A & D CHRISTOPHER RANCH, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, AFL–CIO, Real Party In Interest.
A & D Christopher Ranch (hereafter Christopher), an agricultural employer within the meaning of the Agricultural Labor Relations Act of 1975 (Lab.Code, § 1140 et seq.), seeks review of a decision of the Agricultural Labor Relations Board (hereafter Board) finding that it committed an unfair labor practice in violation of Labor Code section 1153, subdivisions (a) and (e),1 by refusing to bargain with the United Farm Workers of America, AFL–CIO (hereafter UFW). The Board further concluded that Christopher did not act reasonably and in good faith in seeking judicial review of the Board's certification of the Union and ordered Christopher to make its employees whole for their losses. Christopher contends that the decision is not supported by substantial evidence; we agree.
A Board ruling with respect to the certification of an election is not subject to direct judicial review; to obtain such review an employer must first engage in an unfair labor practice, such as refusal to negotiate with the union, and the Board must so find. That finding is subject to judicial review pursuant to section 1160.8 2 . The aforedescribed course of action, referred to as a “technical” refusal to bargain, was employed by Christopher.
I. THE ELECTION
The selection of a union as the exclusive representative of the agricultural employees of an employer for the purpose of collective bargaining (§§ 1156, 1156.2) begins with a petition which is either signed by, or accompanied by authorization cards signed by, a majority of the currently employed employees in the bargaining unit. (§ 1156.3, subd. (a).) The petition must allege that “the number of agricultural employees currently employed by the employer named in the petition, as determined from his payroll immediately preceding the filing of the petition, is not less than 50 percent of his peak agricultural employment for the current calendar year.” (§ 1156.3, subd. (a)(1), emphasis added.)
On July 26, 1980, the Union filed its “Petition for Certification.” Upon receipt of the signed petition, Board agents commenced an investigation to determine whether an election should be held. (§ 1156.3, subd. (a).) 3 On July 29, 1980, the Board's agents, after examining payroll figures supplied by Christopher, determined that Christopher was over 50 percent of peak, and the regional director directed that a representation election by secret ballot be held; the election was held the next day. The Union obtained the majority of the votes.4
Within five days after the election, Christopher filed a petition to set aside the election. Christopher alleged inter alia that the Union's petition was incorrect in that the number of agricultural employees employed by Christopher, as determined from its payroll immediately preceding the filing of the petition, was less than 50 percent of its anticipated peak agricultural employment for the current calendar year.
The executive secretary of the Board dismissed the majority of Christopher's objections (Cal.Admin.Code, tit. 8, § 20365, subd. (d)), but did set for hearing, inter alia, the question: whether Christopher was at 50 percent of peak agricultural employment for the current calendar year during the payroll period immediately preceding the filing of the petition for certification.
II. THE HEARING
Section 1156.3, subdivision (c), makes provision for a hearing on the question of whether an election shall be certified.5 Pursuant to a regulation promulgated by the Board (Cal.Admin.Code, tit. 8, § 20370, subd. (a)), a hearing was conducted by an “investigative hearing examiner” appointed by the executive secretary.6 Thereafter, the investigative hearing examiner submitted his initial decision. He found that “the Board agent in charge could reasonably have determined that the petition was timely filed with respect to peak,” and he recommended that Christopher's objections be dismissed and that the UFW be certified as the exclusive representative of Christopher's agricultural employees.
We note at the outset, that while the procedure herein employed was purportedly pursuant to regulations adopted by the Board pursuant to the authority of section 1144, that procedure is in direct contravention of statute. Section 1156.3 specifically requires the Board to conduct a hearing to determine whether the election should be certified. But the implementing regulation adopted by the Board 7 unequivocally prohibits what the statute 8 permits: the appointment of an official or employee of a regional office to act as investigative hearing examiner. Further, the regulation adopted by the Board 9 specifically requires what the statute 10 unequivocally forbids: that the hearing officer make recommendations. The adoption of such regulations which so clearly contravene the statutes effectively vitiates the intent of the Legislature. For it clearly appears that the Legislature intended that the Board and not a functionary make this important finding; and it is equally clear that the Board should do so only after itself reviewing the evidence, not the findings and recommendations of a functionary.11 If the Board questions the wisdom of making a finding or its ability to do so “on the record of such hearing,” it should seek relief or direction from the Legislature and not from misuse of its rule-making powers.
Upon exceptions to the hearing officer's recommendations being filed by Christopher, the Board directed that the matter be transferred directly to it for decision (Cal.Admin.Code, tit. 8, § 20370, subd. (h)). Thereafter the Board found it unnecessary to determine whether the Board agent had properly determined peak by utilizing the Saikhon “averaging” method (Mario Saikhon, Inc. (1976) 2 ALRB No. 2), finding instead that the Board agent could reasonably have determined peak using the “body count” method (see Donley Farms, Inc. (1978) 4 ALRB No. 66). Using the body count method, the Board noted that there were 429 employees on Christopher's payroll during the eligibility period and 755 employees on its payroll during the 1979 peak period, and that since 429 is more than 50 percent of 755, the peak requirement of section 1156.3, subdivision (a)(1) was met. As so modified, the Board affirmed the investigative hearing examiner's rulings, findings and conclusions, and certified that a majority of the valid votes had been cast for the UFW and that the UFW was the exclusive representative of all agricultural employees of Christopher. (A & D Christopher Ranch (1981) 7 ALRB No. 31.)
III. THE UNFAIR LABOR PRACTICE
The UFW thereupon requested that negotiations commence, and Christopher informed the UFW that it would not negotiate, for it had decided to seek judicial review of the certification. Upon the filing of charges by the UFW, the Board filed a complaint alleging that by refusing to commence negotiations and failing to provide information sought by the UFW, Christopher had violated section 1153, subdivisions (a) and (e). In lieu of a hearing before an administrative law officer, the parties agreed to transfer the matter directly to the Board based on stipulations. (Cal.Admin.Code, tit. 8, § 20260.) On November 23, 1982, the Board filed the decision and order hereunder review.
IV. THE DECISION ON PEAK
Christopher contends that the Board has failed to comply with the provisions of section 1156.4 in determining peak agricultural employment, and that Christopher acted reasonably in seeking judicial review. We granted review in this matter to consider whether the Board abused its discretion in determining the question of peak agricultural employment in light of section 1156.4 and the Board's own regulations. On review, we recognize that “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.” (§ 1160.8; Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 757, 195 Cal.Rptr. 651, 670 P.2d 305.)
Section 1156.3, subdivision (a)(1), provides that a representation petition must allege “[t]hat the number of agricultural employees currently employed by the employer named in the petition, as determined from his payroll immediately preceding the filing of the petition, is not less than 50 percent of his peak agricultural employment for the current year.” (Emphasis added.) Section 1156.4 elaborates on the foregoing section as follows: “Recognizing that agriculture is a seasonal occupation for a majority of agricultural employees, and wishing to provide the fullest scope for employees' enjoyment of the rights included in this part, the board shall not consider a representation petition or a petition to decertify as timely filed unless the employer's payroll reflects 50 percent of the peak agricultural employment for such employer for the current calendar year for the payroll period immediately preceding the filing of the petition. [¶] In this connection, the peak agricultural employment for the prior season shall alone not be a basis for such determination, but rather the board shall estimate peak employment on the basis of acreage and crop statistics which shall be applied uniformly throughout the State of California and upon all other relevant data.” (Emphasis added.)
In addition, section 1157.3 provides that “Employers shall maintain accurate and current payroll lists containing the names and addresses of all their employees, and shall make such lists available to the board upon request.” Board regulations also impose upon the employer the obligation to provide the Board with information to support a contention of prospective peak 12 and permit the regional director, in the event of the employer's failure to comply, to invoke a presumption that the petition is timely filed with respect to the employer's peak of season.13 At the hearing before the investigative hearing examiner, Robert Christopher testified that, in addition to providing the Board agent with payroll figures for the prior year, Christopher had a discussion with the agent, Lawrence Alderete, concerning Christopher's alternate contention that its prospective peak for the current year would occur sometime around the second or third week of August. Christopher testified that he told Alderete that the business had been growing at a rate of about 20 percent a year, and that the ranch had more labor intensive crops and a heavier bell pepper crop in 1980 due to the fact that Christopher had significantly changed its planting and growing techniques for bell peppers. Christopher admitted, however, that he provided no written documentation of his prospective peak contention, although “we offered to back up with written data.” Alderete, on the other hand, testified that there was absolutely no discussion of any anticipated increase in productivity, and that in determining peak employment he did not take into account any anticipated increase in productivity at the Christopher Ranch. The investigative hearing examiner failed to resolve the conflict, “because [according to his calculations] the 20% does not affect the outcome of this matter․” The investigative hearing examiner, following the standard applied by the Board in Charles Malovich (1979) 5 ALRB No. 33, concluded that Christopher had failed to meet its burden of providing the Board with information to support its contention that it had not yet achieved 50 percent of its anticipated peak for the current calendar year. The Board agreed with the investigative hearing examiner, concluding that Christopher “failed to support its contention that such a determination [on prospective peak] was necessary, and the mere statement that it was not yet at the required 50 percent of prospective peak does not present a ‘close case.’ ” (Emphasis added.)
A. The Procedure
We first address Christopher's complaint, raised in its exceptions and at oral argument, that the investigative hearing examiner, in issuing a decision which was a “cut-and-paste” job from the Union's brief, acted merely as a rubber stamp for the Union's position. Although Board regulations permit an investigative hearing examiner, in a complex case, to require the filing of post-hearing briefs as an aid to his decision (Cal.Admin.Code, tit. 8, § 20370, subd. (e)),14 the regulations do not permit the filing by a party of a recommended decision.15 We express our disapproval of the practice, utilized by the investigative hearing examiner in this matter, of incorporating verbatim into his decision large portions of the findings, conclusions and recommendation contained in the UFW's reply brief.
B. The Decision
In Charles Malovich, supra, 5 ALRB No. 33, the Board recognized that in prospective peak cases, crop and acreage statistics are necessary to determine peak. Nevertheless, after noting that under its regulations (Cal.Admin.Code, tit. 8, § 20310, subd. (a)(6)), the employer was required to provide information sufficient to support its contention of prospective peak, the Board found it more reasonable to require the party with access to information concerning peak to produce it in support of its claim rather than to require a Board agent to frame speculative questions about possibilities which might or might not affect employment at a particular ranch. The Board concluded that the employer did not meet its burden by the statement that anticipated peak would be “200 plus.”
In Tepusquet Vineyards (1984) 10 ALRB No. 29 the Board reexamined its regulations in light of the provisions of section 1156.4 as follows: “The Board's regulation section 20310(a)(6) involves the employer's obligation to provide information concerning its peak contentions; Labor Code section 1156.4, on the other hand, prohibits the Board from holding an election if the peak requirement is not met. While the Board may properly require an employer to provide the necessary peak information most accessible to it, see Charles Malovich, supra, 5 ALRB No. 33, the responsibility still rests with the Regional Director to determine whether the peak requirement has been met. The Regional Director should investigate all relevant data, as our prospective peak cases have noted, including information not provided by or accessible to an employer, if reasonably apparent or accessible to the Board agents. Based upon all the information adduced during the investigation, the Regional Director must still determine if the employer is at least at 50% of its peak employment for that year. Only if an employer fails to provide the necessary information accessible only to it, which failure obstructs or precludes the peak determination, may the Regional Director properly invoke the presumptions of the Board's regulation section 20310(e).” (Id., at pp. 6–7.) The Board concluded that although Board agents are not required to ask speculative questions about factors affecting peak, the employer's initial information was sufficient under Board precedent to support its claim that the petition was untimely and the “Board agents therefore should have sought an explanation from the Employer concerning the substantial difference between the peak needs in 1981 and 1982.” (Id., at p. 13.)
We are cognizant of the time constraints under which Board agents were operating in their investigation of peak. Although section 1156.3, subdivision (a) requires that the Board, under strike conditions, “․ shall, with all due diligence, attempt to hold a secret ballot election within 48 hours of the filing of such petition,” that provision is directory only, and should not be applied in such a manner as to deprive the employer of a reasonable opportunity to furnish information necessary to evaluate the timeliness of the petition. (See Cal.Admin.Code, tit. 8, § 20377, subds. (a) and (b).) In this instance, the initial information supplied by Christopher, albeit oral, was sufficient to require the Board agent to inquire further into Christopher's prospective labor needs in 1980. Christopher made every effort to cooperate fully with the Board agents in providing payroll records and developing information. Christopher offered to supply any information the agent might request on prospective peak and “consistently made itself or its staff available to provide payroll records, documents, and other information or to answer questions.” (Tepusquet Vineyards, supra, 10 ALRB No. 29 at p. 15.)
Despite the foregoing efforts by Christopher to cooperate, the Board agent's testimony established that he made no inquiries and requested no information with respect to prospective peak, and that he determined peak for the current calendar year solely by examination of the payroll figures for the prior season. The Board's review of the determination of peak, based as it was upon the information initially provided by the agent, was similarly limited. Section 1156.4 specifically provides, however, that “In this connection, the peak agricultural employment for the prior season shall alone not be a basis for such determination, but rather the board shall estimate peak employment on the basis of acreage and crop statistics which shall be applied uniformly throughout the State of California and upon all other relevant data.” (Emphasis added.) “Shall” is mandatory. (§ 15.) We construe the statute to impose upon the Board the obligation in all instances to inquire into and permit the employer to develop information on the question of prospective peak. The law specifically requires that all employees appointed by the Board shall “perform their duties in an objective and impartial manner ․” (See § 1145, original emphasis.) Certainly no less can be expected from their employer—the Board.
In our opinion, this is not a case where the employer has “fail[ed] to provide the necessary information accessible only to it, which failure obstructs or precludes the peak determination ․” (Tepusquet Vineyards, supra, 10 ALRB No. 29 at p. 7; see Carian v. Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654, 205 Cal.Rptr. 657, 685 P.2d 701.) Rather, it is a case where the Board agent, having an obligation so to do, failed to inquire into and develop information on the question of prospective peak. Under the circumstances, the Board's finding that a determination on prospective peak was not necessary is not supported by substantial evidence, and the Board's reliance on the peak agricultural employment for the prior season alone to determine peak for the current calendar year was not in compliance with statute.16
The decision of the Board finding that Christopher had engaged in an unfair labor practice in refusing to bargain with the UFW and the order based thereon are annulled. The matter is remanded to the Board with directions to vacate its order certifying the UFW as the exclusive representative of Christopher's agricultural employees and to proceed in a manner consistent with this opinion.
1. Labor Code section 1153 provides: “It shall be an unfair labor practice for an agricultural employer to do any of the following:“(a) To interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in Section 1152.“․“(e) To refuse to bargain collectively in good faith with labor organizations certified pursuant to the provisions of Chapter 5 (commencing with Section 1156) of this part”Unless otherwise indicated, all further statutory references are to the Labor Code.
2. Section 1160.8 specifically permits an election to be “reviewed as provided in Section 1158.” (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 27, 160 Cal.Rptr. 710, 603 P.2d 1306.) Section 1158 provides: “Whenever an order of the board made pursuant to Section 1160.3 is based in whole or in part upon the facts certified following an investigation pursuant to Sections 1156.3 to 1157.2 inclusive, and there is a petition for review of such order, such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under Section 1160.8 and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the board shall be made and entered upon the pleadings, testimony, and proceedings set forth in such transcript.”
3. Section 1156.3, subdivision (a), in pertinent part, provides: “Upon receipt of such a signed petition, the board shall immediately investigate such petition, and, if it has reasonable cause to believe that a bona fide question of representation exists, it shall direct a representation election by secret ballot to be held, upon due notice to all interested parties and within a maximum of seven days of the filing of the petition. If at the time the election petition is filed a majority of the employees in a bargaining unit are engaged in a strike, the board shall, with all due diligence, attempt to hold a secret ballot election within 48 hours of the filing of such petition. The holding of elections under strike circumstances shall take precedence over the holding of other secret ballot elections.”
4. The vote tally was as follows:United Farm Workers․188No Union․5Challenged Ballots․169-․․Total: 362
5. Section 1156.3, subdivision (c), provides: “Within five days after an election, any person may file with the board a signed petition asserting that allegations made in the petition filed pursuant to subdivision (a) were incorrect, ․ or objecting to the conduct of the election or conduct affecting the results of the election. [¶] Upon receipt of a petition under this subdivision, the board, upon due notice, shall conduct a hearing to determine whether the election shall be certified․”
6. California Administrative Code, title 8, section 20370, subdivision (a), provides: “The executive secretary shall appoint an investigative hearing examiner to conduct an investigative hearing on objections filed pursuant to Section 20365, on challenges pursuant to Section 20363, or on extensions of certifications pursuant to Section 20382 or on any other representation matter. No person who is an official or an employee of a regional office shall be appointed to act as an investigative hearing examiner.”
7. California Administrative Code, title 8, section 20370, subdivision (a), provides: “No person who is an official or an employee of a regional office shall be appointed to act as an investigative hearing examiner.”
8. Section 1156.3, subdivision (c), provides: “Such hearing may be conducted by an officer or employee of a regional office of the board.”
9. California Administrative Code, title 8, section 20370, subdivision (f), provides: “Within a reasonable time after the close of taking of testimony, the investigative hearing examiner shall issue an initial decision including findings of fact, conclusions of law, a statement of reasons in support of the conclusions, and a recommended disposition of the case.”
10. Section 1156.3, subdivision (c), states: “He shall make no recommendation with respect thereto.”
11. Section 1156.3, subdivision (c), states: “If the board finds, on the record of such hearing, that any of the assertions made in the petition filed pursuant to this subdivision are correct, ․ the board may refuse to certify the election.” (Emphasis added.)
12. California Administrative Code, title 8, section 20310, subdivision (a)(6)(B), provides: “If the employer contends that he expects that a payroll period later in the calendar year will reflect an average number of employee days worked that is more than twice the average number of employee days worked during the payroll period immediately preceding the filing of the petition, he shall provide the Board with information to support this contention.”
13. California Administrative Code, title 8, section 20310, subdivision (e)(1), provides: “If an employer fails to comply with the requirements of subsections (a) through (d) above, and such failure frustrates the determination of particular facts, the regional director may invoke any or all of the following presumptions:“․“(B) That the petition is timely filed with respect to the employer's peak of season.”
14. California Administrative Code, title 8, section 20370, subdivision (e), in pertinent part provides: “At the close of the taking of testimony, any party may request a reasonable period for closing oral argument on the record. Post-hearing briefs shall not be filed unless the investigative hearing examiner determines that, because of the complexity of the issues, he or she requires further briefs as an aid to decision, and then only upon such terms as the investigative hearing examiner shall direct ․”
15. Board regulations permit the filing of proposed findings of fact and conclusions of law in an unfair labor practice proceeding conducted by an administrative law judge pursuant to Chapters 4 and 6 of the Act. (Cal.Admin.Code, tit. 8, § 20278.) The matter at hand, however, involved a representation proceeding conducted pursuant to the provisions of Chapter 5 (commencing with § 1156) of the Act.
16. In light of our conclusion, we need not reach the other issues raised by Christopher.
ANDERSON, Associate Justice.
SCOTT, Acting P.J., and BARRY–DEAL, J., concur.