HARRY CARIAN SALES v. UNITED FARM WORKERS OF AMERICA AFL CIO (1984)

OPINION

Petitioner Carian Sales, an employer subject to the provisions of the Agricultural Labor Relations Act (Act), challenges the propriety of a final decision and order issued by the Agricultural Labor Relations Board (Board) in Harry Carian Sales (1980) 6 A.L.R.B. No. 55.   Petitioner specifically contends that the Board erred in (1) finding that it had committed 18 unfair labor practices in violation of Labor Code section 1153, subdivisions (a) and (c),¹ and (2) issuing a bargaining order in favor of United Farm Workers of America (UFW) as a form of remedial relief.

FACTS

Petitioner is a table grape producer operating in the Coachella Valley.   In January of 1977, the UFW initiated an organizational campaign among petitioner's employees.   Approximately two months later the union filed charges with the Board, alleging that petitioner had engaged in unfair labor practices.   These charges were heard in the spring of 1977 by an administrative law judge (ALJ–1).²  Thereafter, on June 20, 1977, the UFW filed a certification petition, and a representation election was conducted among petitioner's agricultural employees.   The union lost the election and filed objections which were consolidated with additional unfair labor practice charges and heard by a second administrative law judge (ALJ–2) in the spring of 1978.

In September of 1977, ALJ–1 rendered a decision (ALJD–1) wherein petitioner was found to have committed a number of the initial unfair labor practices alleged.   In December of 1978, ALJ–2 set aside the election after determining that petitioner had committed a number of the additional unfair labor practices alleged (ALJD–2).   He also characterized petitioner's conduct as sufficiently eggregious to preclude a fair election re-run and recommended that the Board order petitioner to bargain with the UFW.

On October 3, 1980, the Board issued a decision affirming and modifying in part the ALJ's unfair labor practice findings.   The Board also ordered the election set aside and directed that the UFW be certified as the exclusive representative of petitioner's employees for the purpose of collective bargaining.   This appeal followed.

SCOPE OF REVIEW

Inasmuch as each unfair labor practice challenged by petitioner involves findings of fact, contrary findings by the ALJ and the Board, and/or credibility resolutions, we discuss the law pertaining to scope of review at the outset.

 With respect to factual findings, the standard is whether the Board's findings are supported by “substantial evidence” on the record as a whole.  (§ 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 language in section 1160.8 prescribing the standard of review was taken verbatim from a corresponding section of the National Labor Relations Act (29 U.S.C., § 160(f)), and federal decisions under the federal statute are of precedential value in determining the parameters of this as well as other standards.   (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 930, 156 Cal.Rptr. 152.   See also § 1148 [“The Board shall follow applicable precedents of the National Labor Relations Act, as amended.”].)

The leading federal decision discussing the “substantial evidence” standard of review is Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.   Therein, the court concluded that more responsibility for the reasonableness and fairness of Labor Board decisions must be assumed than in the past.  “Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function.   Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds.   That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals.   The Board's findings are entitled to respect;  but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.”  (Id., at p. 490, 71 S.Ct. at 465;  emphasis supplied.)

The standard applicable when the ALJ and the Board make contrary findings was also addressed in Universal Camera.   According to the court:

“We do not require that the examiner's findings be given more weight than in reason and in the light of judicial experience they deserve.   The ‘substantial evidence’ standard is not modified in any way when the Board and its examiner disagree.   We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion.”  (Id., at p. 496, 71 S.Ct. at 468;  emphasis supplied.)

In response to Universal Camera, federal courts have concluded that “the ․ supporting evidence, in cases where [the Board] rejects the examiner's findings, must be stronger than would be required in cases where the findings are accepted, since in the former cases the supporting evidence must be deemed substantial when measured against the examiner's contrary findings as well as the opposing evidence.”  (N.L.R.B. v. Interboro Contractors, Inc. (2d Cir.1967) 388 F.2d 495, 499;  see also Penasquitos Village, Inc. v. N.L.R.B. (9th Cir.1977) 565 F.2d 1074, 1078.)

California courts have had occasion to review this standard.   In Abatti Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 107 Cal.App.3d 317, 336, 165 Cal.Rptr. 887, Staniforth, J. concurring noted that “ ‘[t]he Board is free to draw its own inferences from the evidence available to it.   Thus, if the Board can point to evidence which supports its inference, ․ the Board's finding [is allowed] to stand despite the fact that the Administrative Law Judge interpreted the facts contrary to the inference drawn.’ ”  (Quoting N.L.R.B. v. Pacific Grinding Wheel Co., Inc. (9th Cir.1978) 572 F.2d 1343, 1347;  emphasis supplied.)

 Finally, with respect to credibility resolutions, we are required to accept the Board's conclusion unless the testimony is “incredible or inherently improbable.”  (Montebello Rose Co., Inc. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 20, 173 Cal.Rptr. 856.)

Bearing these principles in mind, we now consider the propriety of each unfair labor practice challenged.

UNFAIR LABOR PRACTICES—ALJD–1

EMPLOYEE INFORMATION CARDS

On March 15, 1977, petitioner began distributing “information cards” which requested that employees disclose their name, address, and social security number.   At the bottom of each card was a typewritten statement which read:  “I DO WANT ☐” “I DO NOT WANT ☐” “․ the information contained on/in this card to remain confidential.”   This was followed by a space for the date and employee's signature.   Although the cards were printed in both English and Spanish, no explanation for the confidentiality clause was provided.   As a result, many employees refused to sign believing that it constituted an attempt to ascertain their union sentiments.   Owner, Harry Carian, testified that he had inserted the new clause based on employee request.

The ALJ determined that these cards, although innocuous on their face, constituted unlawful interrogation in violation of section 1153, subdivision (a).   The Board affirmed this finding.

 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.)   A showing of actual coercion is not required so long as an employer's conduct may reasonably be said 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.)   Actual coercion or intimidation is, however, an important factor to consider because its presence tends to indicate that the challenged conduct did reasonably tend to coerce.   (See N.L.R.B. v. Monroe Tube Co., Inc., supra, 545 F.2d 1320, 1328;  Sahara-Tahoe Corp. v. N.L.R.B. (9th Cir.1976) 533 F.2d 1125, 1126.)

 In this instance, petitioner's use of an unexplained confidentiality clause intimidated workers to such an extent that many refused to sign.   This evidence of actual coercion, coupled with the fact that petitioner had no right to indicate to workers it could lawfully keep their names and addresses confidential,³ leads us to conclude that the cards reasonably tended to interfere with the free exercise of section 1152 rights.   Accordingly, the Board's finding is affirmed.

TERMINATION OF MAYO CREW

On March 28, 1977, employee Vitaliano Mayo and 43 members of his “grape thinning” crew were discharged by petitioner.⁴  A UFW organizer testified that the Mayo crew was 85 percent “pro-union.”   Many members signed authorization cards, participated in UFW projects, donated funds for radio spots, passed out leaflets, and displayed posters.   Others joined Cesar Chavez in a union march the day before the discharge.   Petitioner asserted unproductivity as the reason for the discharge.   Comparative records were introduced which revealed that other crews worked considerably faster than the Mayo crew.   Petitioner did not, however, rely on his usual method of gauging productivity and no mass firing of an entire crew had occurred in over 19 years.

The ALJ determined that the motivating reason for the discharge was lack of productivity rather than union sympathy or activity.   Accordingly, he refused to find a section 1153, subdivision (a) or (c), violation.   The Board rejected this finding.

 Section 1153, subdivision (c), of the Act makes it an unfair labor practice for an employer “[b]y discrimination in regard to the hiring or tenure of employment, or any term or condition of employment, to encourage or discourage membership in any labor organization.”   The Board's General Counsel has the burden of establishing that the employer has engaged in discriminatory conduct which could have adversely affected employee rights.   (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 757–758, 195 Cal.Rptr. 651, 670 P.2d 305.)   Among the factors to be weighed in determining the General Counsel's prima facie case are the employer's anti-union animus, the timing of the alleged conduct, and the extent to which the employer knew that discharged employees were union sympathizers or activists.   Once the prima facie case is established, the burden shifts to the employer to demonstrate that he was motivated by legitimate objectives.   If the proffered justifications are not “legitimate and substantial,” an unfair labor practice results without reference to intent.  (Id.)

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

This evidence clearly establishes a prima facie case of discrimination.   Both the ALJ and the Board reached this conclusion.   The ALJ, however, accepted petitioner's stated justification, while the Board rejected it.

 As noted previously (see supra, p. 663), the “substantial evidence” standard is not modified when the Board and ALJ disagree.   If the Board “can point to evidence” which supports its inference and if this evidence is “substantial” when measured against the ALJ's contrary findings as well as the opposing evidence, its finding must be upheld.  (Abatti Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 107 Cal.App.3d 317, 336, 165 Cal.Rptr. 887;  Penasquitos Village, Inc. v. N.L.R.B. (9th Cir.1977) 565 F.2d 1074, 1078.)   In this instance, the Board in rejecting the ALJ's finding of economic justification indicated the evidentiary reasons for this rejection.   It noted the production records allegedly relied on by the petitioner contained a number of discrepancies and dealt this evidence a fatal blow by pointing out that these records were not received by the petitioner until after the termination of the Mayo crew.   We, therefore, affirm the Board's unfair labor practice finding.

WAGE INCREASE

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

The ALJ determined that petitioner's conduct constituted unlawful interference in violation of Labor Code section 1153, subdivision (a).   The Board affirmed this finding.

 Conduct immediately favorable to employees may constitute a section 1153, subdivision (a), violation in the same manner and degree as threats.  (N.L.R.B. v. Exchange Parts Co. (1964) 375 U.S. 405, 409, 84 S.Ct. 457, 459, 11 L.Ed.2d 435.)  “Interference is no less interference because it is accomplished through allurements rather than coercion.”   (N.L.R.B. v. Crown Can Co. (8th Cir.1943) 138 F.2d 263, 267.)   Despite petitioner's arguments to the contrary, the absence of a formally pending election petition does not alter this result.  (Royal Packing Co. v. Agricultural Labor Relations Bd. (1980) 101 Cal.App.3d 826, 840, 161 Cal.Rptr. 870.)   The test is whether the benefits promised or conferred are intended to and do interfere with workers' organization rights.  (Id.)  Given the fact that the grant of benefits was presented in an employer speech and leaflet at the peak of a pre-election campaign, one day after the firing of an entire crew, and two days after a widely publicized UFW march, there can be little room for doubt that the increase was made to induce employees to vote against the union.   Accordingly, the Board's finding is affirmed.

THREAT OF DISCHARGE

On March 30, 1977, organizer Sullivan entered one of petitioner's labor camps and distributed union leaflets to workers.   A number of workers read the leaflets and began conversing about the contents.   Sullivan testified that shortly thereafter, Supervisor José Castro picked up a leaflet, threw it down angrily, and stated “they're going to fire us all.”   Sullivan's handwritten chronology of alleged violations, prepared for the purpose of filing unfair labor practices, did not refer to the leaflet-throwing incident.   No witnesses corroborated the alleged threat and Castro denied ever having threatened employees with discharge.

Although the ALJ found Sullivan to be credible, he declined to find a violation of section 1153, subdivision (a), based on the absence of corroborating testimony and the omission of the alleged incident from Sullivan's chronology.   The Board refused to adopt the ALJ's finding and, relying on Castro's general denial, concluded that his statement contained an implied threat of discharge.

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

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

SURVEILLANCE BY SUPERVISOR ROBLES

On March 31, 1977, Father Tobin, an organizer for the UFW ministry entered one of petitioner's labor camps with three co-organizers and began speaking with a number of employees.   Supervisor Filiberto Robles approached, stood behind the group for two to three minutes, said nothing, and left.   Seven minutes later, Robles repeated this process.   The employees ceased conversing upon his first appearance and departed when he returned.   Father Tobin then proceeded to a second camp, accompanied by the same organizers, where he again encountered Robles.   After standing by silently as the organizers talked with workers, Robles eventually queried whether they were “going to stay ․ all night.”   Robles denied ever approaching the workers when they were talking to union organizers.

The ALJ credited Father Tobin's testimony and based on his statements determined that Robles had violated section 1153, subdivision (a), by engaging in unlawful surveillance.   The Board affirmed this finding.

 Surveillance of employee activities which has a reasonable tendency to affect the exercise of their section 1152 rights constitutes an unfair labor practice.  (Merzoian Brothers Farm Management Co., Inc. (1977) 3 A.L.R.B. No. 62, p. 3.)   Such surveillance is present when a supervisor intentionally interjects his presence and listens to conversations between organizers and workers.  (Dan Tudor & Sons (1977) 3 A.L.R.B. No. 69, p. 2.)   Based on a review of Supervisor Robles' actions in this instance, we conclude that substantial evidence exists to support the Board's finding.

Petitioner asserts that the presence of Robles in “common areas” should alter our determination.   This contention is not, however, supported by applicable precedent.  (See N.L.R.B. v. Aero Corp. (5th Cir.1978) 581 F.2d 511, 512 [supervisor's presence in a public park did not preclude a finding of unlawful surveillance];  N.L.R.B. v. Speed Queen (8th Cir.1972) 469 F.2d 189, 191 [supervisor's presence in a supermarket parking lot did not preclude a finding of unlawful surveillance].)  The Board's unfair labor practice finding is, therefore, affirmed.

THREAT OF DEPORTATION

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

Although the ALJ found Zendegas to be credible, he determined that because the statements were not directed at her, she could not characterize them as serious or in jest.   Accordingly, the ALJ declined to find coercion in violation of section 1153, subdivision (a).   The Board reached the opposite conclusion.

 Whether employer statements are coercive is normally a question peculiarly within the discretion of the Board “because of its particular sensitivity to the effects of speech in the labor ․ context.”  (Abatti Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 107 Cal.App.3d 317, 327, 165 Cal.Rptr. 887.)   In this instance, after considering the context in which Robles' statements were made and the widespread illegal conduct by petitioner, the Board concluded that these statements were not innocuous but rather constituted coercive threats designed only to discourage union participation.   The Board also noted that the testimony of those individuals who were the specific targets of these threats would have added nothing to inferences that could already be drawn from all the surrounding circumstances.   This delineation of evidentiary reasons for its unfair labor practice finding, coupled with the Board's wide discretion in this area, requires that we affirm that finding.

APRIL 6TH & 7TH LAYOFFS

On April 6 and 7, 1977, petitioner refused to continue in its employ 38 agricultural workers.   According to testimony elicited, all of these workers were visible and active supporters of the UFW.   Petitioner testified, however, that the layoffs were not based on the workers' union affiliation, but rather, on a need for a reduced work force dictated by the end of the thinning season.

The ALJ rejected petitioner's proffered business justification and determined that the employees had been discriminatorily discharged in violation of section 1153, subdivisions (a) and (c).   The Board affirmed this finding.

 Discriminatory layoffs are prohibited in the same manner as discriminatory discharges.  (See Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 937–939, 156 Cal.Rptr. 152.)   Although petitioner maintained that the layoff was necessitated by a need for a reduced work force, the Board's finding of anti-union animus is supported by “substantial evidence.”   The proffered justification is undermined by petitioner's admitted practice of retaining employees past the thinning operation and into the harvest season, and by its own payroll records which indicate that full crews were working within two weeks from the date of the layoffs.   Accordingly, we affirm the Board's finding.

UNFAIR LABOR PRACTICES—ALJD–2

THREAT OF REFUSAL TO HIRE IN THE FUTURE

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

The ALJ determined that Castro had unlawfully threatened the Martinez family in violation of section 1153, subdivision (a).   The Board affirmed this finding.

 Petitioner argues that the Board erred in affirming because (1) the testimony of Martinez did not corroborate that of his sister-in-law, and (2) both individuals sought employment with petitioner primarily to assist the UFW's organizing efforts.   After reviewing the record, we conclude that “substantial evidence” exists to support the Board's finding.   Although inconsistencies are present in the testimony of the principal witnesses, these inconsistencies are minor and insufficient to cast doubt on the substance of their testimony.   In addition, regardless of their motive in seeking employment with petitioner, both the ALJ and the Board chose to credit their testimony.   Because that testimony is neither “incredible [n]or inherently improbable,” we are bound by the Board's credibility resolution.  (See supra, p. 663.)

SURVEILLANCE BY ROBERT CARIAN

On June 6, 1977, Jesus Munoz, a UFW organizer, entered petitioner's property during a de facto lunch period.   As he began to converse with employee Juan Garza, Robert Carian, the son of owner Harry Carian, approached and stood about one yard away, observing them.   After a few minutes, Munoz left and Carian followed him.   Munoz next talked to employee Antonio Bielma, who was about to sign a union authorization card when Carian once again approached.   Bielma stated to Munoz, “How do you think we can sign with Robert Carian applying the pressure.”   Later that day, Carian approached when Munoz was talking to employee Manuel Bielma about signing an authorization card.   Although Bielma eventually signed the card, he refused to do so at that time.   Carian testified that he was present in the area, but was merely checking grapes.

The ALJ determined that Robert Carian was present for the express purpose of observing and/or overhearing conversations between the organizers and employees.   Consequently, he found that Carian had engaged in unlawful surveillance in violation of section 1153, subdivision (a).   The Board affirmed this finding.

 Petitioner asserts that the Board improperly failed to consider contradictions in the testimony of Jesus Munoz and Juan Garza and give those contradictions appropriate weight.   Placed in its proper framework, this argument resolves into yet another challenge to the Board's credibility resolutions.   Because the Board chose to credit the testimony of Munoz and Garza and because this testimony, despite minor discrepancies, is not “incredible or inherently improbable,” we must accept it as accurate.  (See supra, p. 663.)   Accordingly, we find “substantial evidence” to support the Board's finding.

VIOLENT ACTIVITIES OF ROBERT CARIAN

On June 7, 1977, Robert Carian hit a UFW organizer's car with his pick-up truck.   On that same date, he seized a UFW organizer and spun him around in order to see his union identification badge.   On June 8, 1977, Carian rammed a UFW organizer's car with a company tractor and assaulted a bodyguard of UFW President Cesar Chavez.

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

 “ ‘Absent compelling evidence of an imminent need to act to secure persons against danger of physical harm or to prevent material harm to tangible property interests,’ ” physical confrontations between union and employer representatives are violations of the Act.  (Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 316, 172 Cal.Rptr. 720, 625 P.2d 263, quoting Tex-Cal Land Management, Inc. (1977) 3 A.L.R.B. No. 14, p. 11, affd. Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 156 Cal.Rptr. 1, 595 P.2d 579.)   We have reviewed the record carefully, and conclude that none of the violations charged in this instance involved an imminent need to secure persons from physical harm or property from material harm.   The Board's finding, therefore, is affirmed.⁵

JUNE 17TH LAYOFFS

On June 17, 1977, petitioner laid off all harvesting employees except those living in its labor camps.   Each of the 13 individuals affected were visible union supporters.   Petitioner proffered a legitimate business reason for the layoffs.   Owner, Harry Carian, specifically asserted that fewer employees were needed for the upcoming harvest.   Although Carian admitted that this was the first year he had resorted to layoffs, he testified that in previous years workers had left voluntarily.

The ALJ determined that petitioner had discriminatorily discharged the employees in violation of section 1153, subdivisions (a) and (c).   The Board affirmed this finding.

 Petitioner argues that by rejecting its proffered business justification, the Board improperly discredited Carian's testimony.   As we have noted twice previously in the course of this opinion, we are required to accept the Board's credibility resolutions and any derivative finding unless it has chosen to credit testimony which is “incredible or inherently improbable.”  (See supra, p. 663.)   Since the Board did not, in this instance, credit such testimony, we conclude that its finding must be affirmed.

PRINTED INSULTS

In June of 1977, petitioner began printing and distributing leaflets among the workers.   One leaflet contained a thinly disguised message likening female organizers to prostitutes.

The ALJ found that this leaflet constituted unlawful interference in violation of section 1153, subdivision (a).   The Board affirmed this finding.

 Relying on the mandate set forth in section 1155,⁶ petitioner argues that the leaflet is protected speech because it contains no threat of reprisal or force, or promise of benefit.   Section 1155 was modeled after and is analogous to section 158(c) of the National Labor Relations Act.⁷  This latter statute was enacted to encourage free debate on issues dividing labor and management.   It was not, however, designed to permit either a union or employer to maliciously libel their opponents.  (Linn v. United Plant Guard Wkrs. of Amer. Loc. 114 (1966) 383 U.S. 53, 62, 86 S.Ct. 657, 662, 15 L.Ed.2d 582.)   Consequently, despite the limitations imposed by section 158(c), the NLRB has found that certain expressions of views by an employer, though not involving a threat or promise of benefit, constitute unfair labor practices.   In Wolfie's (1966) 159 N.L.R.B. No. 7, for example, an employer's reference to his employees as waitresses who had been taken off the street was construed as a section 8, subdivision (a)(1), violation.   Petitioner's leaflets, in this instance, insult and degrade union organizers in a like manner.   Conduct such as this has a natural tendency to cause employees to shun and avoid the union and persons affiliated therewith, thus interfering with the rights afforded by section 1152 of the Act.   Accordingly, the Board's decision is affirmed.

ELECTION EVE PROMISES

On election eve, June 26, 1977, Harry Carian, accompanied by Supervisor José Castro, visited one of petitioner's labor camps.   With all the workers assembled in the camp kitchen, Carian delivered a speech in which he expressed a preference for no union and enumerated the current benefits.   When he had finished, an employee complained about conditions at two of petitioner's ranches.   Carian promised that the conditions would be corrected and promised, in addition, higher wages.

The ALJ determined that Carian's post-speech statements promising incidental benefits constituted unlawful interference in violation of section 1153, subdivision (a).   The Board affirmed this finding.

 Section 1155 of the Act (see supra, p. 669, fn. 6) specifically authorizes and allows employers to voice their opposition to unions in the form of argument, opinions, or written material.   Such activities only constitute unfair labor practices when the expressions utilized contain threats of reprisal or force or promises of benefit.   With respect to benefits promised or conferred, the test is whether those benefits are intended to and do interfere with workers' organizational rights.  (Royal Packing Co. v. Agricultural Labor Relations Bd. (1980) 101 Cal.App.3d 826, 840, 161 Cal.Rptr. 870.)   Given the fact that the promises, in this instance, closely preceded the election and were made in the context of Carian's attempt to persuade employees to vote against the union, it must be concluded there is “substantial evidence” to support the Board's finding.

UNCHARGED INCIDENTS

On June 8, 1977, Robert Carian forced a UFW organizer's car to stop by swerving in front of it with his pickup truck.   During that same month, Carian approached UFW organizer Lucy Crespin on four separate occasions and asked her how much she charged for a trick.   He also stated that she would make a good bed partner.   Workers were present and heard Carian's comments on each occasion.   Although neither of these incidents was charged in the complaint, the Board found that they were intertwined with allegations contained therein and fully litigated at the hearing.   The Board specifically noted that the swerving incident was related to the June 8, 1977, tractor incident (see supra, p. 668), and the vulgar insults were related to the June leaflet incident (see supra, p. 669).

 A violation not alleged in the complaint may nevertheless be found when the unlawful activity was related to and intertwined with allegations in the complaint and the matter fully litigated.  (Doral Hotel and Country Club (1979) 240 N.L.R.B. No. 150.)   The incidents at issue here, however, are not sufficiently intertwined with any of the incidents charged.   By alleging in the complaint that Carian had rammed a UFW organizer's car with a tractor on June 8, petitioner was not apprised of the need to defend against a vehicle-swerving incident.   Similarly, the allegation in the complaint concerning the printed leaflets did not apprise petitioner that it would be required to defend against Carian's vulgar insults.   Even if the incidents had been said to be intertwined with those charged in the complaint, petitioner had no way of fathoming whether Carian's conduct on these two occasions was merely being considered as a factor in setting aside the election or as unfair labor practices in and of itself.   Consequently, petitioner had no opportunity to gather evidence or prepare legal arguments refuting the occurrence of such violations.   Fundamental fairness includes both the right to adequate notice and the right to defend against charged violations.   The Board's finding that these two incidents constituted independent unfair labor practices was, therefore, contrary to elementary constitutional principles of procedural due process and must be set aside.  (See Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 933, 156 Cal.Rptr. 152.)

ALLEGED ACCESS VIOLATIONS

Petitioner contends that on June 23, 1977, the UFW violated ALRB regulations, thus restraining or coercing employees in violation of section 1154, subdivision (a)(1).⁸  The alleged violation occurred when Cesar Chavez and a number of organizers entered petitioner's property.   Although this incident was not alleged in the complaint as an unfair labor practice, petitioner asserts that it was fully litigated at the hearing.   Accordingly, petitioner now argues that the Board erred in failing to find a violation and to order appropriate remedial relief against the UFW.

 Whether the access violation was litigated at the hearing is, in this instance, irrelevant.   Petitioner did not except to the ALJ's failure to find such a violation.   The Board did not, therefore, consider the issue now raised.   By neglecting to present this issue to the Board, petitioner has failed to exhaust its administrative remedies.   Such a failure precludes review on appeal.⁹  (Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 971, 157 Cal.Rptr. 476;  see also Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 756, fn. 6, 195 Cal.Rptr. 651, 670 P.2d 305.)

THE BARGAINING ORDER

ALJ–2 recommended petitioner be compelled to bargain with the UFW based on the premise the petitioner had indulged in certain unfair labor practices rendering a fair election impossible.   The Board adopted this recommendation and certified the UFW as the employees' exclusive representative for collective bargaining purposes.   This is the first time the Board has issued an order directing an employer to bargain with a labor organization absent an election in which a majority of the employees voted for union representation.   The Board reasoned the authority to issue such an order was derived from the general remedial provisions of section 1160.3 ¹⁰ and the NLRB precedent outlined in N.L.R.B. v. Gissel Packing Co. (1969) 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547.   By isolating that provision of 1160.3 which enables the Board “to provide such other relief as will effectuate the policies of this part,” the Board concluded the issue to be decided was whether the ALRA's remedial provisions were broad enough to encompass bargaining orders where the unfair labor practices have dissipated the union's majority support and diminished the possibility of a fair election.   The Board answered this question in the affirmative:  “In reviewing the legislative history and the historical context of the ALRA, we find the Act's secret ballot provisions are intended to preclude voluntary recognition of unions by employers.   There is no indication that the framers of the Act intended to endorse secret ballot elections as the only means of ascertaining employee choice where the results of the election are tainted by an employer's coercion and interference.”   (Board Decision at 36;  emphasis supplied.)   A review of the legislative history and the historical context of the ALRA does not support this conclusion.

 We believe the issue confronting the ALRB was:  “Did the Legislature intend to authorize the certification of a union as a bargaining agent by means other than being declared a winner in a secret ballot election?”   An examination of the history and hearings before the legislative committees surrounding the passage of the Act demonstrates the Legislature had no such intention.   The Legislature intended to, and did, provide secret ballot elections as the only means for certifying a bargaining representative.   Supporting this conclusion are:  (1) the analysis of the legislative analyst;  (b) comments of the proponents of the Agriculture and Services Agency represented by now Chief Justice Rose Bird in hearings before the Senate Industrial Relations Committee;  (c) expressions of the members of the Senate Industrial Relations Committee during hearings before the adoption of the ALRA;  (d) comments of Professor Herman M. Levy, labor consultant to the Agriculture and Services Agency in drafting the ALRA;  (e) the failure to pass AB 840 in 1979 amending the ALRA to specifically include the power of the ALRB to issue bargaining orders;  and (f) the basic differences between the NLRA and the ALRA.

a. LEGISLATIVE ANALYST

The legislative analyst in analyzing the ALRA for the Senate Industrial Relations Committee stated:

“PURPOSE:

“To provide secret ballot elections for farm workers to select their representative for collective bargaining.

“ANALYSIS:

“Agriculture is currently exempt from the provisions of the National Labor Relations Act.   There is no comparable state law which provides a procedure for farm workers to select a collective bargaining representative.

“․

“ELECTIONS:

“1. Secret ballot elections would be the only method of designating a labor organization as the exclusive bargaining representative of employees in a bargaining unit.

“․

“COLLECTIVE BARGAINING:

“1. A labor organization which wins a secret ballot election would be certified and would thereby be permitted to negotiate a collective bargaining contract with the employer.

“․

“UNFAIR LABOR PRACTICES:

“․

“6. It would be an unfair labor practice for an employer to recognize, bargain with, or sign a collective bargaining agreement with a noncertified labor organization.”

The excerpts from the analysis prepared for the Senate Industrial Relations Committee demonstrate the only method for selection of a bargaining representative is by secret ballot election.   The analysis, in discussing remedies for unfair labor practices, did not mention or include bargaining orders as a remedy.

b. THE PROPONENT'S COMMENTS

The Agriculture and Services Agency represented by now Chief Justice Rose Bird commented at length during the public hearing before the Senate Industrial Relations Committee concerning the method of selecting a collective bargaining agent:

“SENATOR STULL:  ․  Was there any discussion in all of these meetings, Ms. Bird, about the employer having the right to call an election?

“ROSE BIRD:  Yes, there was discussion of that.   The determination was made to follow pretty much what the National Labor Relations Act does.   It does not allow an employer to trigger an election unless you have a very limited situation in which you have a jurisdictional dispute.   Now, under our Act, we only allow one way of recognition and that's through a secret ballot election.   We don't allow recognitional strikes;  we don't allow authorization cards as they do under the NLRA, ․ [¶] ․ I suggest to you, in this whole area where there has been a real dispute as to the legitimacy of what has gone in the fields and as to the legitimacy of elections, that the only way in which you can have fair elections is to allow the employees themselves to determine whether or not they want a labor organization to represent them or they want no labor organization to represent them, and the best way you can insure that is to allow them to trigger their election mechanism when they decide they want or do not want one.”  (Pp. 50–51, Public Hearing Senate Industrial Relations Committee, 5/21/75;  emphasis supplied.)

“ROSE BIRD:  Now, secondly, we do not allow the recognitional strike, ․ or the handing over of authorization cards which is allowed under the National Labor Relations Act for recognition of a labor organization.   We did not allow that either because of the feeling that there was question always about the legitimacy afterwards of the procedures and whether or not there had been coercion used.   Therefore, we only allow a secret ballot election, and under the secret ballot elections, when you have a strike, you need a quick resolution of the issue.”  (Pp. 52–53, supra;  emphasis supplied.)

“ROSE BIRD:  ․  Also, under the National Labor Relations Act there are limitations in terms of the petitioning for an election.   The reason why they allow the employer to do it is because a labor organization can come to an employer and present cards and say, ‘We represent your employees', and they allow this type of procedure.   We do not allow it.   The only way you can gain recognition is through a secret ballot election under our bill, and so it's perfectly consistent that you allow the employees who will be doing the voting to trigger the election mechanism under those circumstances, ․”  (Pp. 55–56, supra;  emphasis supplied.)

“SENATOR ZENOVICH:  For the record, does that section mean that it prohibits all picketing against any employer for the purpose of recognition?

“ROSE BIRD:  Yes, recognitional picketing is totally precluded and prohibited under this Act because the only way in which you can gain recognition is through a secret ballot election.”  (P. 61, supra;  emphasis supplied.)

The following exchange shows section 1160.3 in no way was intended to expand the Board's authority to issue a bargaining order which would have the effect of overriding the requirement of a secret ballot election.

“JORDAN BLOOM:  Included—it says ‘and making employees whole when the board deems such relief appropriate for loss of pay resulting from the employer's refusal to bargain’.   It would be starting with ‘․ and making ․’ and ending with ‘․ refusal to bargain.’   That's the language that my clients are objecting to.

“SENATOR ZENOVICH:  Ms. Bird.

“ROSE BIRD:  Senator, this language was just placed in because there has been a great deal of discussion with the National Labor Relations Act that it ought to be amended to allow the ‘make-whole’ remedy, and this is something that the people who have looked at this Act carefully believe is a progressive step and should be taken.   And we decided since we were starting anew here in California, that we would take that progressive step.   Now, what we're talking here is only where an employer bargains in bad faith.   You make whole the employee with backpay, and that's all we're talking about.  (Emphasis supplied.)

“JORDAN BLOOM:  ․  Ms. Bird has already indicated you're to follow precedents of the National Labor Relations Act, but what we're doing with this language is changing the Act to an extent that it's gone all the way to the United States Supreme Court and it has declared that the National Labor Relations Board does not and, in one opinion, should not have the authority to bargain a contract for an employer.

“ROSE BIRD:  May I suggest the board is not bargaining any contract for the employer, and I think the gentleman knows that.   What it is doing here is giving discretion to the board to give backpay to employees where there has been bad faith, and I suggest that's an equitable remedy.  (Emphasis supplied.)

“SENATOR ZENOVICH:  Is it really giving it discretion?  ‘If upon the preponderance of the evidence,’ beginning at line 19, ‘․ of the testimony taken the board shall be of the opinion that any member named in the complaint has engaged in or blah, blah, blah ․ the board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practices to take affirmative action including reinstatement’.   That's mandatory, as I read it.   You said it was discretionary.

“ROSE BIRD:  No.   What I'm saying is that the board has to be convinced of the matter, is what I meant to say, and I appreciate the Senator clarifying my language.

“SENATOR ZENOVICH:  You want to change ‘shall’ to ‘may’?

“ROSE BIRD:  No, I don't, Senator.   It says, ‘when the board deems such relief appropriate․”

“SENATOR ZENOVICH:  Now, that's your discretion, I see.

“ROSE BIRD:  Yes.  ‘․ for the loss of pay resulting from the employer's refusal to bargain and to provide for such other relief as will effectuate the policies of this part․’  (Emphasis supplied.)

“SENATOR ZENOVICH:  Then it shall do all of these things.

“ROSE BIRD:  Right.   When the board deems such relief appropriate.”  (Pp. 64–66, supra;  emphasis supplied.)

This exchange demonstrates the proponents of ALRA provided only one method to select a bargaining representative.   It further demonstrates the make-whole remedies in section 1160.3 were designed to cover the loss of economic benefits and not to provide the ALRB with authority to issue bargaining orders.

c. SENATE INDUSTRIAL RELATIONS COMMITTEE COMMENTS

In addition to the comments of committee members covered in the above subsection, two additional expressions of legislative intent are found.

“SENATOR ZENOVICH:  Well, let me say for the record that this whole hearing is being recorded as you can see.   And that's for a purpose, so that there will be a record of what has transpired.   We recorded the last hearing, so that if and when this bill becomes the law, people can look at the record to make some determination with respect to the legislative intent.”  (P. 3, supra;  emphasis supplied.)

“SENATOR STULL:  I feel strongly on this employers' right here, and I would like to amend, and I don't have the lines or the language, but to give the employer the right to file a petition before an election.

“SENATOR ZENOVICH:  All right.   You would like to amend to add to the bill the right of the employer to call an election.   Is that right?

“SENATOR STULL:  Yes.

“SENATOR ZENOVICH:  And Senator Dunlap is opposing your motion.   All right.   Anybody want to say anything else on it or we'll call the roll.

“SENATOR DUNLAP:  Yes, just one word, Mr. Chairman.   After all, and I address this to you, Senator Stull, quite seriously.   Whose right to organize are we talking about?   It's the right of the employee, and it's their right to choose a collective bargaining agent if they desire to do that, and the reasons for the right of the employer to be able to do this under the National Labor Relations Act don't exist here because there is a secret ballot in all cases and that isn't true in the National Labor Relations Act.   So, I really don't see how there can be any conceivable harm to the employer, and we are talking about the employees' right to choose their bargaining agent.  (Emphasis supplied.)

“SENATOR STULL:  I would like to point out, also, Senator Dunlap, that the employer plays a very big part in this whole operation, and I don't think that he should be ignored in this.

“SENATOR DUNLAP:  I've heard many employers talk up and down the State of California for a long time, and they feel that their interests should be adequately taken care of with the secret ballot election.”  (Pp. 59–60, supra;  emphasis supplied.)

This latter comment was followed by a vote of the committee rejecting Senator Stull's amendment.

Senator Zenovich's comments indicate these hearings are to be considered in determining legislative intent and Senator Dunlap and Senator Stull's exchange followed by the vote of the committee indicate the intent of the Legislature to provide the only way a collective bargaining agent can be selected is by secret ballot.

d. PROFESSOR LEVY'S COMMENTS

Professor Levy, a labor law consultant active in drafting the ALRA, states in his article The Agricultural Labor Relations Act of 1975—La Esperanza De California Para El Futuro (1975) 15 Santa Clara Lawyer 783, 789–790:

“One new provision contained in the ALRA makes it an unfair labor practice for an employer to recognize, bargain with, or sign a collective bargaining agreement with any labor organization not certified pursuant to the Act.   This section ties in with the election procedure of the Act, which specifies that the sole means by which a labor organization can achieve certification as bargaining representative is to win a secret ballot election conducted by the board.   These sections thus prohibit voluntary recognition of a labor organization by an employer based on authorization cards signed by the employees and presented by the labor organization, a practice permitted by decisions interpreting the NLRA.   The ALRA's certification procedure reflects the feeling that the best method for determining the employees' choice of a bargaining representative is via the secret ballot election.”  (Fns. omitted;  emphasis supplied.)

This is a clear expression of the drafters' intention to provide only one method of selecting a bargaining representative, i.e., secret ballot election.

e. AB 840

In 1979, Assemblyman Mori, one of the members of a joint committee formed by the Legislature to oversee the ALRB introduced AB 840.   One provision of this bill would have authorized the ALRB to issue a bargaining order as a remedy for employer unfair labor practices which rendered the holding of a free and fair election impossible.   AB 840 failed to pass.

The introduction of AB 840 by a member of the Assembly designated to oversee the ALRB and the Legislature's failure to pass this amendment indicates a need for enabling legislation to authorize the ALRB to impose a bargaining order on the one hand and the Legislature's intention to deny the ALRB that authority on the other.

f. NLRA v. ALRA

The basic differences between the NLRA and the ALRA are enlightening as to the legislative intent concerning bargaining orders.   The ALRA provides the sole method of selecting and certifying a collective bargaining agent is by secret ballot election.   The ALRA under section 1153, subdivision (f), makes it an unfair labor practice for an employer to recognize a labor organization unless that organization was selected by secret ballot election and certified by the Board.   The NLRA does not require a secret ballot election as the sole means of selecting a bargaining representative.   The NLRA contains a number of alternate methods for recognizing labor organizations.   The NLRA does not contain a provision comparable to section 1153, subdivision (f).

The drafters of the ALRA failed to provide for alternate means of selecting a bargaining representative.   They specified the sole method of selecting the bargaining agent is by secret ballot.   Making it an unfair labor practice for an employer to recognize a labor organization not selected by secret ballot election evidences an intent on the part of the Legislature to prohibit the ALRB from issuing bargaining orders.   These differences have been the subject of ALRB comment and interpretation:  “[T]he ALRB—drawing upon its familiarity with the history of the ALRA and the ‘general understanding of the times'—concluded that section 1153, subdivision (f) was adopted for the purpose of prohibiting an employer from entering into a ‘sweetheart’ arrangement with one of two or more competing unions, and to make it clear that under the ALRA, unlike the NLRA, an exclusive bargaining representative may be designated only on the basis of a secret representation election, and not by the presentation of union authorization cards or any other less reliable method sanctioned under federal law.”  (Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 859, 176 Cal.Rptr. 753, 633 P.2d 949.)

It is obvious that in terms of employee choice a Board order authorizing a bargaining representative is less reliable than one designated by secret ballot election.   It is equally clear the statutory differences in the NLRA and the ALRA concerning the selection and certification of a bargaining agent demonstrate the Legislature's intention in enacting the ALRA was to provide secret ballot election as the sole means of selecting a bargaining representative.

 In analyzing the above indicia of legislative intent, we are mindful of the strong deference accorded an administrative agency's interpretation of a statute within its sphere of its expertise.   Despite the deference which should be given to the Board, we nevertheless have the ultimate responsibility and obligation to ascertain the intent of the Legislature so as to effectuate the purpose of the law.   Thus, when the Board's interpretation of legislative intent enlarges the intended scope of the statute, any order based thereon is void and the court not only may but it is their obligation to strike it down.  (See J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 29, 160 Cal.Rptr. 710, 603 P.2d 1306;  Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 24, 173 Cal.Rptr. 856.)

Turning first to the failure of the Legislature to specifically authorize the ALRB to issue bargaining orders, we conclude this authority is of such magnitude that it is inconceivable the Legislature would have left such an important remedy to the general language “to provide such other relief as will effectuate the policies of this part.”   This is similar to the afterthought commonly expressed in pleadings, i.e., “and for such other relief as the court may deem just.”

 Because the NLRA does not provide for economic make-whole remedies where the employer refuses to bargain in good faith, bargaining orders imposed by the NLRB and authorized by Gissel (N.L.R.B. v. Gissel Packing Co., supra, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547), have been the centerpiece of remedies for the enforcement of unfair labor practices based on a refusal to bargain.  Gissel was decided in 1969.   The Legislature was aware of Gissel authorizing a bargaining order only after a bargaining obligation had been invoked and was aware of the lack of economic make-whole remedies in the NLRA when it enacted section 1160.3 of the ALRA in 1975.  “It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them.”  (Estate of McDill (1975) 14 Cal.3d 831, 839, 122 Cal.Rptr. 754, 537 P.2d 874;  Buckley v. Chadwick (1955) 45 Cal.2d 183, 200, 288 P.2d 12.)

Noting the differences between the NLRA and the ALRA concerning economic make-whole remedies for refusal to bargain, the Legislature responded with specific provisions authorizing the ALRB to issue economic make-whole remedies where the employer refused to bargain in good faith.   The Legislature did not make a similar response to the differences between the NLRA and the ALRA with respect to the use of bargaining orders as a remedy for refusal to bargain.   Bargaining orders were not specifically addressed as a remedy.   It is not probable the Legislature would on the one hand severely limit the means of selecting a bargaining agent and on the other hand not express an intent, if such an intent existed, to specifically provide for an alternative means of selection when a bargaining order is considered an appropriate remedy.

The different treatment of these important remedies provides demonstrative evidence that the Legislature's failure to include a specific provision in the ALRA authorizing the ALRB to issue a bargaining order is more than a “Delphic divination by silence.”

 We now turn our attention to the previously outlined indicia of legislative intent.   The ALRB, by literally interpreting the catch-all provision in section 1160.3 as an authorization to issue a bargaining order, ignores two fundamental principles of statutory construction.  “First, and most significantly, [the Board's] approach contravenes the basic precept which teaches that ‘the object of all construction of statutes is to ascertain and give effect to the intention of the legislature․  In the analysis of statutes for the purpose of finding legislative intent, regard is to be had not so much as to the exact phraseology in which the intent has been expressed as to the general tenor and scope of the entire scheme embodied in the enactments․  [T]he obvious design of the law should not be sacrificed to a literal interpretation of such language.’  [Citations.]”  (Highland Ranch v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 848, 858–859, 176 Cal.Rptr. 753, 633 P.2d 949.)   Second, it downplays the importance to be attached to the comments of the legislators, drafters and proponents of the proposed legislation concerning the meaning of the language contained therein.   In considering all the factors previously discussed, we are able to glean one central theme:  neither the legislators, drafters, nor proponents of the ALRA expressed any desire to allow the ALRB to establish a variation or change in the method of selecting a bargaining representative.   The obvious design and purpose of the legislation was not to promote or create a bargaining representative for agricultural employees.   Instead it was intended to allow agricultural employees to select a bargaining representative by secret ballot election.

The ALRB's interpretation of the remedial provisions of section 1160.3 in such a manner as to allow the issuance of a bargaining order neither effectuates the policies of the Act nor comports with the legislative intent.   The ALRB's order certifying UFW as the labor representative and ordering Harry Carian Sales to bargain with the UFW will be annulled.

NLRB PRECEDENT

 Having determined the Legislature did not intend to grant the ALRB authority to issue bargaining orders through the remedial provisions of section 1160.3, only a brief discussion of the applicability of NLRA precedent to this situation is necessary.   Due to the basic differences between the NLRB and the ALRB, we conclude the case of N.L.R.B. v. Gissel Packing Co., supra, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547, is not applicable precedent authorizing the ALRB to issue a bargaining order.   It is undisputed section 1148 declares that “the Board shall follow applicable precedents of the National Labor Relations Act.”   The key word, of course, is “applicable” precedents.   Under the NLRA the union can secure the right to bargain with an employer even though it has never won a secret ballot election, whereas a major and overriding requirement of the ALRA is that all bargaining representatives must be elected by secret ballot and certified by the Board.   The NLRB does not have and the ALRB does have a full range of economic make-whole remedies available for its use in requiring the employers to bargain in good faith.   (See H.K. Porter Co. v. N.L.R.B. (1970) 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146.)   A quick review of Gissel indicates the bargaining order issued in that case was based on three premises not present here:  (1) The union did not have to be certified as the winner of a Board election to invoke a bargaining obligation.  (Id., 395 U.S. at p. 597, 89 S.Ct. at p. 1931.)   (2) The union had established majority status by possession of cards signed by a majority of the employees authorizing the union to represent them.  (Id., at p. 597, 89 S.Ct. at p. 1931.)  (3) The Board lacked statutory authority to order a make-whole remedy for unlawful refusal to bargain.  (See N.L.R.B. v. Gissel Packing Co., supra, 395 U.S. 575, 614, 89 S.Ct. 1918, 1940, 23 L.Ed.2d 547.)   The peculiarities of the NLRA left the NLRB without authority to control a wrongful refusal to bargain by traditional make-whole remedies.   The lack of this authority coupled with the employer's right to challenge the invocation of a bargaining obligation fathered the use of a bargaining order as a remedy.   No court, including Gissel, has ever considered a bargaining order appropriate or authorized absent the establishment of a bargaining obligation as a condition precedent.   The statutory differences between the NLRA and the ALRA render it impossible for the Gissel situation to arise under the ALRA.   The ALRA does not provide an alternative means to select a bargaining representative or to invoke a bargaining obligation.   The ALRA does provide effective economic traditional methods to curb unfair labor practices both before and after the selection of a bargaining representative.   This mandates against holding the NLRB precedential effect created by Gissel would be applicable to the ALRB and provides an additional reason for holding the ALRB is without authority to issue a bargaining order.

MAKE–WHOLE ORDER

 The Board determined that the Mayo crew termination, the April 6th and 7th layoffs, and the June 17th layoff all constituted unfair labor practices.   A make-whole order in favor of those persons affected was issued in response.   Use of this remedy is statutorily conferred upon the Board and may be utilized in its discretion.  (See § 1160.3.)   The use and wording of the make-whole remedy was not in this instance an abuse of that discretion.

DISPOSITION

The decision and orders of the Board determining that petitioner committed unfair labor practices by (1) the uncharged conduct of Robert Carian in allegedly swerving his pick up truck in front of a UFW organizer's car;  and (2) the uncharged violation wherein Robert Carian allegedly directed oral vulgar insults toward a female UFW organizer are annulled.

The Board's order certifying the UFW as the labor representative and ordering Harry Carian Sales to bargain with the UFW is annulled.

In all other respects, the decision and orders of the Board are affirmed.

FOOTNOTES

1.   Unless otherwise specified, all statutory references are to the California Labor Code.Section 1153, subdivisions (a) and (c) provide:“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․“(c) By discrimination in regard to the hiring or tenure of employment, or any term or condition of employment, to encourage or discourage membership in any labor organization.”

2.   At the time of the issuance of the ALJ's decision, all ALJ's were referred to as Administrative Law Officers.  (See Cal.Admin.Code, tit. 8, § 20125, amended eff. Jan. 30, 1983.)

3.   According to Administrative Code sections 20310, subdivision (a)(2), and 20910, subdivision (c), once a union has filed a notice of intention to organize, an employer must submit to the Board a complete and accurate list of the full names, current street addresses, and classifications of all agricultural employees in the proposed bargaining unit.  (Cal.Admin.Code, tit. 8, §§ 20310, subd. (a)(2), and 20910, subd. (c);  see also Henry Moreno (1977) 3 A.L.R.B. No. 40, pp. 2, 8.)   Upon determining the requisite 10 percent showing of interest, the Board must then provide a copy of this list to the filing labor organization.   (Cal.Admin.Code, tit. 8, § 20910, subd. (c).)  The information sought by petitioner, in this instance, was, therefore, subject to disclosure.

4.   “Thinning” is a pre-harvest operation designed to reduce the number of grapes per bunch so that those remaining grow to market standards of size and quality.

5.   In upholding these findings, we reject petitioner's arguments that Carian's actions were justified on the basis of alleged UFW access violations.   We do acknowledge that by taking excess access the union encourages and promotes violence;  violence cannot, however, be condoned as an appropriate response.

6.   Section 1155 provides:“The expressing of any views, arguments, or opinions, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute evidence of an unfair labor practice under the provisions of this part, if such expression contains no threat of reprisal or force, or promise of benefit.”

7.   Section 158(c) provides:“The expressing of any views, argument, or opinion or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.”

8.   Section 1154, subdivision (a)(1), provides in pertinent part:“It shall be an unfair labor practice for a labor organization or its agents to do any of the following:“(a) To restrain or coerce:“(1) Agricultural employees in the exercise of the rights guaranteed in Section 1152.”

9.   The Board did find a UFW access violation and in this manner exonerated Robert Carian from a charge of unlawful surveillance.   Petitioner's failure to raise the specific issue asserted here, however, precluded a determination of the possible coercive or restraining effect of this access upon worker rights.

10.   Section 1160.3 provides in pertinent part:Where the Board finds an unfair labor practice has occurred, it “shall issue ․ an order requiring such person to cease and desist from such unfair labor practice, to take affirmative action, including reinstatement of employees with or without back pay and making employees whole, when the Board deems such relief appropriate, for the loss of pay resulting from the employer's refusal to bargain, and to provide such other relief as will effectuate the policies of this part.”

RICKLES, Associate Justice.

MORRIS, P.J., and KAUFMAN, J., concur.