TRIPLE PRODUCE CORP v. UNITED FARM WORKERS OF AMERICA AFL CIO (1982)

In yet another chapter in the continuing history of a disputed election in which the United Farm Workers Union (UFW) (real party in interest) was elected as exclusive bargaining representative for employees of petitioner, Triple E Produce Corporation (Triple E) petitions for writ of review of a final order of the Agricultural Labor Relations Board (hereafter ALRB or Board) in case No. 78-CE-10-5 (5 ALRB No. 65 and 6 ALRB No. 46) pursuant to Labor Code section 1160.8.¹ We granted review to consider the various allegations of error and insufficiency of the evidence.²

The genesis of these proceedings was the filing by UFW, on October 17, 1975, with the Board of an election petition pursuant to section 1156.3, seeking certification as the exclusive bargaining agent for employees at two ranches (Paulson Ranch and McCloud Ranch) operated by Triple E in San Joaquin County. The election by secret ballot was conducted by the ALRB on October 24, 1975. Of 420 eligible voters, 244 cast ballots, with the following results: 131-UFW; 46-no union; 66 challenged ballots; and one void ballot.

Triple E timely filed with the Board 24 objections to the election³ supported by sworn declarations of 10 election witnesses. The Sacramento Regional Director summarily dismissed five and set the remaining objections for hearing. A subsequent funding deficiency resulted in the ALRB postponing operations for approximately ten months. When functioning resumed the Board's Executive Secretary issued an order specifying three issues for scheduled hearing and dismissing the remaining objections. The issues set for hearing were:

(1) Whether UFW organizers were present at the Paulson and McCloud Ranches in excessive numbers on election day and at the McCloud Ranch on the day prior to the election;

(2) Whether UFW organizers were present on election day at the Paulson and McCloud Ranches while the employees were working and on the day prior to the election at the McCloud Ranch while employees were working;

(3) Whether, if such violations of the access regulations were found to be true, they affected the results of the election by depriving employees of their free choice of a bargaining representative.

A request for review of the order of partial dismissal was denied and on April 25 and 26, 1977, a hearing on the remaining issues was conducted before the Board's Investigative Hearing Examiner (IHE). On August 23, 1977, the IHE issued her decision recommending dismissal of the remaining objections. This in turn prompted Triple E to file sixty-eight exceptions to the decision. On April 23, 1978, the Board adopted the recommendation, dismissed the remaining objections and certified the UFW as the collective bargaining representative for Triple E's employees.

Throughout all proceedings Triple E has refused to bargain with the UFW, maintaining that the certification is invalid. As a consequence, on July 20, 1978, the union filed charges of unfair labor practices with the ALRB, alleging violations of section 1153, subdivisions (a) and (e).⁴ The Board determined on November 1, 1979, that petitioner was in violation of law and ordered the parties to bargain collectively in good faith and Triple E to reimburse employees for any losses resulting from Triple E's refusal to bargain (the “make-whole” remedy).

Triple E petitioned this court for a writ of review of the November 1, 1979 order of the Board; we remanded the case to the Board for reconsideration in light of J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306. Upon reconsideration the Board issued a “supplemental decision and revised order” rescinding the make-whole order and affirming the certification. Triple E filed the present petition for writ of review, contending: (1) the certification of the UFW in 1978 was invalid and remains invalid; (2) the ALRB improperly issued an order not based on a finding that the employer violated the act; (3) the election should have been set aside in light of testimony that employees were warned by UFW organizers they would lose their jobs if they did not vote for the UFW; (4) the summary dismissal of various objections of prima facie validity deprived petitioner of a fair hearing; (5) in dismissing the objections the Executive Secretary failed to consider the cumulative effect, and (6) petitioner was under no duty to bargain because certification was in violation of petitioner's due process right to a fair hearing.

DISCUSSION

Upon reconsideration of its decision of November 1, 1979, the Board concluded that Triple E's “litigation posture was (heretofore) reasonable” and stated, “In reaching this conclusion, we acknowledge that in our earlier decision we failed to properly consider the allegations that UFW organizers threatened (Triple E's) workers during a period of ‘excess access.’ ”

The Board then reviewed the record before it to consider the merits of the issue of alleged threats.

“The testimony of four witnesses indicates that UFW organizers spoke to employees in their cars as they waited for work to begin on the day before and the day of the election. During these brief conversations about the benefits of unionization, approximately ten employees were told that if they did not vote for the UFW they would be replaced on their jobs by union people. 1 (⁵ ) Although the witnesses consistently reported hearing the same statement, they did not explain their understanding of the statement or the context in which it was made.”

The Board explained that it “has interpreted alleged threats by organizers in past cases. Jack or Marion Radovich (Jan. 20, 1976) 2 ALRB No. 12; Patterson Farms, Inc. (Dec. 1, 1976) 2 ALRB No. 59. In those cases, we found that the organizer's statements were non-threatening descriptions of hiring practices under a union security contract provision. Here, the statements indicate that the employee will be replaced simply for voting against the union. The implication is that the union knows how the workers vote and that the union somehow has power over job tenure or discharge, regardless of whether it wins the election.

“The NLRB has held that organizer statements, which are not accompanied by some indication of the union's ability to carry out the suggested threat, are not likely to affect the employees' free choice of representative. Central Photocolor Co. (1972) 195 NLRB 153 (79 LRRM 1568); Stimson Lumber Co. (1976) 224 NLRB No. 66 (92 LRRM 1452). Given the circumstances herein and the character of the statements made, we find that such statements would be viewed by the employees as campaign propaganda, which the Union could not effectuate. Further, the record shows that only a small number of employees heard the statements. Therefore, we conclude that such statements did not influence or affect the employees in their choice of a bargaining representative. We therefore dismiss the Employer's objections.”

A. Procedural Issues

1. Petitioner contends its due process rights were violated because the ALRB usurped the function of the IHE; that the hearing officer failed to make findings on the employees' understanding of the threats or the context in which the threats were made. (However, she did find that no employee testified a threat prevented him from voting. She concluded that threats of loss of work were reasonably susceptible to the interpretation that the union would seek a security clause if it won the election (citing Patterson Farms Inc., 2 ALRB No. 59 (1976)), and she found no evidence of interference with the voters' freedom of choice. The Board had before it the reporters transcript of the hearing and the exhibits and documents submitted. “The Board is free to draw its own inferences from the evidence available to it.” (Abatti Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 107 Cal.App.3d 317, 165 Cal.Rptr. 887.) We discern no due process violation or other procedural infirmity in the Board's decision on remand.

2. Petitioner next incorrectly asserts the Board acknowledged in its decision on remand that the prior order of certification is invalid. The Board made no such acknowledgment. Rather, it rescinded its make-whole order in light of Norton.⁶

B. Effect of warnings by union organizers that voters would lose their jobs unless they voted for the UFW.

At the hearing Triple E introduced testimony of four employees that during periods of excess access union organizers frightened them and other employees by warning them if they did not vote for the UFW they would be replaced. In its brief the Board explains the IHE “determined that the statements (of job loss) were made in the context of union discussion of a job security clause, and deemed that the statements as such were not improper relying on (pertinent authority)”.

“The Board, on the contrary determined that under controlling NLRB precedent, the statements would be viewed by workers as campaign propaganda which the union could not effectuate.” (Emphasis added.) Upon reviewing the record we find no evidence susceptible to the inference that the statements were actually viewed by workers merely as “propaganda which the union could not effectuate.” However, there is overwhelming evidence that the statements caused many workers to actually fear loss of their jobs if they did not vote for the UFW.

In exercising its discretion the Board must follow controlling precedent of the National Labor Relations Act. (s 1148.) Our function in reviewing a ruling of the Board is to determine if law has been correctly applied and whether findings are supported by substantial evidence on the whole record. (Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 156 Cal.Rptr. 1, 595 P.2d 579.) We find no substantial evidence to support the Board's finding with respect to the effect of the statements. There is no evidence the many persons who heard the statements recognized them as mere propaganda and realized the union had not the means to effect the threats. But there is uncontradicted evidence that many of those who heard the statements were afraid for their job, which raises the question: If the employees understood the threats could not be effectuated, why were many workers fearful of job loss as a result of the statements?

1. Testimony concerning the threats.

Baldo De La Rosa testified that on the morning of the election at the Paulson Ranch “union people” told employees “that if they didn't vote for Chavez they were going to be replaced on the work.” De La Rosa testified that “all the people were afraid .... to lose their jobs ....” they “all talked about the same thing, that they were afraid” and “when the elections came up nobody wanted to vote.”

Rafael Herrera testified that on the day before the election and on the day of the election a UFW person told him “if I didn't want to vote union I was going to be replaced, there was somebody else to take care of my job.” He also testified that on election day companion workers expressed fear of losing their jobs “if they didn't (want) to vote” because they had been warned “that if the union won, it was going to be all union people working, and we would be out of work.”

Arturo Figueroa testified that on the day before the election at the McCloud Ranch he and six members of his family were warned “if they didn't vote for the Union that they would lose their jobs ....”

Manuel Mungia testified that on the day before the election on the McCloud Ranch, while he and other workers sat in his car, UFW people approached and told him “If I didn't vote for them, I was going to be replaced”. He stated the warning made him afraid and was heard by the other workers in his car. Mungia was also approached on the day of the election at the McCloud Ranch and was given the same warning. He indicated he was afraid of the union people only because they could take his job from him.

Respondent contends petitioner failed to meet his burden of proof on the issue of unfairness (National Labor Relations Board v. Mattison Machine Works (1961) 365 U.S. 123, 124, 81 S.Ct. 434, 435, 5 L.Ed.2d 455, 456) and points to the testimony of Eduardo Lopez, an employee at the Paulson Ranch, that he did not know what UFW people were telling workers and did not know why the workers were afraid. Respondent also notes the testimony of Rafael Herrera expressing fear of job loss if the Union lost. This testimony, however, is not inconsistent with or contradictory of evidence of UFW threats. Lack of knowledge that certain conduct is occurring does not comport with the absence of such conduct.

Respondent addresses us to testimony of Estrada and Mungia that certain warnings were only expressions of job security with the union. Again this does not negate statements made to employees that if they cast votes against the union they would lose their jobs. Moreover, in its final order the Board did not adopt the hearing officer's finding that the statements were “merely references to the hiring practices which could exist under a union security clause” but instead found the warnings would be viewed as campaign propaganda, which the union could not effectuate.“⁷

As we have explained, such finding is irreconcilable with the undisputed evidence of widespread intimidation.

In its answer to the petition for writ of review the Board contends the testimony is “unclear as to whether the statements were made by union organizers or employees supporting the union.” This contention is contradicted by the Board's own finding that the statements were made by UFW organizers.

Respondent asserts its finding that the statements “did not reasonably tend to produce a coercive effect or otherwise interfere with the free exercise of employee rights under the (ALRA) .... is a judgment call particularly within the expertise of the Board (to which) reviewing courts should give great deference ....” While it is true we give great deference to Board decisions based on its special expertise,⁸ we do not consider Board findings which are contradicted by undisputed evidence “judgment calls” beyond our scope of review. In applying a four-pronged test utilized by the court in N.L.R.B. v. Bancroft Manufacturing Company, Inc. (5th Cir. 1975) 516 F.2d 436, 443, for evaluating questionable campaign communications, we ask: “(1) whether there has been a material misrepresentation of a material fact; (2) whether the misrepresentation came from a party who was in a position to know the truth or who had special knowledge of the facts; (3) whether the other party had adequate opportunity to reply and correct the misrepresentation; and (4) whether the employees had independent knowledge of the misrepresented facts, so that they could effectively evaluate the campaign propaganda.” On the basis of the record we necessarily answer the first two questions in the affirmative and the last two in the negative.

The misrepresentation was by a party (contra, Central Photocolor Co. (1972) 195 NLRB 153 (cited as authority by the Board, wherein voters were threatened by a third party)) in a position to know better, made both the day before and the day of the election, to people who were actually frightened by the statements.

In G. H. Hess, Inc. (1949) 82 NLRB 463, 465, a union representative told an employee three days before the election, “If you don't vote for the Union the girls will refuse to work with you.” The NLRB found the statement “conveyed a threat of economic reprisal, i.e., that (the employee) would, through efforts of the Union be deprived of her job should she vote against the Union.” The NLRB stated, “We are of the opinion that this statement was reasonably calculated to restrain and coerce (the employee) in the exercise of a free choice of bargaining representative and, as such, exceeded the permissible bounds of Union preelection activities.” Such is this case.

“The question of whether there has been unwarranted interference with free expression of choice does not turn on election results, or the probable election results. Moreover, the impact of the threat is not necessarily limited to (one employee) only, since experience has shown, as demonstrated herein, that statements made during an election campaign are the subject of discussion, repetition and dissemination among the electorate.” (Professional Research, Inc. (1975) 218 NLRB 96. See also, A. Rebello Excavating Contractors (1975) 219 NLRB 329, 330.)

Over the years the NLRB has promulgated the rule that “election conditions must approach as nearly as possible, ideal ‘laboratory’ conditions so as to facilitate expression of ‘the uninhibited desires of the employees.’ In re General Shoe Corp., 77 NLRB 124, 127, 21 LRRM 1337 (1948).” (N.L.R.B. v. Vista Hill Foundation (9th Cir. 1980) 639 F.2d 479, 483.) In Michem, Inc. (1968) 170 NLRB 362, 362-363, the NLRB defined the concept of “ideal laboratory conditions” rejecting a simple blanket prohibition against any last minute conversations between a party and a voter, stating, “this does not mean that any chance, isolated, innocuous comment or inquiry by an employer or union official to a voter will necessarily void the election. We will be guided by the maxim that ‘the law does not concern itself with trifles.’ ” (Cited in N.L.R.B. v. Vista Hill Foundation, supra, 639 F.2d at p. 483; emphasis in original.)

The election conditions in this case do not even remotely approach laboratory conditions; the statements were neither chance, isolated nor innocuous.

The integrity of the election was irreversibly damaged by threats of economic reprisal made by union organizers to employees on and about the day of election. It is fundamental that the inviolability of the free election process be preserved; hence, we are disinclined to set precedent tacitly condoning such campaign tactics. To deem acceptable these activities would invite similar activities in the future by competing unions and employers. Such perversion of the election process inevitably leads to the detriment of the workers and frustrates the express purpose of the Agricultural Labor Relations Act.⁹ Although petitioner raises several other issues, determination is negated by the result we necessarily reach.

We conclude: (1) there was insufficient evidence to support the Board's finding that the threats were merely ineffectual propaganda statements not influencing or affecting employees with respect to the election; (2) misconduct affecting the results of the election occurred; and (3) the Board abused its discretion by dismissing petitioner's objections with respect thereto.

The ALRB is ordered to vacate its orders in 5 ALRB No. 65 (1979) and 6 ALRB 46 (1980) and to sustain Triple E's objections of threats during periods of excess access and finally to decertify the UFW as the exclusive representative on the basis of an invalid election.

FOOTNOTES

1.  Unless otherwise indicated, references are to the Labor Code; specifically, the Agricultural Labor Relations Act codified at sections 1140 et seq. Section 1156.3 sets forth the procedure for election and certification of a union representative.

2.  UFW also filed a petition for writ of review seeking reversal of the Board's order in its “Supplemental Decision and Revised Order” vacating its prior make-whole remedy order. No formal writ was issued on that petition; but the Board's motion for consolidation of the two proceedings was granted. However, UFW subsequently petitioned to withdraw its petition for writ of review, which this court granted. The only issues before us in this proceeding are those tendered by the writ of review of Triple E.

3.  Triple E filed a petition containing the objections pursuant to s 1156.3, subd. (c), which provides in pertinent part: “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. (P) 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. Such hearing may be conducted by an officer or employee of a regional office of the board. He shall make no recommendations with respect thereto. If the board finds, on the record of such hearing, that any of the assertions made in the petition filed pursuant to this subdivision are correct, or that the election was not conducted properly, or misconduct affecting the results of the election occurred, the board may refuse to certify the election. Unless the board determines that there are sufficient grounds to refuse to do so, it shall certify the election.”

4.  Section 1153, subds. (a) and (e) 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.“(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.”

5.  Footnote 1 to the above-quote states: “Although there is evidence that other employees were spoken to in their cars by the organizers, there is no indication that a significant number of Respondent's employees heard the questionable statement.”

6.  In J. R. Norton Co. v. Agricultural Labor Relations Bd. supra, 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306, the court explained that an employer has no avenue to judicial review of certification except by refusing to bargain thereby inviting an unfair labor charge. (Pp. 569-570.)

7.  Of interest is that the Board did not unequivocally find voters actually considered the warnings merely as propaganda. Its use of the word “would” is ambiguous in this context. For example, it could be: “used in auxiliary function to express futurity from a point of view in the past” or “used in auxiliary function to express probability or presumption in past or present time.” (Webster's Third New International Dictionary (1971) page 2638).

8.  “The Board is presumed to have a certain expertise in conducting and evaluating elections; its decisions should be deferred unless it has committed an abuse of discretion.” (Hecla Mining Co. v. NLRB (9th Cir. 1977) 564 F.2d 309, 313.)

9.  “In enacting this legislation the people of the State of California seek to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations. (P) This enactment is intended to bring certainty and a sense of fair play to a presently unstable and potentially volatile condition in the state. The Legislature recognizes that no law in itself resolves social injustice and economic dislocations.” (Stats.1975, Third Ex.Sess., ch. 1, s 1, p. 4013.)

CARR, Associate Justice.

REGAN, Acting P. J., and EVANS, J., concur.