GEORGE ARAKELIAN FARMS INC v. UNITED FARM WORKERS OF AMERICA AFL CIO (1984)

OPINION

Challenging the validity of a representation election, George Arakelian Farms, Inc. (Arakelian or petitioner) refused to bargain.   On charges by United Farm Workers of America AFL–CIO (UFW) the Agricultural Labor Relations Board (ALRB or Board) determined that in refusing to bargain Arakelian committed unfair labor practices (violations of Lab.Code, § 1153, subds. (a) and (e) ¹ ) and issued an order which included as a matter of routine a provision requiring Arakelian to make its “employees whole for all losses of pay and other economic benefits sustained by them as the result of [its] refusal to bargain.”

Arakelian sought statutory review of the Board's decision and order pursuant to Labor Code section 1160.8, and we issued a writ of review and stay order.   Shortly thereafter, however, the California Supreme Court granted a hearing in the case of J.R. Norton Co. v. Agricultural Labor Relations Bd., the decision in which was later reported at 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306.   Board and UFW brought to our attention that at least two of the major issues in this case were the same as issues before the Supreme Court in Norton and suggested that proceedings in this court be held in abeyance until the decision of Norton.   We issued an order to that effect.

Subsequently, the Norton decision came down holding inter alia that it was inappropriate for the Board to issue a make-whole order routinely in cases in which the employer refused to bargain for the purpose of obtaining judicial review of an order rejecting its objections and certifying an election.

We thereupon remanded the case to the Board for reconsideration of the propriety of its make-whole order in light of Norton.   On remand the Board decided that its make-whole order was appropriate and reissued it in its revised order.

The matter is now again before us for review on all issues.  (All statutory references will be to the Labor Code unless otherwise specified.)

Facts

On December 15, 1976, following a petition for certification filed by UFW, an election was conducted among Arakelian's agricultural employees.   Out of 355 eligible voters 168 voted.   Of the 168 ballots, 139 were for the UFW, 12 were for no union, and 17 were challenged and unresolved.

Petitioner filed timely objections to the election pursuant to section 1156.3, subdivision (c) ² and ALRB regulation 20365 (Cal.Admin.Code, tit. 8, § 20365).³

The objections, supported by declarations, were four in number:  (1) that UFW organizers committed frequent and flagrant violations of ALRB's access rules during the election campaign;  (2) that the Calexico election site chosen, a small park adjacent to the Mexican border, was a UFW organizing area and was in and of itself an adverse and unfair influence on the requisite atmosphere of free choice by the employees;  (3) that the designated hours for balloting in conjunction with the number and location of polling places put the employer at an unfair disadvantage;  and (4) that Carlos Bowker, the Board agent who conducted the election, acted or gave the appearance of acting in a biased and prejudiced manner at the pre-election conference held two days before the election, giving the assembled workers the impression the Board supported the UFW by delaying the scheduled start of the meeting one and a half hours until the UFW representatives arrived, utilizing a UFW organizer as an interpreter when other interpreters were available, and invariably ruling, arbitrarily and without regard to the merits, in favor of the UFW on each and every contested question concerning the arrangements for the election, in some cases changing his ruling to coincide with UFW wishes after having initially ruled otherwise.

Pursuant to a delegation of authority from the Board (see § 1142, subd. (b) ⁴ ), the executive secretary of ALRB reviewed the objections and determined that only the objection relating to the UFW's access rule violations stated a prima facie case.   That objection was scheduled for hearing.   Petitioner's other objections were dismissed without investigation or hearing.⁵  Petitioner filed a request for review by the Board challenging the summary dismissal of three of its four objections (§ 1142, subd. (b) [see fn. 4, ante ];  Cal.Admin.Code, tit. 8, § 20393 ⁶ ).  The Board denied petitioner's request for review on the ground the request was untimely made.

A hearing was thereafter held on the access rule violations objection.   On stipulated facts, the hearing examiner determined there were a number of access rule violations by UFW organizers but that there was no evidence these violations had any coercive effect upon petitioner's employees or the outcome of the election (see Norton, supra, 26 Cal.3d at pp. 25–26, 160 Cal.Rptr. 710, 603 P.2d 1306, and decisions there cited).   Accordingly, the hearing examiner recommended this objection be dismissed and the UFW be certified as the bargaining representative.   Arakelian filed timely exceptions to the hearing examiner's decision (Admin.Code, tit. 8, § 20370(g));  however, the Board adopted the examiner's decision and certified UFW as the exclusive bargaining representative for Arakelian's agricultural employees (George Arakelian Farms, Inc. (Feb. 2, 1978) 4 A.L.R.B. No. 6).

Wanting judicial review of the Board's determination and having no other means of obtaining it, (see J.R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at pp. 10–11, 160 Cal.Rptr. 710, 603 P.2d 1306, and cases there cited), Arakelian refused to bargain with the UFW.   Consequently, on charges lodged by UFW, General Counsel filed a complaint against Arakelian charging that by refusing to bargain Arakelian committed two unfair labor practices:  (1) interfering, restraining or coercing the employees in the exercise of their rights under the ALRA (Lab.Code, § 1153, subd. (a)), and (2) refusing to bargain collectively in good faith with the certified labor organization (Lab.Code, § 1153, subd. (e)).

By agreement of the parties, the unfair labor practice charges were submitted directly to the Board on stipulated facts.   The Board determined that in refusing to bargain Arakelian was guilty of the unfair labor practices charged in the complaint and issued a cease and desist order and an order requiring Arakelian to take affirmative steps to remedy its unlawful conduct including the make-whole provision referred to earlier.

In its petition for review filed in this court August 25, 1978, Arakelian's primary contentions were:  (1) that the ALRB erred in dismissing three of its four objections to the election without investigation or hearing because:  (a) a hearing on the objections was statutorily mandated by subdivision (c) of section 1156.3 (see fn. 2, ante ) and (b) the executive secretary and Board employed an erroneous legal standard in dismissing its objections without investigation or hearing, whereas under correct legal standards the dismissed objections were sufficient to require an investigatory hearing;  (2) that, accordingly, in refusing to bargain Arakelian did not commit unfair labor practices;  (3) that whether or not it had committed unfair labor practices, the Board's practice of imposing a make-whole remedy routinely “whenever an employer has been found to have refused to bargain” (Perry Farms, Inc. (Apr. 26, 1978), 4 ALRB No. 25, at p. 9) without distinguishing between refusals to bargain for the purpose of obtaining judicial review and other refusals to bargain was impermissible under the Agricultural Labor Relations Act (ALRA);  and (4) the method of calculation of the make-whole remedy as indicated by the Board's order was arbitrary and unlawful.

The two identical issues involved in the Norton case were, of course, whether or not the Board is statutorily required to hold a hearing on election objections and whether or not the Board may lawfully impose a make-whole remedy routinely in all cases of a refusal to bargain.  Norton held that notwithstanding the language in section 1156.3, subdivision (c), “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” (emphasis added), the Board is not required to conduct a hearing unless the objection states a prima facie case for setting aside the election.   (Norton, supra, at p. 17, 160 Cal.Rptr. 710, 603 P.2d 1306.)   It also held the Board may not, consistently with the objectives of the ALRA, impose a make-whole remedy routinely and without the exercise of discretion in cases involving a refusal to bargain for the purpose of obtaining judicial review of the validity of an election.  (Norton, supra, at pp. 34–35, 160 Cal.Rptr. 710, 603 P.2d 1306.)   The Norton decision was filed December 12, 1979, and became final in January 1980.

By order dated February 8, 1980, we remanded the case to the Board for reconsideration of the make-whole provision in light of the Norton decision, otherwise retaining jurisdiction in this court.⁷  On remand, the Board reimposed the make-whole remedy.

In supplementary briefing authorized by the remand order of this court, petitioner advances the additional contention that Board's imposition of a make-whole remedy under the circumstances appearing here is not consistent with the standards and reasoning set forth in the Norton decision and constitutes an abuse of administrative discretion.

Discussion

The Make-Whole Remedy

In the Board's original order the make-whole provision required Arakelian to make its employees whole for all losses of pay and other economic benefits sustained by them as a result of Arakelian's refusal to bargain from February 28, 1978, to such time as it should commence to bargain in good faith.   The order specified the make-whole remedy should be based in general on the criteria set forth in Perry Farms, Inc. (Apr. 26, 1978) 4 ALRB No. 25 and Adam Dairy (Apr. 26, 1978) 4 ALRB No. 24 and, specifically, on a “new basic make-whole wage” to be determined by the Regional Director after investigation.

In its petition for review Arakelian asserted that the method of determining the basic make-whole wage utilized in Adam Dairy was erroneous because it was based on only 37 of 57 contracts considered and, in any event, was based on wage rates paid by employers who in fact signed UFW agreements rather than the wages paid by growers who were bargaining in good faith but had not come to terms with the union.

 It is inappropriate for us to attempt to resolve these questions for several reasons.   First, both the Board and UFW (collectively, respondents) urge that these contentions of petitioner are premature and would be ripe for review only after a compliance hearing.   We agree, particularly in view of the fact that Board's revised order issued following the remand from this court eliminated significant portions of the language of the earlier order.   In this regard the revised order simply requires petitioner to “Reimburse its agricultural employees for all losses of pay and other economic losses sustained by them as a result of Respondent's refusal to bargain.”   Finally, because we have concluded the imposition of the make-whole remedy in the circumstances of this case is inconsistent with the standards and reasoning set forth in Norton, there is no apparent necessity for us to reach the issues raised by these contentions.   We proceed, therefore, to consider whether the make-whole remedy is consistent with the Norton decision and the ALRA.

In Norton, the court commenced its analysis with the foundational observation “that a principal purpose of the ALRA ․ is to enable agricultural employees to elect ‘representatives of their own choosing ․ for the purpose of collective bargaining or other mutual aid or protection’ ․ and further guarantees to employees the right ‘to refrain from any or all of such activities․' ”  (26 Cal.3d at p. 30, 160 Cal.Rptr. 710, 603 P.2d 1306;  orig. emphasis.)

The court then recognized and reconciled the two competing tensions that exist when a representation election is being attacked:  “The first is the need to discourage frivolous election challenges pursued by employers as a dilatory tactic designed to stifle self-organization by employees.   The second is the important interest in fostering judicial review as a check on arbitrary administrative action in cases in which the employer has raised a meritorious objection to an election and the objection has been rejected by the Board.”  (J.R. Norton Co., supra, 26 Cal.3d at p. 30, 160 Cal.Rptr. 710, 603 P.2d 1306.)

The court approved the use of make-whole relief to discourage “frivolous election challenges designed to stifle employees' self-organization.”  (J.R. Norton Co., supra, 26 Cal.3d at pp. 31–32, 39, 160 Cal.Rptr. 710, 603 P.2d 1306.)   But it concluded “[t]he ALRB's blanket rule for the application of the make-whole remedy does not provide a sufficient guarantee that the integrity of representation elections will be preserved” and disapproved imposition of the make-whole remedy in cases in which the employer refused to bargain for the purpose of obtaining judicial review and “reasonably and in good faith believed the violation would have affected the outcome of the election.”  (J.R. Norton Co., supra, 26 Cal.3d at p. 39, 160 Cal.Rptr. 710, 603 P.2d 1306;  see also pp. 34–35, 160 Cal.Rptr. 710, 603 P.2d 1306.)

 As stated most recently in Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 772, 195 Cal.Rptr. 651, 670 P.2d 305:  “[T]his court held in J.R. Norton that the [make-whole] remedy may not be used when the employer commits a ‘technical’ refusal to bargain as the only means to obtain judicial review of a colorable, good-faith challenge to union certification.   If a sincere but unsuccessful challenge exposed the employer to liability for all gains prompt bargaining might have produced, ․ meritorious challenges, which serve the Act's purposes, would be deterred.”

In reconsidering the propriety of imposing the make-whole remedy in this case following the remand from this court, the Board reviewed all four of Arakelian's objections to the election, not just the access rule violations objection, and considering them separately, rejected each.   As to the objection that, without regard to their merit, the Board agent had ruled invariably in favor of the UFW on each contested issue concerning the election arrangements, in some cases altering his previously announced decision to accommodate the union's preferences, the Board stated:  “Citing Melco Vineyards, 2 ALRB No. 14 (1976), the Executive Secretary dismissed this objection on the grounds that Respondent failed to present evidence of bias, as a Board agent has discretion to set the time and place of an election, and setting an election over the specific objection of an employer does not constitute evidence of bias.”  (Emphasis added.)

As to the objection the Board agent had given the appearance of bias by delaying the start of the pre-election conference for an hour and a half to accommodate the arrival of UFW representatives, by selecting a UFW organizer to act as interpreter when other interpreters were available and by making decisions as to the time, locations and number of observers for the election invariably in accordance with the UFW's suggestions and without regard to their merit the Board stated:  “The Executive Secretary dismissed the objection to the use of a UFW representative as an interpreter ․ and to the Board agent's decision about the number of observers on the grounds that bias or the appearance of bias does not constitute grounds for setting aside an election unless it is shown to have affected the conduct or results of the election or to have impaired the validity of the balloting as a measure of employee choice, which Respondent failed to show.”  (Emphasis added.)

The remaining objections were also rejected on the ground there was no evidence they had affected the election.   The Board then concluded:  “Upon reconsideration of these objections ․ we conclude that Respondent's objections to the election are not substantial enough to support a reasonable, good faith belief ‘that the union would not have been freely selected by the employees as their bargaining representative had the election been properly conducted.’  ․ Each objection was dismissed either for lack of supporting evidence or because it clashed with an established labor law principle.   In refusing to bargain and pursuing its objections through litigation, Respondent did not satisfy the requirement that its ‘litigation posture must have been reasonable at the time of the refusal to bargain.’ ”  (Emphasis in orig.)

As we hereafter explain, petitioner's election objections based on Board agent misconduct were erroneously dismissed without an investigatory hearing, primarily because their sufficiency was measured against an incorrect standard.   However, even if that were not so, the Board's imposition of the make-whole remedy in the circumstances shown here was patently not in keeping with either the letter or the spirit of the Norton decision.   As the court in Norton took pains to say:  “We emphasize that this holding [that a make-whole remedy is appropriate if the employer's contesting the election was an elaborate pretense to avoid bargaining] does not imply that whenever the Board finds an employer has failed to present a prima facie case, and the finding is subsequently upheld by the courts, the Board may order make-whole relief.   Such decision by hind-sight would impermissibly deter judicial review of close cases that raise important issues concerning whether the election was conducted in a manner that truly protected the employees' right of free choice.”  (J.R. Norton Co., supra, 26 Cal.3d at p. 39, 160 Cal.Rptr. 710, 603 P.2d 1306.)

Except for the objection based on union violations of the access rule as to which a hearing had been granted, Arakelian's objections were based primarily on alleged Board agent misconduct.   Arakelian was contesting the propriety of the standard employed by the executive secretary and the Board to determine whether the asserted Board agent misconduct constituted a prima facie case for setting aside the election.   At the time there was no California appellate decision on the question, and the standard employed by the executive secretary and the Board was not the standard applied to Board agent misconduct by the National Labor Relations Board (NLRB).   In addition, the Norton decision had not yet come down;  indeed, hearing in the Norton case had not been granted by the California Supreme Court at the time Arakelian's petition for review was filed in this court, and Arakelian was also contending that a hearing on its objections was mandatory under section 1156.3, subdivision (c), of the ALRA (see fn. 2, ante ) and that the Board's routine imposition of a make-whole remedy was impermissible under the ALRA, both of which contentions raised significant issues of first impression later decided in Norton.⁸  Except for the happenstance that the Norton case reached the Supreme Court before review in this case had been completed, this case might well have been the one in which those issues were resolved.

 There is nothing in the record of this case indicating petitioner was contesting the election in bad faith or that its objections constituted a “frivolous election [challenge] pursued by [it] as a dilatory tactic designed to stifle self-organization by [its] employees.”  (J.R. Norton Co., supra, at p. 30, 160 Cal.Rptr. 710, 603 P.2d 1306.)   On the contrary, the record demonstrates that petitioner's objections raised three fundamental questions relating to election procedure and that Arakelian did everything within its power to expedite resolution of its election challenge.   In the hearing on its access rule violations objection, it stipulated to the facts and in the unfair labor practice proceedings it agreed to have the matter transferred directly to the Board and again stipulated to the facts.   It was the Board and UFW that suggested to this court our review be held in abeyance pending the Supreme Court decision in the Norton case, and petitioner is in no way responsible for the subsequent delays in obtaining judicial review in this case.

The Board's implied conclusion that Arakelian's objections to the election were pursued in bad faith and as a dilatory tactic is without evidentiary foundation and the imposition of the make-whole remedy in these circumstances is contrary to the Norton decision and inconsistent with the purposes of the ALRA.

Propriety of Dismissing the Objections without Hearing

Preliminarily, we must consider respondents' contention that review of this issue is precluded by petitioner's failure to exhaust its administrative remedies.   Arakelian's request for review by the Board of the executive secretary's dismissal of three of its four objections without investigation or hearing was filed one day late ⁹ and was denied by the Board as not timely filed.   Based on these facts, respondents contend that review of the question whether the dismissed objections were sufficient to warrant a hearing is precluded by petitioner's failure to exhaust its administrative remedies.

In affording an administrative agency ample rein to exercise its statutory jurisdiction, the doctrine of exhaustion of administrative remedies is, of course, fundamental.  (See 2 Witkin, Cal.Procedure (2d ed. 1970) Actions, § 181, pp. 1045–1046 and cases there cited;  see also Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d at p. 756, fn. 6, 195 Cal.Rptr. 651, 670 P.2d 305;  Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 971, 157 Cal.Rptr. 476.)   However, there is a well-recognized exception to the rule that governs this case.   “ ‘The rule that a party must exhaust his administrative remedies prior to seeking relief in the courts “has no application in a situation where an administrative remedy is unavailable or inadequate.”  (Martino v. Concord Community Hospital Dist. (1965) 233 Cal.App.2d 51, 56 [43 Cal.Rptr. 255]․)’  (Diaz v. Quitoriano [1969] 268 Cal.App.2d 807, 812 [74 Cal.Rptr. 358].)”  (Ramos v. County of Madera (1971) 4 Cal.3d 685, 691, 94 Cal.Rptr. 421, 484 P.2d 93, fn. omitted;  accord Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 829, 140 Cal.Rptr. 442, 567 P.2d 1162.)   A specific application of “unavailability or inadequacy” exception is found in cases in which the agency's position on the point in question has been made clear so that what its ruling would have been in the particular case is known and exhaustion of the administrative process would therefore have been futile.   (Huntington Beach Police Officers' Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 499, 129 Cal.Rptr. 893;  Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834, 112 Cal.Rptr. 761.)

 Here, because of the unique circumstance that the Board did in fact evaluate the dismissed objections in its redetermination on remand of the propriety of the make-whole remedy under the Norton decision, what the Board's ruling would have been had it reviewed the dismissal on the merits is known.

As previously stated, on reconsidering on remand the propriety of imposing the make-whole remedy, the Board considered in detail the dismissed objections, quoted with approval the Executive Secretary's reasons for dismissing them without hearing and again rejected them.   The Board not only found the objections insufficient to warrant a hearing, but, indeed, “not substantial enough to support a reasonable, good faith” contest of the election.

We conclude the purpose of the exhaustion doctrine, to give the administrative agency an opportunity to rule on questions committed to its jurisdiction before any judicial intervention, has been fully fulfilled in this case and judicial review is not foreclosed by the exhaustion doctrine.

Arakelian contends the “outcome determinative” standard employed by the Board in deciding whether or not an objection states a prima facie case for setting aside the election is an inappropriate standard by which to judge objections based on Board agent misconduct and that judged by the standard developed in NLRB decisions, its objections based on alleged Board agent misconduct in this case were sufficient to require a hearing.   Although we do not believe the ALRB is required to adopt the federal standard, we conclude the Board either misapplied its so-called “outcome determinative” standard in this case or now applies a less demanding standard in testing objections based on Board agent misconduct (see George A. Lucas & Sons (Sep. 10, 1982) 8 ALRB No. 61) under which petitioner's objections were sufficient to invoke an investigatory hearing.

Subdivision (c) of regulation 20365 requires an objections petition to be “accompanied by a declaration or declarations setting forth facts which, if uncontroverted or unexplained, would constitute sufficient grounds for the Board to refuse to certify the election.”   Subdivision (d) of the same regulation authorizes the executive secretary to dismiss without investigation any objection that does not satisfy subdivision (c).¹⁰  The procedure set forth in the regulation for dismissal of objections without investigation or hearing when they fail to state a prima facie case was found in Norton to be a permissible exercise of the Board's rule-making power, and petitioner does not now contend otherwise.   The questions remain, however, what the proper standard is for determining the sufficiency of objections based on alleged Board agent misconduct and whether petitioner's objections were sufficient to warrant an investigatory hearing when measured by that standard.

Petitioner asserts that the standard established by the federal cases for testing the sufficiency of election objections based on Board agent misconduct is the so-called “neutrality” standard originated in a decision of the NLRB, Athbro Precision Engineering Corp. (1967) 166 NLRB 966, in which the Board stated in relevant part:  “Although the Board Agent's conduct did not affect votes of employees, we do not agree that this is the only test to apply.  [¶] The Board in conducting representation elections must maintain and protect the integrity and neutrality of its procedures.   The commission of an act by a Board Agent conducting an election which tends to destroy confidence in the Board's election process, or which could reasonably be interpreted as impugning the election standards we seek to maintain, is a sufficient basis for setting aside that election.”  (166 NLRB at p. 966.)

In its return filed in October 1978, the Board asserted that “contrary to petitioner's contention, the NLRB does use an outcome determinative test to evaluate allegations of board agent misconduct.   There are, in fact, two different strains of NLRB precedent on the subject, and the Board's use of an outcome determinative test is supported by one of them.”  (Emphasis omitted.)   No decisional authority is cited for that proposition, however.   And a number of decisions of the Court of Appeals supports petitioner's position.  (E.g., N.L.R.B. v. Fenway Cambridge Motor Hotel (1st Cir.1979) 601 F.2d 33, 36–37;  N.L.R.B. v. Osborn Transp., Inc., (5th Cir.1979) 589 F.2d 1275, 1280;  Provincial House, Inc. v. N.L.R.B. (6th Cir.1977) 568 F.2d 8, 10–11;  Delta Drilling Company v. N.L.R.B. (5th Cir.1969) 406 F.2d 109, 112–113;  see also N.L.R.B. v. Eskimo Radiator Mfg. Co. (9th Cir.1982) 688 F.2d 1315, 1319.)

In the Fenway Cambridge Motor Hotel case decided in July 1979, the court stated in pertinent part:  “In determining whether there was an abuse of discretion, we first note that the Regional Director erred in applying only an ‘impact’ standard to determine whether the elective process was contaminated.   The correct standard to apply in determining whether a Board agent's misconduct invalidated an election is articulated in Athbro Precision Engineering Corp. ․  While the procedural history of Athbro is curious, [fn. omitted] its holding continues to be the yardstick against which misdeeds of Board agents are measured․  [¶] We believe that the proper approach, and indeed the one followed in the above-cited cases, is to assess on a case by case basis whether the alleged misconduct ‘tends to destroy confidence in the Board's election process' or ‘could reasonably be interpreted as impugning the election standards' sought to be maintained.”  (601 F.2d at pp. 36–37.)

Respondents urge, however, that whatever the federal standard may be, the ALRB is not required to adopt it.   Respondents point out that the ALRB has found the “laboratory conditions” doctrine on which they say the “neutrality” test is based, inapplicable in the agricultural employment context (see George A. Lucas & Sons (Sep. 10, 1982) 8 ALRB No. 61;  D'Arrigo Bros. of California (May 10, 1977) 3 ALRB No. 37).   The argument is that it is far more difficult and expensive to conduct rerun elections in the agricultural employment context than in the general industrial employment context.

 As pointed out by the court in Norton the overriding purpose of the ALRA is to enable agricultural employees to elect representatives of their own choosing (J.R. Norton Co., supra, 26 Cal.3d at p. 30, 160 Cal.Rptr. 710, 603 P.2d 1306), so if there were Board agent misconduct of such a nature as actually to impugn the integrity of the election, no added difficulty or extra expense involved in a rerun could justify validating the tainted election.   However, we may assume for purposes of this decision that respondents are correct that differentiating conditions exist between agricultural employment and industrial employment generally and that the ALRB is not required to adopt the federal standard.  (See Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 412–413, 128 Cal.Rptr. 183, 546 P.2d 687;  but cf. Triple E Produce Corp. v. Agricultural Labor Relations Bd. (1983) 35 Cal.3d 42, 48, 196 Cal.Rptr. 518, 671 P.2d 1260.)

Much of the parties' debate over the federal standard is really aside the mark.   The significant lesson taught by the federal decisions is not the precise standard adopted by the NLRB and Court of Appeals, but that a different standard has been adopted for evaluating election objections based on Board agent misconduct from the “impact” standard applied when the asserted misconduct is that of a party, a party's agent or an outsider.   The adoption of a different standard is a recognition that Board agent misconduct stands on a different footing than and involves considerations not implicated by misconduct of a party, a party's agent or an outsider.   The insistence of the NLRB and the Court of Appeals that representation elections be conducted by Board agents in strictly neutral fashion, and indeed with the appearance of Board neutrality, is at least in part a recognition of the great influence on employees' free choice partisanship or the appearance of partisanship on the part of the Board might have.

UFW asserts that the ALRB employs the “outcome determinative” standard in all election contests and makes no distinction between cases involving Board agent misconduct and misconduct on the part of a party or others.   Whether that is so we are not required to determine:  the standard utilized by the ALRB in judging Board agent misconduct at the time Arakelian's objections were lodged was clearly and unequivocably set out in its unanimous decision in Coachella Growers, Inc. (Jan. 22, 1976) 2 ALRB No. 17:  “[T]o constitute grounds for setting an election aside, [Board agent] bias or an appearance of bias must be shown to have affected the conduct of the election itself, and have impaired the balloting's validity as a measure of employee choice.”  (Id., at p. 5;  see George A. Lucas & Sons, supra, 8 ALRB No. 61, at p. 5.)   The standard enunciated in the Coachella Growers decision had been consistently followed by the Board in its later decisions.  (See, e.g., Bruce Church, Inc. (Dec. 13, 1977) 3 ALRB No. 90;  Mike Yurosek & Sons, Inc. (Aug. 4, 1978) 4 ALRB No. 54;  Bertuccio Farms (Nov. 17, 1978) 4 ALRB No. 91.)

Especially in view of the recent decision in George A. Lucas & Sons (Sep. 10, 1982) 8 ALRB No. 61, discussed in some detail hereafter, we are uncertain whether the Board ever intended its Coachella Growers standard to preclude an investigatory hearing simply because of the absence of declarations showing that specified employees were actually influenced by the alleged Board agent misconduct to refrain from voting or to vote for a particular party or demonstrating that the outcome of the election would, in fact, have been different absent the misconduct.   As has been observed frequently in the decisions of both the NLRB and the ALRB, actual interference with employee rights is frequently difficult if not impossible to prove.   Moreover, the objecting party has only five days from the election to ascertain the facts, assemble its evidence, prepare its petitions and supporting declarations and file them with the Board.

Nevertheless, that appears to be the standard to which petitioner in this case was held.   The reasons given by the executive secretary in the order of partial dismissal are set forth ante at footnote 5.   Those reasons were quoted with approval by the Board in its decision and order reimposing the make-whole remedy after remand from this court.   And those same reasons are expressly adopted and reasserted in the Board's supplemental reply brief filed in this court October 7, 1980.¹¹  They clearly imply petitioner was required to set forth evidence that on account of the asserted misconduct specified employees voted differently than they otherwise would have or refrained from voting or that the outcome of the election would in fact have been different but for the misconduct.   Thus, it appears the Board misapplied its own standard, at least in light of its Lucas decision.

In Lucas, decided September 10, 1982, the ALRB discussed the federal standard applied to Board agent misconduct and concluded it is not “ ‘․ a per se or strict neutrality rule concerning board agent misconduct, but also considers whether the objectionable conduct tended to affect the outcome of the election.”  (8 ALRB No. 61 at p. 7;  emphasis added.)   The Board then reviewed and reinterpreted its previous decisions as being consistent with a standard requiring only a showing that the Board agent misconduct was such as would “tend to affect the employees' free choice.”  (8 ALRB No. 61 at pp. 5–7, passim.)   Obviously, there is a substantial difference between having to make a showing that the misconduct actually affected the electors and/or the outcome of the election and having to show that the misconduct would “tend to affect the employees' free choice.”   The latter is strongly suggestive of a standard seemingly approved in Norton where in holding an objection based on a parties' alleged misconduct insufficient to warrant a hearing, the Supreme Court relied on the absence of evidence “suggesting the activity had a potential for interfering with the employees' free choice.”  (26 Cal.3d at p. 22, 160 Cal.Rptr. 710, 603 P.2d 1306;  emphasis added.)

 Judged by the standard of whether the asserted Board agent misconduct was such as would “tend to affect the employees' free choice,” it is apparent that petitioner's objections and the facts averred in its supporting declarations made out a sufficient case to warrant an investigatory hearing, and it must be concluded that the dismissal of petitioner's objections based on Board agent misconduct without investigation or hearing constituted an abuse of administrative discretion.

Many of the employees eligible to vote resided in Mexico (viz., the Calexico voting location and hours for voting), spoke and understood English poorly, if at all (viz., the interpreter), and were undoubtedly unsophisticated in respect to the functioning and different levels of government in the United States.   These employees, working in the United States by the grace of a governmental agency, would be especially susceptible to influence from any indication the governmental agency charged with conducting the election was in favor of one side or the other.   Given the tremendous potential for influence which partisanship or the appearance of partisanship on the part of the Board would have in any case, there can be no question but that if the facts averred by petitioner gave rise to a reasonable inference of Board agent bias or appearance of Board agent bias in this case, it could reasonably be inferred that that bias or appearance of bias would “tend to affect the employees' free choice.”   The crucial question then is whether petitioner's objections and supporting declarations set forth facts sufficient to give rise to a reasonable inference of bias or appearance of bias on the part of the Board agent.

In essence petitioner's averments were that at the scheduled pre-election conference two days before the election was to be held, the Board agent in charge of conducting the election gave the assembled workers the impression the Board supported the UFW by delaying the scheduled start of the meeting one and one-half hours after the announced starting time to accommodate the arrival of UFW representatives;  utilizing one of the principal UFW organizers as interpreter even though other interpreters were available;  and ruling invariably in favor of the suggestions made by UFW organizers, arbitrarily and without regard to the merit of the suggestions, in some cases changing his ruling to coincide with UFW preferences after having initially ruled otherwise, as to each question concerning the time and location for balloting, the number of observers, and all other arrangements for the election.

 Considered separately, perhaps, as the executive secretary and the Board did, such actions on the part of a Board agent might not be sufficient to give rise to a reasonable inference of bias or appearance of bias, although one is hard pressed to think of any reasonable justification for a Board agent to utilize one of the principal union organizers as an interpreter for assembled workers in hotly contested proceedings such as these.   However, considered together, as they must be, the conduct of the board agent, if it occurred as set forth in petitioner's objections and supporting declarations, could reasonably have given the impression, correctly or incorrectly, that the Board agent and the union organizers were in collaboration and that the Board agent was in favor of the union and was attempting to aid the union in the election by acceding to its suggestions whether they were meritorious or not.   It is no answer to say that a Board agent in charge of an election has the authority to fix the locations and times for balloting and make other decisions concerning the election arrangement.   A Board agent may not exercise his or her authority arbitrarily or capriciously nor for the purpose of giving one party or the other an advantage in the election.¹²  Nor should a Board agent conduct himself or herself in such a manner as to give assembled employees the impression that the Board agent, and therefore the Board, favors one party or the other in the election.

 The fact that the resulting balloting was not close is not dispositive.   A lopsided tally for one party may as well be evidence that bias or the appearance of bias had its effect as that no bias or appearance of bias existed, especially when of 355 eligible voters only 168 voted.

 Whether or not the asserted Board agent misconduct actually occurred as asserted or whether or not Board agent bias existed or the appearance of bias was given neither we nor the Board can know because no investigatory hearing was held to determine those facts.   Board's assertion that the proper scope of review in this proceeding is the substantial evidence standard is inaccurate.   No evidentiary hearing was granted.   In determining whether a prima facie case has been stated by election objections, the facts stated in the objections and supporting declarations are taken as true.  (Regulation 20365, subd. (c);  J.R. Norton Co., supra, 26 Cal.3d at p. 20, 160 Cal.Rptr. 710, 603 P.2d 1306.)   While it implicates questions committed to the Board's discretion, ultimately, “[t]he determination ․ of whether substantial and material factual issues have been raised so as to necessitate a hearing is a question of law and ultimately a question for the courts.”  (N.L.R.B. v. Bata Shoe Company (4th Cir.1967) 377 F.2d 821, 826;  accord, e.g., Vitek Electronics, Inc. v. N.L.R.B. (3d Cir.1981) 653 F.2d 785, 791;  N.L.R.B. v. Claxton Mfg. Co., Inc. (5th Cir.1980) 613 F.2d 1364, 1365;  Methodist Home v. N.L.R.B. (4th Cir.1979) 596 F.2d 1173, 1179;  N.L.R.B. v. Skelly Oil Co. (Kansas City, Mo., Skelgas D.M.B.) (8th Cir.1973) 473 F.2d 1079, 1083, fn. 5;  Luminator Division of Gulton Industries, Inc. v. N.L.R.B. (5th Cir.1972) 469 F.2d 1371, 1374.)

We conclude that petitioner's objections based on Board agent misconduct were sufficient to require an investigatory hearing.

Disposition

The decision of the Board determining that petitioner committed unfair labor practices in refusing to bargain and the order based thereon are annulled.   The case is remanded to the Board with directions to vacate its order certifying the election for the purpose of conducting an investigatory hearing on petitioner's election objections based on Board agent misconduct.

FOOTNOTES

1.   Labor Code section 1153, subdivisions (a) and (e) read:“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.”

2.   Section 1156.3 reads in relevant part:  “(c) Within five days after an election, any person may file with the board a signed petition ․ 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.”

3.   Regulation 20365 provides in pertinent part:  “(a) Time for filing.   Within five days after an election, any person may, pursuant to Labor Code Section 1156.3(c), file with the Board a signed petition asserting that allegations made in the election petition filed pursuant to Labor Code Section 1156.3(a) were incorrect, or asserting that the Board or regional director improperly determined the geographical scope of the bargaining unit, or objecting to the conduct of the election or conduct affecting the results of the election․”“․“(c) ․  [¶] (2) A party objecting to an election on the grounds that the election was not conducted properly, or that misconduct occurred affecting the results of the election shall attach to the original and each copy of the petition a declaration or declarations setting forth facts which, if uncontroverted or unexplained, would constitute sufficient grounds for the Board to refuse to certify the election.“․“(d) Disposition of objections petitions.   The executive secretary shall dismiss any objections petition or any portion of such petition which does not satisfy the requirements of subsections (a), (b), and (c).   Such action of the executive secretary may be reviewed by the Board pursuant to Section 20393.“(e) With respect to any portion of the petition not dismissed pursuant to subsection (d) above, the executive secretary or the investigative hearing examiner appointed by the executive secretary to handle the case may:“(1) Direct any party to submit evidence through declarations or documents;“(2) Order the inspection of documents by Board agents or by the parties;“(3) Direct any party to submit an offer of proof;“(4) Obtain declarations from Board agents or other persons;“(5) Conduct investigatory conferences with the parties for the purpose of exploring and resolving factual or legal issues;“(6) Dismiss any portion of the petition which, after investigation and on the basis of applicable precedent, is determined not to be a basis for setting the election aside;“(7) Recommend to the Board that an election be set aside if, after investigation, it appears on the basis of applicable precedent it would be appropriate to do so, and there are no material factual issues in dispute․“(8) Recommend novel legal issues to the Board for consideration and decision․“(f) An order of the executive secretary dismissing portions of the petition after investigation shall be in writing accompanied by a statement of reasons, shall be served on all parties pursuant to Section 20400, and shall be subject to Board review pursuant to Section 20393.“(g) The executive secretary shall direct an investigatory hearing pursuant to Section 20370 if it appears that there are substantial and material factual issues in dispute․”(The quoted language is derived from regulation 20365 as revised November 14, 1981.   This regulation was apparently originally promulgated in 1976 and re-promulgated without substantive change so far as this case is concerned several times thereafter.)

4.   Subdivision (b) of section 1142 provides in pertinent part:  “The board may delegate ․ such powers as it deems appropriate ․ to certify the results of such election, and to investigate, conduct hearings and make determinations relating to unfair labor practices.   The board may review any action taken pursuant to the authority delegated under this section upon a request for a review of such action filed with the board by an interested party.   Any such review made by the board shall not, unless specifically ordered by the board, operate as a stay of any action taken․”

5.   The order of partial dismissal dated May 11, 1977, reads in pertinent part:“1. The objection that the Board agent acted in a biased manner at the pre-election conference is dismissed on the grounds that employer has failed to present evidence of bias.   A Board agent has discretion to set the time and place of an election, Melco Vineyards, 2 ALRB No. 14, and the mere setting of an election over specific opposition of the employer as to time and place is not evidence of bias.“2. The objections to the use of union interpreters and to the number of observers are dismissed on the grounds that bias or the appearance of bias does not constitute grounds for setting aside an election unless it is shown to have affected the conduct of the election itself and to have impaired the balloting's validity as a measure of employee choice.   There is no showing that either the use of an interpreter or the setting of the number of observers in accordance with petitioner's desires impaired the validity of the ballot as a measure of employee choice.“3. The objection that the election site itself had an adverse influence on employee choice is dismissed on the grounds that employer has not provided any evidence that weather, lighting or the site itself caused any employee not to vote or to be prevented from exercising his free choice.  NLRB v. Wolverine World Wide, 477 F.2d 969 (6th Cir.) 83 LRRM 2309 (1973).“4. The objection that the hours of balloting put the employer at a disadvantage with the union is dismissed on the grounds that there is no evidence that the hours of balloting intimidated or disenfranchised any voter.   Ralph Samsel Co., 2 ALRB No. 10.“PLEASE TAKE FURTHER NOTICE that employer's objections that the UFW committed flagrant and frequent violations of the access rule shall be set for hearing at a time and place which shall be the subject of further notice.   Evidence at such hearing shall be limited to:“1. Whether the UFW violated the access rule and whether such violations, if any, affected the outcome of the election.”

6.   Subdivision (a) of section 20393 of title 8 of the Administrative Code then provided in pertinent part:  “․ dismissal by the executive secretary of a petition filed pursuant to Labor Code Section 1156.3(c), either in its entirety or in part, may be reviewed by the Board pursuant to Labor Code Section 1142(b), upon a written request for review filed by the party whose petition was dismissed.   The request for review shall be filed with the Board within five days of service of the dismissal upon the party making the request.   Such a request may be timely filed by deposit of the request and supporting documents in registered mail properly addressed to the Board and postmarked within the 5 day filing period.”  (This regulation has since been revised but its content is substantially unchanged.)

7.   Our order read in pertinent part:  “When the amended order has been entered, it and the record of additional proceedings, if any, taken in arriving at it, shall be certified to this court as a supplement to and shall become a part of the record on review.   No new petition for review need be filed.”

8.   Respondents correctly point out that on July 27, 1977, after petitioner had filed its request for Board review of the dismissal of three of its four objections without investigation or hearing, the Court of Appeal for the Fifth Appellate District decided Radovich v. Agricultural Labor Relations Bd., 72 Cal.App.3d 36, 140 Cal.Rptr. 24 in which the court concluded:  “Labor Code section 1156.3 [see fn. 2, ante ] is not absolute.”  (72 Cal.App.3d at p. 45, 140 Cal.Rptr. 24.)   However, the Radovich court did not pass on the question whether or not a hearing was required where the supporting factual declarations were not deficient (72 Cal.App.3d at p. 46, fn. 6, 140 Cal.Rptr. 24) nor the standard for judging the sufficiency of objections based on alleged Board agent misconduct.   Moreover, the Radovich decision was not binding on the California Supreme Court, nor for that matter on this court except insofar as it might be persuasive.

9.   As the UFW explains in one of its supplemental briefs, the executive secretary issued his order of partial dismissal on May 13, 1977, a Friday.   It was received by petitioner on or about May 16.   The five-day period in which to request review by the Board under subdivision (a) of regulation 20393 (see fn. 6, ante ) as modified by subdivision (a) of regulation 20480, which excludes Sundays and legal holidays when a prescribed time period is less than seven days, expired May 23, 1977.   Had petitioner mailed its request for review on that date it would have been timely.   However, although it was dated May 21, petitioner's request for review was not mailed until May 24, 1977, so it was mailed one day late.

10.   Paragraph (6) of subdivision (e) of the same regulation authorizes the executive secretary to dismiss any objection “which, after investigation and on the basis of applicable precedent, is determined not to be a basis for setting the election aside.”  (Emphasis added.)   In its original petition for review, Arakelian stressed, apparently in reliance on this portion of the regulation, the secretary's failure to investigate its objections based on alleged Board agent misconduct.   Although the difference in language in the two subdivisions would appear to permit of some argument to the contrary, in its supplemental briefs petitioner treats the duty to investigate as coextensive with the obligation to conduct a hearing, as the court in Norton appears to have done.  (See J.R. Norton Co., supra, 26 Cal.3d at p. 16, fn. 8, 160 Cal.Rptr. 710, 603 P.2d 1306.)

11.   After referring to the reasons stated in the order of partial dismissal, Board's supplemental reply brief states in part:  “Put simply, Arakelian failed, in its election objections and accompanying declarations, to establish in any particular that conduct by ․ ALRB agents prevented eligible voters from expressing their free choice at the ballot box.   It did not make out a prima facie case of misconduct affecting the results of the election ․”  (Emphasis added.)

12.   Labor Code section 1145 provides in pertinent part:  “All employees appointed by the board shall perform their duties in an objective and impartial manner without prejudice toward any party subject to the jurisdiction of the board.”

KAUFMAN, Associate Justice.

MORRIS, P.J., and RICKLES, J., concur.