GRANT HARLAN FARMS v. UNITED FARM WORKERS OF AMERICA AFL CIO (1984)

Grant Harlan Farms (Harlan), an agricultural employer within the meaning of the Agricultural Labor Relations Act of 1975 (Lab.Code, § 1140 et seq.), seeks review of a decision of the Agricultural Labor Relations Board (Board) which found that Harlan violated section 1153, subdivisions (a) and (e) of the Labor Code, by its failure and refusal to meet and bargain collectively in good faith with the United Farm Workers of America, AFL-CIO (UFW).   Harlan further contests (1) the Board's finding that he did not act reasonably or in good faith in seeking judicial review of the Board's certification of the UFW as the exclusive bargaining agent for his employees;  and (2) the Board's order imposing the make-whole remedy.   Harlan contends that he acted reasonably in seeking judicial review of the Board's arbitrary method of determining “peak” employment.

Harlan is a sole proprietorship, who for the past eight years has been growing and processing tomatoes and bell peppers on his 200-acre farm.   The tomato season runs from late August through October, and the pepper season from the end of August into December.

On September 22, 1980, the UFW filed a petition with the Board seeking a representative election among Harlan's workers;  that petition alleged, as required by statute,¹ that Harlan's employees in the payroll period immediately prior to the filing of the petition numbered at least 50 percent of the current year's “peak” employment;  Harlan disputed this.   The Board nevertheless conducted the election on September 30, 1980.   The vote was UFW 32, no union 9, challenged ballots 4.

Harlan timely filed a petition to set aside the election on the ground that the election had been conducted at a time when the employer was at less than 50 percent of his peak employment.

Harlan's objection to the election was dismissed by the Board's executive secretary without a hearing ² and the Board, on review, upheld that dismissal.³  Six weeks later the Board certified the UFW as the exclusive bargaining representative of Harlan's employees.   Harlan refused to negotiate in order to judicially test the certification;  the UFW filed charges with the Board alleging an unfair labor practice;⁴  the matter was heard by an administrative law officer, who found that Harlan had challenged the election in bad faith since the Board's computations adequately supported its order upholding dismissal;  and Harlan's exceptions to the administrative law officer's decision were ultimately overruled by the Board, which affirmed his findings and conclusions.⁵

Harlan seeks review of the decision of the Board finding that he had engaged in an unfair labor practice by refusing to negotiate with the UFW.   He contends that the determination of his peak employment for the current year was incorrectly determined, that he was not at 50 percent of peak employment in the period immediately preceding the filing of the petition, and that the certification of the UFW should be set aside.   We agree.

The Determination of “Peak”

In his petition to set aside the election and in subsequent pleadings, Harlan supplied the following payroll figures and presented the following calculations which show the following employment during the 1980 eligibility period:

In response to the UFW's petition for a representation election, Harlan asserted that he had not yet reached peak employment, and he anticipated his maximum number of employees during the week ending October 4, 1980.   In support of that claim, Harlan Farms submitted its records for the week ending October 3, 1979, the period of the previous year that Harlan contends was his peak employment.   These records show the following employment figures:

A. The Body Count Method

Pursuant to the “body count” method approved by the Board in Donley Farms (Donley Farms, Inc. (1978) 4 ALRB No. 66), the Board counts the number of employees in each of the relevant payrolls.   The total number of employees (the labor contractor employees plus the Harlan Farms' crew) as determined from the payroll record of the period immediately preceding the filing of the petition was 55;  the total number employed in the previous year's peak period was 198;  thus, current year was only at 28 percent of previous year's peak.⁶

B. The Averaging Method

Pursuant to the “averaging” method approved by the Board in Saikhon (Mario Saikhon, Inc. (1976) 2 ALRB No. 2), the Board compares the average number of employees working each day during the two relevant payroll periods.   If this method is used to determine peak employment, it is equally apparent that the UFW's petition was untimely.   Without discarding any work days as “nonrepresentative,” the average number of employees during the respective payroll periods was as follows:

Thus, pursuant to the averaging method the period for the current year was slightly less than 30 percent of the previous year's peak.

But when applying this method the Board has approved discarding days which are “unrepresentative.”  (California Lettuce Co. (1979) 5 ALRB No. 24.)   If the zero work days for one labor component are discarded, the average number of employees available is slightly different, but Harlan is still at less than 50 percent of his peak employment during the payroll period immediately preceding the filing of the petition:

Thus, under the averaging method and discarding zero work days, the average for the current year was only 48.4 percent.

C. The Method Utilized Herein

The decision of the executive secretary which dismissed Harlan's petition pursuant to Labor Code section 1156.3, subdivision (c) without hearing, discloses that the executive secretary employed the “averaging” method with “unrepresentative” days discarded as follows:

Note that in this computation the executive secretary has discarded Sunday, September 14, 1980, and Saturday, September 20, 1980, from the Harlan Farms' crew figures “since only a few employees worked on” those dates (i.e., two on Sunday and three on Saturday);  and in addition to excluding these days from the labor contractor crew figures, he has also discarded Monday, September 15, 1980, and Tuesday, September 16, 1980.   Thus he concludes that “[s]ince 47 is more than 50% of 91, the Petition for Certification was filed at a time when the Employer was at least at 50% of its anticipated peak agricultural employment for 1980․”  Only by discarding different unrepresentative days for the labor contractor crew than for the farm crew, can a result in excess of 50 percent be reached, to wit:  51.6 percent.

 To be sure, the Board, in applying the Saikhon method, has established that “nonrepresentative” days in each of the two relevant payroll periods may be disregarded.   But except where the labor force includes employees with different length payroll periods (see Luis A. Scattini & Sons (1976) 2 ALRB No. 43), there is no Board precedent for the method utilized herein, i.e., separately averaging the farm crew and the contractor crew.   Here the farm crew and the contractor crew worked during the same payroll period but the executive secretary, in concluding that the regional director's peak determination was reasonable, utilized a hybrid formula consisting of a mixture of Saikhon, California Lettuce and Scattini.   Where, as here, the employer maintains the same payroll period for all of its employees, the Scattini formula should not be invoked.   Never before has the Board authorized the separate averaging of the two crews under these circumstances, and following its own precedents, the Board should have utilized the averaging method without discarding unrepresentative days ⁷ and without separately averaging the two labor crews.

CONCLUSION

 We conclude that the Board's calculation of peak employment was fixed arbitrarily and without justification and does not allow for maximum participation of all the affected workers in choosing their bargaining representative as required by section 1156.4.   Therefore, Harlan has not engaged in an unfair labor practice in refusing to negotiate with the UFW;  we, accordingly, order the Board to annul its finding to that effect and set aside the certification of the UFW.   In so holding, we do not imply that 50 percent of peak employment for the current year should be determined, as was done here, exclusively by comparison with peak in the previous year, for, as expressed in the companion case of A & D Christopher Ranch v. Agricultural Labor Relations Bd. (Cal.App.1984), 207 Cal.Rptr. 341,^* the Board has a duty to seek additional information and to determine peak based upon a multitude of factors.   We hold only that the Board erred in approving the application of a novel mix of its own previously approved formulas to Harlan's situation.

Let a decree issue setting aside the Board's orders of January 25, 1983, and July 1, 1981;  the matter is remanded to the Board for further proceedings consistent with this opinion.

FOOTNOTES

1.   Under Labor Code section 1156.3, subdivision (a)(1), the petition must allege “that the number of agricultural employees currently employed by the employer named in the petition, as determined from his payroll immediately preceding the filing of the petition, is not less than 50 percent of his peak agricultural employment for the current calendar year.”

2.   The executive secretary found that “․ the Regional Director's peak determination was reasonable in light of the information available at the time of the investigation of the Petition.“․“․  There is no evidence that the Employer provided the Regional Director with any information other than the payroll records for his 1979 peak payroll period.   The employer failed to submit any evidence that the days during which few or no employees worked in either the payroll period immediately preceding the filing of the Petition or the peak payroll period in 1979 were representative and should have been included in the peak calculations.   California Lettuce Co. (March 29, 1979) 5 ALRB No. 24.”

3.   The order of the executive secretary of the Board stated:  “The request for review ․ is hereby DENIED because the Employer's election objection was properly dismissed for the reasons set forth in the Executive Secretary's Order dated March 6, 1981.”

4.   The Board alleged that Harlan had violated Labor Code section 1153, subdivisions (a) and (e) which provide as follows:  “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.   The majority decision stated:  “Given the insubstantial nature of [Grant Harlan's] post election objection, we find that [he] could not have entertained a reasonable belief that the election was conducted in a manner which did not fully protect employees' rights or that misconduct occurred which tended to affect the outcome of the election.”

6.   Since only 45 of the 55 actually voted and only 32 of them voted for the UFW, Harlan correctly contends that only 16 percent of his work force selected the UFW as its exclusive bargaining representative.

7.   Note that even if Saturday and Sunday are excluded as “nonrepresentative” days, the Saikhon formula still does not yield peak:Peak (1979)- 427 + 143-= 81.4 7 Eligibility (1980)- 105 + 60-= 33= 40.5% 5

FOOTNOTE.   Editors Note:  Ordered not officially published by Supreme Court on Jan. 2, 1985.

ANDERSON, Associate Justice.

SCOTT, Acting P.J., and BARRY-DEAL, J., concur. Hearing granted;  BIRD, C.J., did not participate.