped him and told him he should only translate. None of the Korean employees asked any other questions.

Mr. Choi testified that Ms. Manders told him to hold the paper up and as the Koreans came along to show them that one side meant agreement and the other meant disagreement or opposition. He testified that when he met the Koreans he held up the paper and told them which side meant support and which meant opposition. Only one Korean worker tried to talk to him. Petitioner makes the assertion that Ms. Manders did not repeatedly speak to Mr. Choi during the election, and argues that in any case it is uncontradicted that he could not comprehend what she was saying. Petitioner relies upon the testimony of a company observer who testified that she did not recall Ms. Manders speaking to Mr. Choi at any time after the beginning of the election and that she did not recall Mr. Choi speaking to any of the voters except those whose conversations Ms. Manders interrupted. Petitioner relies as well upon the fact that agent Trujillo could only recall Ms. Manders making sure that Mr. Choi asked the Koreans if they had any questions.

The election was conducted under the foregoing procedures and only one ballot was voided because it was marked improperly. The union won, but the election was close enough that the results could have been affected by 15 or 16 Korean voters' ballots. After the balloting, the three company observers (as well as union and board observers), including Mr. Choi, signed a certification stating that the “balloting was fairly conducted, that all eligible voters were given an opportunity to vote their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.”

Shortly after the election, petitioner filed a petition to set aside the election. On May 8, 1978, after a prolonged delay in the administrative process, the investigative hearing examiner issued her decision recommending that the union be certified as the exclusive bargaining representative of the employees. The ALRB adopted the hearing examiner's recommendation and certified the union. When the union requested petitioner commence bargaining, petitioner declined, and these unfair labor practice proceedings followed to test the validity of the certification. Relying upon the same record as presented in the certification proceeding, the board ruled that petitioner's refusal to bargain with a properly certified union constituted an unfair labor practice. This petition challenges that decision.2

Petitioner contends that the election was invalid per se because Korean language ballots were not provided. Alternatively, petitioner argues that the uncontradicted evidence shows that the Korean voters did not understand the ballot and that the board's efforts to assist the Korean voters were ineffectual. Petitioner alleges an abuse of discretion by the board in disregarding the testimony of the Korean voters.

Labor Code section 1156.3, subdivision (a)(4), provides in part: “The board shall make available at any election under this chapter ballots printed in English and Spanish. The board may also make available at such election ballots printed in any other language as may be requested ․” A regulation promulgated by the board provides that “[w]here practicable, requests for additional foreign languages on the ballot will be granted.” (Cal.Admin.Code, tit. 8, § 20320.)

We have found no authority addressing the question of whether an election under the Agricultural Labor Relations Act is invalid per se when ballots in a requested language are not provided. No such case has been found under federal labor law, which the board is to follow if “applicable.” (Lab.Code, § 1148; Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 412, 128 Cal.Rptr. 183, 546 P.2d 687.) Although we agree with petitioner that foreign language ballots should be provided whenever practicable and that when necessary, elections should be postponed to secure them, we cannot accept the argument that elections in which they are unavailable must be ruled invalid per se. Such a ruling would contravene the import of the Legislature's use of the term “may” in describing the board's obligation to furnish ballots in languages other than Spanish and English.

Having declined to establish a per se rule, we must now focus upon whether the election here was rendered unfair by failure to supply Korean language ballots. It is the stated policy of the ALRB “to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing, …” (Lab.Code, § 1140.2.) That policy cannot be effected in an election which fails to meet minimum standards of fairness. (See Marriott In-Flite Serv. Div. of Marriott Corp. v. N. L. R. B. (5th Cir. 1969) 417 F.2d 563, 566-567.)

In arguing that the election was unfair, petitioner places great emphasis upon testimony by 10 Korean voters concerning their understanding or lack of understanding of the election procedures. The hearing officer rejected the testimony of the Korean voters because she found their testimony not credible, explaining that her ruling was based on her assessment of their demeanor and of inconsistencies in their testimony. The board, while disregarding the testimony of the Korean witnesses, declined to base its rejection upon credibility. Instead, it found the testimony “too inherently speculative in view of its subject matter and the passage of time.”

The five days of testimony by the Korean voters is not easily summarized. However, there were several consistent threads in the testimony on direct examination: (1) the Korean voters had little or no familiarity with English; (2) the voters did not understand the ballot, they received; (3) had there been a Korean language explanation on the ballot, voting would have been easier; (4) no one spoke to them in Korean at the voting site. However, some of the Koreans barely remembered the election and those who claimed some memory of the election were vague about some of the details. Only three could recall Mr. Choi having held up the sample Korean ballot for them to see.

Cross-examination made strikingly evident the fact that the Korean employees were barely or not even aware of the existence of the union, what it represented, and whether it was a good thing. When they testified that a Korean language explanation would have been helpful, they frequently explained that what they needed was an explanation of what the union was. Only one Korean voter recognized the Aztec eagle as the union symbol prior to the election.

The determination of fairness of the election rests primarily upon the factual determination of whether the board's methods were effective in assuring that the Korean voters understood how to register support for or opposition to the UFW as employee representative. “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.” (Lab.Code, § 1160.8; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346, 156 Cal.Rptr. 1, 595 P.2d 579.)

The essence of petitioner's position is that by disregarding the testimony of the Korean voters and by discrediting Mr. Choi's testimony about his lack of understanding of the English language and of the instructions he received from Ms. Manders, the board failed to accept the only substantial evidence concerning the effectiveness of the board's attempts to remedy the problem caused by the missing ballots. We cannot accept the proposition that the board was required to credit the evidence presented by the only witnesses who spoke Korean and to discredit as insubstantial the cumulative circumstantial evidence indicating that the Korean voters were properly advised of the procedures for making their voting choices.

Both Ms. Manders and Mr. Choi testified that as each Korean worker approached Mr. Choi he would explain to the person which side indicated support and which indicated opposition. While Mr. Choi's understanding of English was in some dispute, the conclusion that he was functionally bilingual is supported by substantial evidence in the form of testimony that he interpreted for Koreans on the job, he performed maintenance tasks requested in English, he did not tell Ms. Manders he could not understand her, he appeared to follow her instructions by explaining the Korean language ballot to each Korean voter, and he was picked by the employer to act as the election interpreter, with the employer voicing no reservations about his abilities.

In face of this substantial evidence that each Korean voter was individually advised of voting procedures by a bilingual observer/translator, the testimony of the Korean workers concerning their confusion during the election could properly be viewed with suspicion by the board. The suspicion is enhanced by the testimony of the Korean voters that no one spoke to them in Korean, when Mr. Choi himself testified otherwise. When the testimony of the Koreans is read in its entirety, it becomes clear that the primary source of any confusion during the election was not the ballot itself, but the choices available to the Koreans, who were being asked to support or reject an organization they knew little or nothing about.

The board's obligation was to provide for fair balloting procedures. Informing the Korean workers about the union and its benefits or detriments was the task of the union and employer. Under the substantial evidence rule we must uphold the board's determination that the lack of Korean language ballots did not render the election unfair.

Petitioner contends that National Labor Relations Board precedents require us to rule otherwise. However, each of the cited cases was decided upon facts different from those present here. In Fibre Leather Mfg. Corp. (1967) 167 NLRB 393, the bilingual observers volunteered assistance only to four to six out of 15 to 20 Portuguese-speaking employees. The National Labor Relations Board, as fact finder, was not satisfied that the conditions under which the election was conducted were such as to assure the effective and informed expression by all employees of their true desire. Similarly, Thermalloy Corp. (1977) 223 NLRB 73, was a decision by the board as fact finder in which the board found that the one Spanish language notice posted prior to the election was not enough notification where five workers were stationed some distance away from the building where the notice was posted. National Labor Relations Board decisions on different facts cannot bind the ALRB in its resolution of a factual question.

The only appellate court authority relied upon by petitioner is the decision by the Fifth Circuit in Marriott In-Flite Serv. Div. of Marriott Corp. v. N. L. R. B., supra, 417 F.2d 563. There, Spanish language ballots were deliberately not provided for the approximately 200 Spanish speaking workers in a work unit of some 640 employees. This was in spite of a National Labor Relations Board policy to provide foreign-language ballots and in spite of the fact that the 18 other regions that had considered the problem had unanimously endorsed use of foreign language ballots. The Marriott court ruled that as a matter of consistency it was improper for the Chicago region to refuse foreign language ballots. But it found an even more fundamental ground for its decision in the requirement “that minimum standards of fairness must be met for an election to be valid: …” (Id., at pp. 566-567.)

Marriott is distinguishable from the facts relied upon here in that it is apparent from the court's discussion that, although there were bilingual observers, no one undertook to explain to each employee how to mark the ballot in order to register each possible vote. The Marriott court rejected other purported “curative” actions, but did not address the factual situation presented here. Thus, it is not persuasive in analyzing the board decision under review.

The Racial Appeal Issue

On September 22, 1975, three weeks before the election, Eiichi Yoshida, the president of Sunnyside Nurseries, called a meeting of one of the five crews of employees. The meeting was attended by 18 to 22 employees, most of whom were of Mexican descent. Also present at the meeting were the president's brother, Sho Yoshida, Louis Carillo, a frequent interpreter for the employer, and Mr. Bennie Lopez, a consultant hired by the employer to address the crew of employees. The purposes of the meeting were to explain the new law to the employees and to inform them of the employer's position.

Mr. Lopez spoke first, in Spanish, explaining the farm labor law. Mr. Eiichi Yoshida followed, speaking through Louis Carillo and describing the company's present and future benefits. Mr. Feliciano Perez Merlin, a Sunnyside employee, asked for and was given permission to speak. The exact content of his speech is in dispute.

Carillo testified that Perez stated that if the union did not come in the Mexicans were going to be fired and replaced by Gringos, Filipinos, Koreans and others. Carillo said that Perez spoke in Spanish in an angry tone with gestures. According to Carillo, Perez also said that if the union came in all the employees would be hired through the union hiring hall.

Mr. Sho Yoshida, who heard Perez' speech through Carillo's interpretation, said that Perez said that if the Mexicans did not stick together and vote for the union, management would replace them with Anglos, Portuguese and Koreans. According to Yoshida, Perez also said that if the union won, all hiring would be through the hiring hall and only Mexicans would be hired.

Mr. Perez himself testified that he told his fellow workers they should unite with the union. He mentioned two Mexicans who had been discharged and noted there had been a sign up at the office for three months, saying in Spanish only, that there was no work, and that during that time the company had been hiring persons of other races. He did not remember saying anything about the hiring hall.

Mr. Perez testified that he had never been on the staff of the UFW and had never received any money from them except strike related expenses in 1970. He had never attended a union staff meeting for union organizers or received any instruction or training to be an organizer. He was an observer for the union during the election and attended the preelection conference as one of the union representatives. He described himself as an “organizer” for the union, but by that he meant that he would speak to fellow workers about the union, not that he was authorized to speak in the name of the union. He carried union cards which he passed out to employees when he explained the benefits of the union to them, and he tried to get other workers to sign union cards on his breaks and during lunch hours. Two to three times a week he went to the union office where he picked up more cards. Perez agreed that a lot of the employees looked to him as someone from whom they could get information about the union.

In challenging the validity of the election, petitioner argued to the hearing examiner and the board, and contends in this court that Mr. Perez was a union agent, that he made an inflammatory racial appeal, and that his actions affected the outcome of the election. The hearing examiner concluded that he was not a union agent and that even if he were an agent, his remarks did not justify overturning the election because they did not become a dominant issue in the campaign. The board adopted the hearing examiner's reasoning and rejected petitioner's attack upon the election.

Petitioner appears to accept the premise that conduct not attributable to the union will not form a basis for setting aside the election. This principle was expressed in Bush Hog, Inc. v. N. L. R. B. (5th Cir. 1969) 420 F.2d 1266, 1269, where the court stated: “We think it is clear that conduct not attributable to the opposing party cannot be relied upon to set aside an election. The only exception to this general principle, not applicable here, is where coercive and disruptive conduct or other action is so aggravated that a free expression of choice of representation is impossible. [Citations.] Any other rule would invite third parties or one of the protagonists who doubted the election outcome to anonymously create incidents and then attempt to use them to set aside the election.”

We find substantial evidence in the record before us to support the board's conclusion that Mr. Perez' relationship to the union did not justify attributing his remarks to the union. Under federal labor law attribution is based upon the existence of an agency relationship and the determination of the nature of the relationship “must be made … in light of the general law of agency, …” (N.L.R.B. v. Local No. 64, Falls Cities Dist. Coun. of Car., Etc. (6th Cir., 1974) 497 F.2d 1335, 1336.) “It is well settled that the right to control the agent is fundamental to the existence of the agency relationship. [Citations.]” (Id., at p. 1336.)

Petitioner relies heavily upon Mr. Perez' admission that he is an “organizer” for the union. However, the board was entitled to accept Mr. Perez' explanation that he used that term to describe his activities in soliciting membership and was entitled to conclude that he did so as an individual interested in unionization, not as an agent of the union. Similarly, the board was not obligated to view Mr. Perez' presence at the preelection conference or position as an election observer for the union as evidence that he was a union agent, since another reasonable inference is that he performed those functions as a reward for his active support of the union, not because of any expressly or even tacitly created agency relationship.

If petitioner were suggesting that the board could have reached the opposite conclusion based upon the evidence presented, we would agree. However, because we apply the substantial evidence test, we must uphold the board's determination as to agency relationship. Here, as in Bush Hog, Inc. v. N. L. R. B., supra, 420 F.2d 1266, any disruption or coercion from the “third party” was not so aggravated as to require the election be set aside.3 Thus, petitioner's refusal to bargain was without proper justification.

The “Make-Whole” Remedy

In the above discussion, we have approved the board's determination that the election was valid and that petitioner committed an unfair labor practice in refusing to bargain with the duly certified union. Thus, the only remaining question concerns the remedy for the unfair labor practice. The parties agree that the board automatically imposed the “make-whole” remedy in violation of the decision in J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306. However, petitioner argues that because it has litigated the election issue in good faith a “make-whole” remedy would be inappropriate.

We are not sure what course petitioner is suggesting we take. Since the “make-whole” remedy currently exists in the board's order, we must annul it. If petitioner is suggesting this court fashion an appropriate remedy or issue an advisory opinion whose effect will be to preclude the board from applying the “make-whole” remedy on remand, we reject that suggestion. Evidence concerning petitioner's motives in challenging the election is not presently before this court and the fashioning of a remedy involves a factual determination better made by the board.

The decision of the board is affirmed except as to the “make-whole” remedy, which is set aside. The matter is remanded to the board for a redetermination of remedy.

I dissent. The lead opinion is correct in holding that the election is not per se invalid because Korean language ballots were not provided. The statute (Lab.Code, § 1156.3, subd. (a)) is clearly permissive as to whether the board makes election ballots available in languages other than English and Spanish. Here, however, the board did exercise its discretion and ordered the Korean language ballots, and for good reason. Without them the Korean workers were not going to have the slightest notion of what was going on. Everyone wanted the Korean language ballots; the union, the employer, the board, and obviously the workers themselves. The subsequent failure to make the ballots available to the Korean workers had nothing to do with the merits of their use. Their unavailability resulted from a bureaucratic snafu. The board simply did not do its job. Assuming Mrs. Manders had a good faith belief that the board would lose jurisdiction if the election wasn't held in seven days, under the circumstances they should have just started the election process all over again. Instead, the board put together a slipshod affair that I must believe is an embarrassment to everyone involved. The mischief that resulted is eloquently related by the lead opinion's recitation of the facts. The election mess that followed so far as the Koreans were concerned was monumental. Sixteen Korean farm workers were disenfranchised. I cannot believe that any objective review of those facts would permit the conclusion that there was a fair election.

I would vacate the decision of the board and invalidate the election.

FOOTNOTES

1.  Labor Code section 1156.3 provides that an election “shall” be held within seven days of the petition. In Radovich v. Agricultural Labor Relations Bd. (1977) 72 Cal.App.3d 36, 47, 140 Cal.Rptr. 24, the court ruled that the time requirement was directory only, not jurisdictional. However, the board agent did not have the benefit of that decision when she was interpreting the newly enacted legislation.

2.  Labor Code section 1160.8 provides that an aggrieved party may petition this court for review of an order in an unfair labor practice proceeding. However, appellate court review of a decision certifying a union can be obtained only by the employer committing the “technical” unfair labor practice of refusing to bargain with the certified union. (See J. R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d 1, 10, 160 Cal.Rptr. 710, 603 P.2d 1306; Nishikawa Farms Inc. v. Mahony (1977) 66 Cal.App.3d 781, 786-787, 136 Cal.Rptr. 233.)

3.  Having reached this conclusion about agency, we need not determine the effect of Perez' comments upon the election. However, we note that in our recent decision in Merrill Farms v. Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 176, 169 Cal.Rptr. 774, the majority of this court held, in relation to coercive comments by an agent of the employer, that as a matter of law one isolated incident of improper prediction about the effect of unionization could not support a finding of an unfair labor practice. In that case we overturned a board decision. If, as a matter of law, one incident of the kind involved in Merrill Farms could not support a board finding of an unfair labor practice, we have difficulty seeing how a roughly comparable incident could require the board to set aside an election.

WHITE, Presiding Judge.

FEINBERG, J., concurs. SCOTT, J., dissents.Hearing denied; BIRD, C.J., did not participate.