KARAHADIAN RANCHES, INC., Petitioner, v. The AGRICULTURAL LABOR RELATIONS BOARD of the State of California, Respondent, UNITED FARM WORKERS OF AMERICA, AFL–CIO, Real Party in Interest.
Marco E. Lopez, Carlos M. Alcala, Francis E. Fernandez, Carmen S. Flores, Jerome Cohen, William H. Carder, Ellen Greenstone, Tom Dalzell, Sanford N. Nathan, Dianna Lyons and Wendy Sones for Real Party in Interest.
Karahadian Ranches, Inc. (Karahadian or petitioner) seeks statutory review (Lab.Code, § 1160.8) of a decision of the Agricultural Labor Relations Board (ALRB or Board) determining that petitioner committed a number of unfair labor practices and of Board's remedial order based thereon. (All statutory references will be to the Labor Code unless otherwise specified.)
Karahadian is an agricultural employer (§ 1140.4, subd. (c)), subject to the Agricultural Labor Relations Act (§ 1140, et seq. [hereafter ALRA] ). It is a family concern, incorporated in California, engaged in the growing of grapes on some 570 acres in Riverside County. Milton Karahadian is a part owner and the principal officer. Between March 3 and June 8, 1977, the period in which the alleged violations occurred, the number of Karahadian's agricultural employees varied from a low of about 200 to a high of 375.
On charges filed by United Farm Workers of America, AFL–CIO (UFW), a labor organization within the meaning of subdivision (f) of section 1140.4, ALRB's General Counsel filed a complaint accusing petitioner of 12 acts allegedly constituting unfair labor practices. Karahadian filed an answer in essence denying the charges. The case was heard by an Administrative Law Officer (ALO) between June 15 and July 15, 1977, in Coachella. The ALO concluded that 10 of the 12 charged unfair labor practices had been committed.1 Karahadian filed exceptions with respect to eight of the ten violations found by the ALO and also took exception to the ALO's proposed order as being overly broad and unwarranted in several particulars.2 The Board thereafter rendered its decision affirming the ALO's determinations as to six of the eight violations found by the ALO and contested by Karahadian.3 Board's remedial order was in substance the same as that proposed by the ALO.
The events giving rise to the alleged unfair labor practices at issue occurred during the late winter and spring of 1977. Karahadian was then under union contract with the International Brotherhood of Teamsters (IBT), but that contract was due to expire April 16, 1977, and UFW was attempting to resume the role of employee representative it had enjoyed under an earlier contract from 1970 to 1973, prior to enactment of the ALRA. To that end, in the late winter and spring of 1977 UFW had filed notices of intent to take access and notices of intent to organize. Similar notices were filed by several other agricultural labor organizations. UFW conducted an intense campaign. Karahadian undertook a “no union” campaign and through the Farm Bureau hired an outside agent to assist in its campaign. The agent conducted two seminars for petitioner's supervisors and foremen,4 instructing them how to conduct themselves properly under the strictures of the ALRA. Thereafter there were several meetings between the supervisors and Milton Karahadian to discuss the prohibition of discrimination against employees because of union activity, the access rule, rules for employee discipline and the “do's and don't's” of the law. Petitioner's “no union” campaign consisted primarily of handing out pro-management leaflets to its employees on four or five occasions through its supervisors and foremen.
These events culminated in a representation election on June 24, 1977.
Of the six unfair labor practices found by Board to have been committed, on review petitioner contests only three.5
I. UNLAWFUL INTERROGATION OF EMPLOYEE HAMIID ALI
Petitioner contends the Board's determination it committed an unfair labor practice by unlawfully interrogating Hamiid Ali on April 27, 1977, is not supported by substantial evidence on the whole record (see § 1160.8; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 727–728, 175 Cal.Rptr. 626, 631 P.2d 60; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346, 156 Cal.Rptr. 1, 595 P.2d 579; George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 111 Cal.App.3d 258, 264–268, 168 Cal.Rptr. 537; Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 930–931, 156 Cal.Rptr. 152). We agree.
On April 27, 1977, employee Hamiid Ali was working on the ranch thinning grapevines. Working in a nearby area were his friend and fellow employee, Ali Nage, and two Mexican nationals. Ali Nage had a good deal of difficulty understanding English, but could make out a few words.6 The two Mexican nationals did not speak English.
Hamiid Ali testified that Milton Karahadian approached him as he was working; that they exchanged greetings; and that then Milton Karahadian asked him: “You with Chavez?” Hamiid replied in the affirmative. Then Milton Karahadian asked: “What happened with your friend, he got shot the other night?” Hamiid denied this. Milton Karahadian then said, “Chavez, your friend, he shoot him.”
Milton Karahadian admitted in his testimony that he asked Mr. Ali how Chavez was doing. He explained that he had been informed from the beginning that Ali was an organizer for the UFW and that his question about Chavez “was a passing thing. I tried to pick points of interest with people and discuss them. And I was merely being—it was a casual type of conversation and I asked him the question ․” Based on this incident petitioner was charged with two unfair labor practices, an implied threat and unlawful interrogation. The ALO rejected General Counsel's theory that what was said constituted an implied threat but concluded that it did amount to “an interrogation concerning union activity.”
But interrogation without more is insufficient to prove an unfair labor practice. An unfair labor practice is defined as conduct that interferes with, restrains or coerces employees in the free exercise of their rights (§ 1153, subd. (a); see Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551, 559, 147 Cal.Rptr. 165, 580 P.2d 665), and it was General Counsel's burden to prove that the interrogation constituted an unfair labor practice within the meaning of the act.
Federal decisions under section 8(a)(1) of the National Labor Relations Act (NLRA) (29 U.S.C. § 158(a)(1)), after which subdivision (a) of section 1153 of ALRA was modeled, establish that interrogation not itself threatening does not constitute an unfair labor practice unless it is coercive in light of all the surrounding circumstances. (N.L.R.B. v. Monroe Tube Co., Inc. (2d Cir.1976) 545 F.2d 1320, 1328; Sahara-Tahoe Corp. v. N.L.R.B. (9th Cir.1976) 533 F.2d 1125, 1126; Stanislaus Imports, Inc. (1976) 226 NLRB 1190, 1192.) One important factor to be considered is whether there is any evidence the interrogation intimidated any employee. (N.L.R.B. v. Monroe Tube Co., Inc., supra; Sahara-Tahoe Corp. v. N.L.R.B., supra.)
Here there is no evidence that any employee was intimidated, coerced or inhibited in any way in the exercise of employee rights by the conversation between Karahadian and Hamiid Ali. The two Mexican workers were apparently out of hearing range and could not understand English. Although Ali Nage understood a few words of English, he testified that he had to approach the pair in order to hear the conversation that was taking place. It is evident from his testimony that he did not hear the initial exchange in which Karahadian asked how Chavez was doing, and there was nothing in Nage's testimony indicating he in any way felt intimidated, coerced or restrained in the exercise of his rights by what he heard of the conversation. Hamiid Ali himself was clearly not intimidated, coerced or restrained. In the first place, he so testified. Secondly, it is rather apparent that Milton Karahadian already had information that Hamiid Ali was a UFW supporter, that Ali knew or suspected that Karahadian had been so informed, and that Mr. Ali was not in the least deterred from his union activity.
It is true, of course, that General Counsel was not required to show actual intimidation, interference or restraint but only that Karahadian engaged in conduct that would reasonably tend to interfere with the free exercise of employee rights. (Pandol & Sons v. Agricultural Labor Relations Bd. (1979) 98 Cal.App.3d 580, 586, 159 Cal.Rptr. 584; Joy Silk Mills v. National Labor Relations Board (D.C.Cir.1950) 185 F.2d 732, 743–744, citing N.L.R.B. v. Link-Belt Co. (1941) 311 U.S. 584, 599, 61 S.Ct. 358, 366, 85 L.Ed. 368, 379.) However, the complete absence of evidence that any employee felt intimidated or coerced coupled with the ALO's determination that no implied threat was involved established that the exchange was not reasonably likely to interfere with, coerce or restrain employees in the exercise of their rights. (See N.L.R.B. v. Monroe Tube Co., Inc., supra, 545 F.2d at p. 1328; Sahara-Tahoe Corp. v. N.L.R.B., supra, 533 F.2d at p. 1126; Stanislaus Imports, Inc., supra, 226 NLRB at p. 1192; cf. N.L.R.B. v. Marland One-Way Clutch Co., Inc. (7th Cir.1975) 520 F.2d 856, 865–866.)
In support of their position with respect to this incident, UFW and Board cite the “surrounding unfair labor practices” which “put this question into its proper context.” However, they cite not only the violations found by the Board but also those charges rejected by the Board as without evidentiary support (see fn. 3, ante ) and those rejected by the ALO (see fn. 1, ante ). We perceive nothing in the unfair labor practices found by the Board that would support a rational conclusion that the innocuous question asked Mr. Ali tended to coerce or restrain or interfere with the free exercise by employees of their rights.
II. UNLAWFUL INTERROGATION AND CREATION OF IMPRESSION OF SURVEILLANCE OF EMPLOYEE HAMIID ALI
Petitioner also contends there is not substantial evidence to support the Board's determination that petitioner committed an unfair labor practice by unlawfully interrogating Hamiid Ali and creating an impression of surveillance on the evening of April 26, 1977. We do not agree.
Board determined the incident occurred as follows. Between 10 and 10:30 on the evening of April 26, 1977, Hamiid Ali and UFW Attorney William Monning drove into petitioner's labor camp in Monning's car after spending several of the preceding hours at a bar in town. Monning parked his car, which had a UFW bumper sticker affixed to its rear bumper, in front of the camp kitchen. They then entered the camp kitchen to prepare some food to eat. About four or five minutes later, Tony Luna entered the kitchen and asked Hamiid what was going on, to which Hamiid responded that he was preparing some food. After looking at Monning, who was wearing a red and black UFW button on his lapel, Tony Luna turned to Hamiid and asked, “Who is this with you, this from Chavez?” Hamiid responded, “No, this friend of mine.” Luna then left the kitchen. Hamiid and Monning continued to prepare a meal which they consumed in 15 to 20 minutes. When they were about to leave the kitchen Ali and Monning found that Tony Luna had been listening to their conversation by pressing his ear up to the outside of the kitchen door. When they confronted Luna upon catching him in the act, Luna asked Monning again if he was with UFW. Monning replied only by telling Luna his name and then said goodnight to Hamiid, thanked him for the sandwich and left. After that, Luna asked Ali if he was at Chavez' office, to which he responded, “That's my business.” Based on this incident the Board concluded that there was both an unlawful surveillance or impression of surveillance and an unlawful interrogation.
The Board's determination petitioner committed an unfair labor practice by creating an impression of surveillance is well supported by the evidence. Petitioner would have us consider only the testimony given by Tony Luna and disregard the testimony of Hamiid Ali and William Monning credited by the ALO. That we may not do without a showing the testimony sought to be disregarded was inherently unreliable or incredible. Petitioner asserts the story told by Ali and Monning was a fabrication but it has failed to make the requisite showing.
Petitioner may be correct that the ALO, and the Board by adoption, erroneously equated the mere act of surveillance with an unfair labor practice. In his decision the ALO stated: “Employer surveillance of union activity is a violation of Section 8(a)(1), and therefore also, of Section 1153(a), even if the incident is isolated.” As stated by the court in N.L.R.B. v. Southwire Co. (5th Cir.1970) 429 F.2d 1050, 1054: “[N]ot all surveillance is prohibited by the Act ․ the only surveillance prohibited is that which interferes with, restrains or coerces union activities.” (See also Belridge Farms v. Agricultural Labor Relations Bd., supra, 21 Cal.3d at p. 559, 147 Cal.Rptr. 165, 580 P.2d 665.)
However, again, actual interference with employee rights need not be shown, only that the conduct was such as would reasonably tend to restrain or interfere with the free exercise of employee rights. (Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal.App.3d at p. 586, 159 Cal.Rptr. 584.) Clandestine eavesdropping by a supervisor on a private conversation between a union attorney and an employee would reasonably, indeed almost inevitably, tend to have that effect.
Whether the finding of unlawful interrogation is supported by the evidence is a closer question, but again, we conclude it is. The questions about Monning's union connections might well be disregarded as rhetorical. His car bore a UFW bumper sticker and he was wearing a UFW lapel button. But the entirety of the questioning and particularly the question to Hamiid whether he had been at Chavez' office amply support the conclusion there was an interrogation. The question is whether it was such as to reasonably interfere with the free exercise of employee rights.
Judging by his answer to the question, one would have to conclude that Ali himself was not intimidated, but while that is an important factor, it is as discussed in part I, ante, not dispositive. The questioning implied that the supervisor was displeased by Ali's union related activities, and except in the case of a strong willed, knowledgeable employee, we are persuaded such questioning would reasonably tend to have an inhibiting effect on an employee's free exercise of his or her organizational rights.
III. THE UNLAWFUL DISCHARGE OF EMPLOYEE MARIA FERREL
Finally, petitioner contends Board's determination it committed an unfair labor practice in dismissing employee Maria Elena Ferrel is contrary to law and lacks the support of substantial evidence on the whole record. We agree.
Review of this portion of the case requires a rather extensive recitation of the evidence, the findings and rationale of the ALO and of the Board. In addition, it is necessary to refer to the episode found by the ALO to constitute, but found by the Board not to constitute, a discriminatory transfer of Maria Ferrel.
Maria Elena Ferrel, an experienced farmworker, came to work for Karahadian on March 14, 1977. Originally she did other work, but from May 25 until her discharge on June 8 she was employed as a packer. She testified she regularly passed out UFW leaflets and buttons every day and tried to obtain signatures on authorization cards. There were no other packers who handed out literature for the union.
On June 1, at about 5:40 a.m. she passed out leaflets for the first time in the packing trailer. Working time had started at 5:30 but the pickers had not yet delivered any grapes for packing. Felicitas Espinosa, Ms. Ferrel's supervisor, warned Ms. Ferrel that if she passed out flyers again on company time, she would be fired.7 Ms. Ferrel testified she recalled responding to Ms. Espinosa that “there were no grapes and nothing to pack yet” but that Ms. Espinosa had responded: “ ‘Don't worry, you should be there standing ready.’ ” Ms. Ferrel further testified she was unaware that she was being paid by the company for the period prior to arrival of the grapes and that while she had been warned not to hand out leaflets, she had not been warned against handing out buttons.
On June 1, the same day, Beatrice Vela, Second Foreperson in charge of packing, approached Ms. Ferrel and told her to “ ‘go and pick’ ” because there were not enough grapes. Ms. Ferrel felt this was discriminatory; she preferred packing to picking, citing the following reasons: picking requires more work in the sun; you are required to carry a heavier box further; you must put more into your box; it takes longer to fill a box; in general it is harder work; and the pay is better for packers. She testified she had said to Ms. Vela that there were “ ‘others here with less seniority, why are you taking me down?’ ”
Ms. Vela stated that Foreperson Espinosa had made the decision to switch packers to picking and that no one except Ferrel had complained or asked for an explanation. Ms. Ferrel was told the transfer was just for that day, but later she said: “ ‘You took the people with more seniority off the trailer.’ ” Vela said she did know about seniority. She testified she had asked other workers to change to picking before asking Ms. Ferrel, noting she was some distance away from Ferrel at the time the decision to switch packers to picking was made. Ms. Vela had been present earlier when Ms. Espinosa had warned Ferrel about passing out leaflets.
On June 5, Ms. Ferrel was interviewed on a local radio station. She identified herself and her employer, her crew and crew-boss, and spoke about the advantages of a union contract. The program was broadcast twice. Ms. Ferrel regularly prepared a list of workers in the crew to make certain no one was being fired, and checked it each day before work, during the break and after work as well. She wore a union button to work on June 1 and every day thereafter until her discharge.
On June 8, 1977, Ms. Ferrel assembled with other workers prior to the commencement of the working day. She handed out about 40 UFW buttons and some union leaflets. At 5:30 a.m., the packers' pay commenced. Foreperson Espinosa sounded a car horn to signal the start of the work day and then gave instructions to the assembled employees as to their respective duties for the day. Since the grape pickers had just gone out into the fields, there were not yet any grapes to be packed. On an average it takes 15 to 20 minutes after work has commenced for the first trailer of grapes to arrive at the packing station from the pickers in the field. At about 5:45, while waiting at her station for a trailer of grapes to be brought in, Ms. Ferrel noticed that a late arriving worker was walking toward the packing station. Ms. Ferrel left her work station and approached the arriving worker and, upon reaching her, pinned a UFW button on her and briefly said something to her. At the same time, supervisor Espinosa had been walking toward the worker in order to give her her work instructions. Ms. Espinosa reached the worker just after Ms. Ferrel reached her, and upon instructing the worker on the day's assignment turned to Ms. Ferrel and said, “You're fired.”
Ms. Espinosa testified that petitioner had given its supervisors the authority to hire and fire but had instructed them not to fire anyone for union solicitation on work time unless the employee had once been warned and the supervisor had witnessed the second offense. Ms. Espinosa further stated she had been “crew boss” since March 15, 1977, and before that had worked as a packer and a picker. Her testimony agreed with that of Ms. Ferrel in respect to the warning issued on June 1. Her testimony likewise agreed with that of Ms. Ferrel as to the events of July 8, leading to Ferrel's discharge, with one exception. Espinosa testified that on several occasions Ferrel had “mocked” her, by mimicking her orders, laughing, etc. She testified this behavior “ ‘got on her nerves,’ ” that it was embarrassing and that she had cried about it. She testified she had not warned Ms. Ferrel about this type of conduct or spoken with her about it. She testified that this conduct of Ms. Ferrel was “ ‘in my mind’ ” when she decided to terminate her. She felt people were “ ‘losing respect’ ” for her as a crew boss. She thought Ms. Ferrel “ ‘was trying to prove a point to the people that we were afraid of her.’ ” She also testified that she had warned another UFW organizer, Santiago Orozco, not to hand out union leaflets on company time, and that he had violated the rule a second time but had not been fired because the second violation was not witnessed by her but only by Beatrice Vela.
Ms. Ferrel was recalled as a rebuttal witness and testified that she had never contradicted Espinosa's orders or “ ‘mocked’ ” her.
In respect to the handing out of leaflets on June 1 and thereafter Ms. Ferrel acknowledged that she had been expressly told that if she passed out leaflets on company time she would be fired. However, when she was asked whether she was careful only to hand out leaflets before work and on breaks, she replied: “When I passed out the flyers, I wasn't careful of anyone.”
In the portion of the tentative decision entitled “FINDINGS OF FACT” the ALO determined that the one-day transfer of Ms. Ferrel from packing to picking constituted a discriminatory transfer on account of her union activities. With respect to Ms. Ferrel's discharge, the ALO found in relevant part: “With respect to the discharge of Maria Elena Ferrel, it is agreed that she was fired while engaged in organizing activities on behalf of the union, that she violated a company rule against distribution of union literature or buttons on company time, and that she had been warned previously not to pass out literature on company time. The issue, therefore, is one of cause vs. pretext.
“Her earlier discriminatory transfer, however, together with the testimony of Ms. Expinoza [sic] concerning Ms. Ferrel's alleged ‘mocking’, which was ‘in my mind’ when Expinoza [sic] terminated Ms. Ferrel, and Expinoza's [sic] comments to the effect that Ms. Ferrel's behavior had diminished her authority and created ‘complaints about everything’, in diminution of her control of the crew are sufficient to raise an inference of discriminatory intent. Moreover, there was no testimony to the effect that work was disrupted by the passing out of a single button, and another worker, who had been similarly warned, was not fired on the second occasion. While this was allegedly a result of the fact that Ms. Espinosa had not been present during the infraction, this reasoning was not explained or obvious to Respondents' employees. A natural consequence would therefore be for Respondents' employees to view its behavior as discriminatory and punitive. In my observation of the demeanor of Ms. Espinosa, it was clear that the decision to terminate Ms. Ferrel was a highly emotional one, and that she considered the union's organizational drive to be a personal threat to her reputation, position and power. She also testified favorably concerning the company's ‘no-union policy’ and the offer of health insurance.
“In sum, I conclude that the discharge of Maria Elena Ferrel was pretextual and, in part, based on her activities as a union organizer. While cause existed for her termination, it was outweighed in the mind of her supervisor by anti-union animus. Her highly subjective and emotional attitudes toward union organizers, and the exercise by employees of their rights to ‘complain about everything’ in a context of great personal hostility, led directly to the discharge.” (Emphasis added.)
After considering the exceptions of the various parties to the decision of the ALO, the Board decided “to affirm the rulings, findings, and conclusions of the ALO only to the extent that they are consistent with this opinion ․” 8 The Board's decision then states in relevant part:
“Transfer. We reject the ALO's finding that Respondent reassigned employee Maria Elena Ferrel from the packing to the picking of grapes for one day as reprisal for her having distributed union literature.
“We have previously recognized an employer's right to assign duties or work schedules for business reasons absent contractual provisions to the contrary or proof that the assignment was effectuated to inhibit employee organization. See, e.g., Rod McLellan Company, 3 ALRB No. 71 (1977). Although Ferrel had handed her supervisor a union leaflet shortly before the transfer, we are not persuaded that there was a causal connection between Ferrel's conduct and her subsequent selection for temporary picking duty.
“Ferrel had worked in a 30-person grape harvesting/packing crew. Twelve members of the crew are normally required to staff a packing trailer which follows the remaining members of the crew as they harvest the crop. Ferrel, along with three other packers, was reassigned to picking during a slowdown in the harvest operations on June 3, 1977. She was the first of the reassigned group to resume packing the next morning.
“The ALO relied heavily on his finding that Ferrel's transfer was in violation of the company's seniority policy. Ferrel had worked exclusively as a packer since joining the crew on May 25 1 but had never been assured that she would work only as a packer. She was asked at the time of hire only whether she knew how to pack. It was her opinion that someone with less seniority should have been selected for the picking assignment. However, Respondent's contention that seniority is not applicable to intracrew transfers is consistent with evidence indicating that at least some of the employees reassigned to picking along with Ferrel had a longer employment history with Respondent than did she.
“For the reasons set forth above, we hereby dismiss that portion of the complaint which alleges that Ferrel was discriminatorily transferred.
“Discharge. We affirm the ALO's conclusion that Respondent violated Section 1153(c) and (a) of the Act by its discharge of Ferrel one week after the transfer discussed above. Ferrel was discharged immediately after she handed a union button to another employee at a time when neither employee had actually started to work. There is no evidence that any work was disrupted, although the starting whistle had sounded a few minutes earlier. Respondent contends that Ferrel was properly discharged for her second violation of the company's ‘no-distribution’ rule. Ferrel allegedly violated the rule when she offered her supervisor the union leaflet on June 3. She was advised of the rule at that time and warned that another such infraction would be cause for dismissal.
“We do not decide whether the rule was invalid on its face, as the record before us contains only scant evidence concerning the nature and scope of this rule. Even assuming that the rule was valid, however, Ferrel's discharge nonetheless violated Section 1153(c) and (a). A no-distribution rule, even if valid on its face, may not be applied to prohibit conduct which does not interfere with work, even when the employees are paid for such nonworking time. This includes brief solicitations which occur while employees are waiting to begin work.”
“1 Ferrel was initially hired by Respondent on March 14, 1977, to work in the pruning and thinning of grape vines.”
It is difficult to know whether we are to discuss the Board's decision or the ALO's decision or both decisions because we are unable to say which of the ALO's findings and conclusions are consistent with the Board's decision. (See fn. 8, ante.) Suffice it to say that both decisions are contrary to the controlling applicable law and unsupported by substantial evidence on the entire record.
Where the evidence indicates an employer may have been motivated by both an anti-union bias and legitimate business interests in discharging an employee, the so-called “dual motive” situation,9 a number of different rules have in the past been applied in determining whether the discharge constituted an unfair labor practice. (See Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 729, 175 Cal.Rptr. 626, 631 P.2d 60; see also N.L.R.B. v. Transportation Management Corp. (1983) ––– U.S. ––––, –––– – ––––, 103 S.Ct. 2469, 2472–2475, 76 L.Ed.2d 667, 673–676.) It is now established, however, that the “but for” test applies: “When it appears that an employee was dismissed because of combined valid business reasons as well as for invalid reasons, such as union or other protected activities, the question becomes whether the discharge would not have occurred ‘but for’ the protected activity. (Royal Packing Co. v. Agricultural Labor Relations Bd., supra , 101 Cal.App.3d 826, 834–835, 161 Cal.Rptr. 870; Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d 922, 935, 156 Cal.Rptr. 152 et seq.)” (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 729, 175 Cal.Rptr. 626, 631 P.2d 60; accord: N.L.R.B. v. Transportation Management Corp., supra, 462 U.S. at p. ––––, 103 S.Ct. 2469 at p. 2472–2475, 76 L.Ed.2d at p. 673–676; George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., supra, 111 Cal.App.3d 258, 273, 168 Cal.Rptr. 537; Wright Line, A Div. of Wright Line (1st Cir.1980) 662 F.2d 899, 902–904.)
In the absence of discrimination on account of union activities, the Board is without authority to control an employer's business decisions. (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 728, 175 Cal.Rptr. 626, 631 P.2d 60; Royal Packing Co. v. Agricultural Labor Relations Bd., supra, 101 Cal.App.3d at p. 833, 161 Cal.Rptr. 870; N.L.R.B. v. Audio Industries, Inc. (7th Cir.1963) 313 F.2d 858, 861.) The mere fact that employee is or was participating in union activities does not insulate him from discharge for misconduct or give him immunity from routine employment decisions. (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at pp. 728–729, 175 Cal.Rptr. 626, 631 P.2d 60; Royal Packing Co. v. Agricultural Labor Relations Bd., supra.)
The overall burden of proving the discharge was motivated by anti-union animus rested upon the UFW and general counsel. (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d at p. 936, 156 Cal.Rptr. 152; Stone & Webster Engineering Corp. v. N.L.R.B. (1st Cir.1976) 536 F.2d 461, 464; see also N.L.R.B. v. Transportation Management Corp., supra, ––– U.S. at p. ––––, 103 S.Ct. 2649 at p. 2473, 76 L.Ed.2d at p. 674; Wright Line, A Div. of Wright Line, supra, 662 F.2d at pp. 901–902.) Of course, once it has been shown that the employee's union activities were a motivating factor in the employer's decision to discharge him or her, the burden shifts to the employer to show that discharge would have occurred in any event (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 730, 175 Cal.Rptr. 626, 631 P.2d 60; accord: N.L.R.B. v. Transportation Management Corp., supra, 462 U.S. at p. ––––, 103 S.Ct. 2469 at p. 2473, 76 L.Ed.2d at p. 674.) However, excluding that part of his findings disapproved by the Board, the ALO's findings are insufficient to support a conclusion that Ms. Ferrel was discharged on account of her union activity as distinguished from her violation of the “no solicitation” rule.
Although the ALO clearly found Ms. Ferrel had violated the “no solicitation” rule of the employer and that legal cause existed for her termination, and while the Board did not expressly disapprove these conclusions of the ALO nor the factual findings supporting them, nevertheless the Board appears to have decided that no legal cause existed for Ms. Ferrel's termination because her solicitation on behalf of the union during work time, though in violation of a rule the employer was permitted to make, did not actually interfere with the work.
There are of course decisions that refer to the absence of actual work interference as bearing on the ascertainment of the employer's reason for discharging an employee, but none of the cases cited by either the Board or the ALO establish the rule relied on by the Board, that an employee may not legitimately be discharged for violation after clear warning of an employer's rule against solicitation during work time unless the violation actually resulted in work interference. There is no such rule under the National Labor Relations Act nor is there any justification for or propriety in such a rule under the ALRA. The knowing violation of a valid work rule after warning constitutes insubordination which is itself a sufficient ground for discharge. (See Patio Foods v. N.L.R.B. (5th Cir.1969) 415 F.2d 1001, 1004; N.L.R.B. v. Soft Water Laundry, Inc. (5th Cir.1965) 346 F.2d 930, 934.)
As stated by the court in National Labor Relations Board v. McGahey (5th Cir.1956) 233 F.2d 406, 412–413: “The Board's error is the frequent one in which the existence of the reasons stated by the employer as the basis for the discharge is evaluated in terms of its reasonableness. If the discharge was excessively harsh, if lesser forms of discipline would have been adequate, if the discharged employee was more, or just as, capable as the one left to do the job, or the like then, the argument runs, the employer must not actually have been motivated by managerial considerations, and (here a full 180 degree swing is made) the stated reason thus dissipated as pretense, nought remains but antiunion purpose as the explanation. But as we have so often said: management is for management. Neither Board nor Court can second-guess it or give it gentle guidance by over-the-shoulder supervision. Management can discharge for good cause, or bad cause, or no cause at all. It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification: it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids.” (233 F.2d at pp. 412–413; emphasis added.)
Moreover, both employer and employee are entitled to a rule that can be administered without litigation in virtually every case of a discharge for violation of a no-solicitation rule. Where a repeat violation after clear warning has been demonstrated, the requirement of an additional showing that the violation resulted in “actual interference” with work would simply be an open invitation to litigation.
The law existing in June 1977, the time of these events, was reasonably clear. In Republic Aviation Corp. v. N.L.R.B. (1945) 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372, the Supreme Court expressly approved the rule announced by the NLRB in Peyton Packing Co. (1943) 49 NLRB 828, 843: “The Act, of course, does not prevent an employer from making and enforcing reasonable rules governing the conduct of employees on company time. Working time is for work. It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose.” A clear distinction has been drawn between prohibition of solicitation during “working hours” and “working time.” (See Essex International, Inc. (1974) 211 NLRB 749, 750.)
In T.R.W. Bearings Division (1981) 257 NLRB No. 442, 443 the NLRB rejected “the principle espoused in Essex International, that prohibitions against solicitation and distribution during ‘working time’ or ‘work time’ are presumptively valid,” seeing “no inherent meaningful distinction between the terms ‘working hours' and ‘working time’ ” and asserting: “Both terms are, without more, ambiguous, and the risk of such ambiguity must be borne by the promulgator of the rule.”
The legality of a discharge must necessarily be judged by the law in effect at the time of the discharge, so the 1981 T.R.W. decision cannot be applied to determine the legality of Ms. Ferrel's discharge in 1977. But in any event the rationale of the T.R.W. decision has no application to the facts of this case.
Here, Ms. Ferrel did not claim to be mistaken about the times at which she was prohibited from soliciting or distributing nor would the evidence support such a claim. She had been warned only a week earlier that she was not to distribute union material during precisely the period of time in which she distributed the union button resulting in her discharge on June 8, namely, the time after the horn had sounded and before the grapes began arriving to be packed. She expressly testified to being warned that if she passed out leaflets during that time again she would be fired. She defied her supervisor, and as the ALO correctly found, she knowingly violated the “no solicitation” rule.10 Thus, any possible ambiguity in the language of the no solicitation rule is immaterial to this case.
We conclude the determination that petitioner committed an unfair labor practice in discharging Ms. Ferrel is contrary to the applicable law and unsupported by substantial evidence on the entire record.
IV. THE ORDER
In view of our conclusion that several of the determinations that petitioner committed unfair labor practices must be annulled, it is appropriate to remand the matter to the Board for redetermination and reformulation of its remedial order, if any. (See, e.g., J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 38–40, 160 Cal.Rptr. 710, 603 P.2d 1306; Pandol & Sons v. Agricultural Labor Relations Bd., supra, 98 Cal.App.3d at pp. 589–591, 159 Cal.Rptr. 584; Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d at p. 941, 156 Cal.Rptr. 152.) In view of the remand it is unnecessary to discuss at length petitioner's contentions the order is defective. To minimize the possibility of further review proceedings, however, we do observe that as petitioner contends, several portions of the cease and desist order were overbroad because they purported to enjoin future unlawful activity unrelated to that which petitioner was found to have committed in this case. (See George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., supra, 111 Cal.App.3d at p. 277, 168 Cal.Rptr. 537, and cases there cited.)
Whether or not they are remedial or punitive in the circumstances of this case we do purport to decide, but we do not agree with petitioner's contention the public reading and/or mailing of notices may be required by the Board only in exceptional circumstances.
That portion of the Board's decision determining that petitioner committed unfair labor practices in unlawfully interrogating and creating an impression of surveillance of Hamiid Ali on the night of April 26–27, 1977, is affirmed. In all other respects the decision and order of the Board are annulled and the case is remanded to the Board for reconsideration and formulation of a new remedial order, if such is deemed appropriate by the Board, consistent with this opinion.
1. The two charges of which petitioner was exonerated by the ALO were: (1) on April 27, 1977, Milton Karahadian threatened to discharge employee Hamiid Ali if he engaged in union activity; and (2) on April 27, 1977, petitioner through its supervisors discriminatorily refused to hire two union workers.
2. The two unfair labor practices found by the ALO and not excepted to by petitioner were: (1) on April 24, 1977, supervisor Augustinez unlawfully threatened Hamiid Ali by informing him that he had been seen in the Chavez office in Coachella and that if he signed a card for the union, he and his friends would be fired; and (2) on April 28, 1977, supervisor Augustinez unlawfully threatened to fire Hamiid Ali by telling him in the presence of other employees that he and any workers associated with him would be fired for engaging in union activity.
3. The two charges the Board found unsubstantiated were: (1) on March 23, 1977, petitioner through its agent promised benefits to its employees, including medical insurance, in the course of a speech against unionization; and (2) on June 3, 1977, petitioner through its supervisor discriminatorily transferred Maria Elena Ferrel because of her union activities.
4. Petitioner's employees Juan “Johnny” Augustinez, Tona Luna and Felicitas Espinosa were found by the Board to be supervisors within the definition found in subdivision (j) of section 1140.4, rendering petitioner responsible for their acts.Subdivision (j) of section 1140.4 reads: “(j) The term ‘supervisor’ means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”
5. The three unfair labor practices found by the Board and not attacked by petitioner on review are: (1) that on March 3, 1977, Karahadian's supervisor Johnny Augustinez unlawfully interrogated two prospective employees, Hamiid Ali and Ali Nage, by inquiring into their union status; (2) that on April 24, 1977, supervisor Augustinez unlawfully threatened Hamiid Ali by informing him that he had been seen in the Chavez office in Coachella and that if he signed a card for the union, he and his friends would be fired; and (3) that on April 28, 1977, supervisor Augustinez unlawfully threatened to fire Hamiid Ali by telling him in the presence of other employees that he and any workers associated with him would be fired for engaging in union activity.
6. During Nage's testimony at the hearing he required an Arabic translator.
7. The supervisor's handwritten notes of the event introduced into evidence as respondent's exhibit 1–B reads: “Maria E. Ferrel at 5:45 giving out papers for UFW[.] I told her she couldn't organize during working hrs. or I'd have to fire her. She said [‘]If you can. [’]” (Emphasis added.)
8. Although petitioner in this case has made no point of it, we observe that Board's practice of adopting or affirming the rulings, findings and conclusions of the ALO “as modified herein” or “to the extent consistent with this opinion” is quite unsatisfactory in many cases so far as a reviewing court is concerned. In the recommended decisions of the ALO that have come before us, specific findings of fact other than the jurisdictional facts have rarely been made. Rather, factual determinations have been scattered throughout the decision as part of the reasoning or conclusions. The decisions of the Board that have come before us are in much the same form. When the Board states that it adopts the findings of the ALO “consistent with” its decision or “as modified” in its decision, the task of determining which findings of the ALO were deemed by the Board “consistent with” or “modified by” its decision are relegated to the reviewing court. That is undesirable both from the standpoint of the Board and the reviewing court. Moreover, it brings into question the sufficiency of the findings as required by section 1160.3.The case at bench is a perfect illustration of the problem. In reaching his determination that Ms. Ferrel's discharge purportedly because of her soliciting on behalf of the union during work time was “pretextual,” the ALO relied heavily on his earlier determination that the one-day transfer from packing to picking was discriminatory in nature, and in his discussion of the law the ALO mentioned at least half a dozen legal theories he deemed supportive of his conclusions. The Board, however, expressly and in evidentiary detail rejected the finding of discriminatory transfer but without discussing the effect of that determination upon the other findings and conclusions of the ALO, the Board purported to approve the ALO's determination that Ms. Ferrel's discharge resulted from her union activities, making only one factual finding of its own and giving no clearcut indication of the legal theory upon which its decision was based. (See discussion infra.)
9. Although the ALO used the words “pretext” and “pretextual” several times in his proposed decision, it is clear from his express finding that legal cause for discharge existed and from both his opinion and the Board's opinion, each considered as a whole, that this is properly a “dual motive” case to which the “but for” test is applicable. (See Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 759, fn. 7, 195 Cal.Rptr. 651, 670 P.2d 305.) “ ‘[P]retext’ is merely another way of stating that there was no sufficient business justification.” (Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 730, 175 Cal.Rptr. 626, 631 P.2d 60.)
10. Given the level of her sophistication in respect to and her concern for her employment rights and those of other employees, Ms. Ferrel's testimony that she was warned against handing out leaflets but not buttons and her testimony that she was not aware she was being paid from the time the horn sounded was disingenuous and neither the ALO nor the Board placed any reliance on that testimony.
KAUFMAN, Associate Justice.
MORRIS, P.J., and RICKLES, J., concur.