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

OPINION

Harry Carian Sales (petitioner or Carian) seeks statutory review of a final decision and order of the Agricultural Labor Relations Board (ALRB or Board) determining that Carian committed three unfair labor practices by dismissing José Luis Godinez (Godinez), Agustin Jaime Vargas (Vargas) and Manuel Moya Perez (Moya) and ordering Carian to take specified affirmative action.

FACTS

Carian is an agricultural employer engaged in growing grapes in the Coachella Valley.   In June 1980 Carian was engaged in the harvest of green grapes.

During the harvest Carian operated several labor camps, including Camp No. 3.   Approximately 80 to 100 Carian workers lived in Camp No. 3 during June 1980, including Manuel Moya.   The workers were charged for meals served at camp but no charge was made for the housing itself.   Use of the barracks was limited to people working for Carian.

Godinez and Vargas did not live in Camp No. 3.   However, they came to Camp No. 3 on a daily basis as it was the designated pickup point for the assembly of workers going to the fields each morning.   Godinez and Vargas would visit with friends at the camp after work.

Sometime during June 1980, living conditions at Camp No. 3 deteriorated.   There was no water, rendering the kitchen, bathrooms and showers unusable and for a brief period electricity was also out.   The workers, including Godinez, Vargas and Moya had banded together to protest these conditions to Carian management.   These complaints were not acted on by management.

Vargas and Godinez took the workers' complaint to the Coachella office of the California Rural Legal Assistance (CRLA).   In response to this complaint, two CRLA representatives toured the camp facilities accompanied by Godinez, Vargas, Moya and other Carian employees.   The CRLA representatives took photographs of the kitchen area and the bathrooms.

Carian's supervisors observed the CRLA representatives and Carian employees during this camp inspection and the taking of the pictures.   The CRLA representatives were ordered off the premises by Carian supervisory personnel.

A short time later Godinez, Vargas and Moya were fired by Carian supervisory personnel.

After a three-day hearing, the ALJ ¹ found Carian violated Labor Code section 1153, subdivision (a), by discharging Godinez, Vargas and Moya from their employment as agricultural employees for engaging in protected concerted activities.²

THRESHOLD ISSUES

Carian contends employee protests as to the conditions in the labor camp are not work-related complaints or grievances constituting concerted activity within the meaning of section 1152 and are not protected under the Act.   “Concerted activity is protected if it meets four conditions:  (1) there must be a work-related complaint or grievance;  (2) a specific remedy or result must be sought through such activity;  (3) the concerted activity must further some group interest;  and (4) the activity should not be unlawful or otherwise improper ․  (Shelly & Anderson Furniture Mfg. Co., Inc. v. N.L.R.B. (9th Cir.1974) 497 F.2d 1200, 1202–1203;  Labor Bd. v. Washington Aluminum Co. (1962) 370 U.S. 9, 17, 82 S.Ct. 1099, 1104, 8 L.Ed.2d 298, 304;  Gorman, Basic Text on Labor Law (1976) pp. 296–297.)”  (Nash-DeCamp Co. v. Agricultural Labor Relations Bd. (1983) 146 Cal.App.3d 92, 104, 193 Cal.Rptr. 910.)

 Carian concedes the conduct here meets all of the criteria of concerted activity except “(1) there must be a work-related complaint or grievance.”   Carian contends:  because it does not require employees to live in the camp as a condition of employment, its relationship with the occupants of the labor camp was that of landlord-tenant;  the evidence failed to show all persons living in the labor camp were employed by Carian;  some of the alleged discriminatees did not live in the camp;  and the maintenance of the labor camps was not related to the working conditions of the employees.   None of the factors cited by Carian are relevant to a determination that the labor camp was work-related.   While it is true Carian had no duty to provide employees with free lodging, it is in Carian's best interests that they do so.   Most of Carian's workers were migrant with no place to live while harvesting Carian's crops.   Carian provided the labor camps in order to maintain a steady supply of workers to harvest its crops.   Carian's labor camps, in addition to providing housing, served as the company's daily gathering point and dispatch center for field workers.   Workers, whether camp residents or not, would go to the camp and from there be sent to the fields.   Carian, having elected to provide housing in furtherance of its business interests, transposed the maintenance of the labor camps into a work-related activity.

Carian's contention the activities concerning the improvement of the living conditions in the labor camp is not work-related is without merit.

Carian next contends the Board's finding that Carian committed unfair labor practices by discharging certain employees is not supported by substantial evidence.   The Board contends the failure to fully present to this court all record evidence both supporting and detracting from the fact finder's determinations waived the substantial evidence objection.   This issue of waiver was previously presented to this court in the form of a motion to dismiss which was denied.   This court's ruling on the motion to dismiss was further challenged by a writ of mandate which was denied by the Supreme Court.   The waiver issue has been asserted, considered, and decided by writ of mandate.   We proceed to the merits and examine whether the Board's finding that Carian committed unfair labor practices was supported by substantial evidence.

DISCHARGE OF GODINEZ, VARGAS AND MOYA

Godinez

The fact that Godinez was discharged is not disputed.   Carian's foreman José Castro testified he discharged Godinez because Godinez pulled a knife on him after Castro had chastized Godinez for misbehaving in the labor camp.   Castro's testimony Godinez was misbehaving in the labor camp was not corroborated.   Godinez testified he was fired because he had taken the CRLA people to camp and he had been causing a lot of trouble.   He further testified he (Godinez) was playing with the knife under a tree when José Castro drove up;  that the knife was on the ground while José Castro was present and he did not threaten him with the knife.

The ALJ discussed the conflicting testimony at great length and credited the testimony of Godinez that he was fired because of protected activity and not as a result of misconduct.

Vargas

José Castro testified that Vargas was not fired.   According to Castro, when Godinez pulled a knife and Castro discharged him, Vargas said he wanted his check.   Vargas testified he did not quit, but was fired.   Vargas testified inconsistently that he was fired by José Castro when the others were fired (Godinez and Moya) and that he was fired by Erasmo Castro a short time after the CRLA incident.   The other workers tend to corroborate Vargas' testimony that he was fired and did not quit.   In any event, the ALJ resolved the conflicts, and the inconsistencies and found Vargas was fired and did not quit.   Vargas' testimony is not totally incredible or inherently improbable.

Moya

Moya testified he was fired the same day the others (Godinez and Vargas) were fired.   Moya's testimony did not indicate he was told in exact terms he was being fired.   He testified he was told by José Castro he was giving him his check because he was causing lots of problems.   Moya construed that to mean he was being fired for activities relating to camp conditions.   Moya's testimony was contradicted by the testimony of José Castro.   Here, as in the other two cases, the ALJ resolved the conflicts and the inconsistencies and found that Moya was fired for engaging in protected activities.

 The testimony of Godinez, Vargas and Moya constitutes substantial evidence they were fired because of protected activity.   Their testimony, though inconsistent at times and in sharp conflict with other testimony, does not quite rise to the level of being incredible or inherently improbable.   Reviewing courts give special weight to the administrative law judge's determinations concerning the credibility of witnesses when conflicting testimony is presented at a hearing.  (N.L.R.B. v. Pacific Erectors, Inc. (9th Cir.1983) 718 F.2d 1459, 1462.)   We are required to accept the ALJ's and Board's credibility resolutions and any derivative findings unless they have chosen to credit testimony which is incredible or inherently improbable.  (See Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 20, 173 Cal.Rptr. 856.)   The Board's and the ALJ's credibility resolutions and derivative findings establish that Godinez, Vargas and Moya were fired because they complained about and reported camp conditions to the CRLA.   These firings, under the circumstances, provide substantial evidence to support a finding that Carian violated section 1153, subdivision (a), of the Act.

REMEDIAL ORDERS

 (a) Mailing Provision

The Board asserts Carian should not be allowed to challenge the mailing provision of the Board's remedial order because Carian failed to exhaust its administrative remedies before requesting relief from this court.   The ALJ recommended Carian be required to mail notice to employees during the payroll periods from May 1980 to August 1980.   Carian did not oppose the mailing requirement.   The Board, however, rejected the ALJ's proposed mailing requirements and substituted therefor the requirement that Carian mail notice to all employees employed by Carian from June 15, 1980, to the date on which the notice is mailed.   Carian challenges the Board's expansion of the mailing of notice requirements from four months to approximately four years.

The Board contends Carian failed to exhaust its administrative remedies by neglecting to bring the mailing issue to the attention of the Board by motion for reconsideration.   The ALRA permits the Board to modify or set aside its decisions under section 1160.3 of the Labor Code.   The Board has adopted a regulation allowing the parties to file a motion for reconsideration within 10 days after the service of the Board's decision and order.  (Cal.Admin.Code, tit. 8, § 20286, subd. (c).)  In its entirety, the regulation reads:  “A party to an unfair labor practice proceeding before the Board may, because of extraordinary circumstances, move for reconsideration or reopening of the record after issuance of the Board's final decision and order in the case.   Such motions shall be in writing and state with particularity the grounds for reconsideration or reopening.   Any motion pursuant to this section shall be filed within 10 days after the service of the Board's final decision and order.   A motion filed under this section shall not operate to stay the decision and order of the Board.”

 In this instance, petitioner failed to file a reconsideration motion, but rather proceeded directly to this court.³  The California Supreme Court has indeed recognized that a provision for a rehearing before an administrative board is “unquestionably” a remedy which must be exhausted before resorting to the courts.  (Alexander v. State Personnel Bd. (1943) 22 Cal.2d 198, 200, 137 P.2d 433.)   In consulting federal precedent, we find the NLRB has adopted a similar regulation, 29 C.F.R. 102.48, subdivision (d)(1), providing:  “A party to a proceeding before the Board may, because of extraordinary circumstances, move for reconsideration, rehearing, or reopening of the record after the Board decision or order.”   The federal circuit courts and the Supreme Court have had occasion to interpret the effect of this similar federal regulation.  “The sua sponte action of the Board in ordering remedies that were not argued before it has been held to be ‘exactly the kind of extraordinary circumstances for which the option to move for rehearing or reconsideration is provided.’  [Citation.]”  (N.L.R.B. v. Sambo's Restaurant, Inc. (9th Cir.1981) 641 F.2d 794, 795–796.)   The failure to request review of the Board's decision by motion for reconsideration has long been considered by federal authorities as a failure to exhaust administrative remedies preventing consideration of the question by the courts.  (Woelke & Romero Framing, Inc. v. N.L.R.B. (1982) 456 U.S. 645, 102 S.Ct. 2071, 2083, 72 L.Ed.2d 398;  N.L.R.B. v. Sambo's Restaurant, Inc., supra, 641 F.2d 794, 796.) ⁴

 A fair reading of the Board's regulation (Cal.Admin.Code, tit. 8, § 20286, subd. (c)) and section 1160.8 ⁵ seems to put an aggrieved party in a Catch-22.   In one sense, the regulation calling for a motion for reconsideration, treats the issue as still pending and not final.   In another sense, however, because the reconsideration motion does not toll the 30-day appeal provision (Jackson & Perkins Co. v. Agricultural Labor Relations Bd. (1978) 77 Cal.App.3d 830, 834, 144 Cal.Rptr. 166;  see also United Farm Workers v. Agricultural Labor Relations Bd. (1977) 74 Cal.App.3d 347, 349–350, 141 Cal.Rptr. 437), the Board's decision appears final.   The Board's regulation fails to prescribe the procedures for the reconsideration motion.   In fact, the regulation does not require any decision by the Board or even that the Board consider the petition.   Neither is there any time limit set within which the Board must act.   Hence, it appears the Board could hold the petition for 30 days, then deny it and effectively preclude any appellate court review.⁶

In the recent California Supreme Court case of Nish Noroian Farms v. Agricultural Labor Relations Bd. (1984) 35 Cal.3d 726, 201 Cal.Rptr. 1, 677 P.2d 1170, the court in dicta termed the interaction between the Board's reconsideration regulation and section 1160.8, “a trap for the unwary.”  (At pp. 742–743, fn. 7, 201 Cal.Rptr. 1, fn. 7, 677 P.2d 1170, fn. 7.)

The Nish Noroian court states “[i]f the Board has not acted on a motion for reconsideration during the 30-day period for petitions for review, it appears that the aggrieved party must file a protective petition.   [Citation.]  [¶] Thereafter, the process is fairly logical.   If the Board still has not acted by the time the administrative record is transmitted to the Court of Appeal, the motion for reconsideration is denied by operation of law, and the Court of Appeal may proceed on that assumption.”  (Id.;  emphasis supplied.)

The Nish Noroian court did not need to reach the issue presented by this interaction.   The petitioner there argued the Board overstepped its bounds of authority on a particular matter.   The court fairly answered this contention and then by footnote indicated the petitioner could have raised this in a motion for reconsideration.   Hence, the court did not view that case under an exhaustion of remedies analysis because the petitioner was afforded the right to an appellate review.

In the instant case, should we find Carian failed to exhaust its administrative remedies, it would be wholly precluded from any appellate review.   The Supreme Court accorded the Nish Noroian petitioner the right to an appellate review on the merits and we would be remiss not to do so with the petitioner in this case.

 The Nish Noroian court does supply that element which makes the reconsideration regulation a fair one in the exhaustion of remedies sense.   However, Carian obviously did not have the luxury of this interpretation.   In order to avoid a procedural due process violation, we find Nish Noroian applies in a prospective manner—i.e., only to situations where the Board's order was released after this case was published.   In this instance, the doctrine of exhaustion of administrative remedies will not apply to bar petitioner from appellate review.

 Turning to a review of the substantive propriety of the notice-mailing requirement imposed by the Board, we conclude that it is patently excessive in duration and that furthermore, whether or not intended to be punitive, it penalizes petitioner for exercising its right to seek judicial review under section 1160.8.   The provision must therefore be annulled.

As formulated by the Board, the notice-mailing provision would require petitioner to mail copies of a notice admitting its wrong-doing and stating that it will reinstate the various employees found by the Board to have been improperly discharged to all agricultural employees employed at any time during the period from June 15, 1980, “to the date on which said Notice is mailed.”   Because petitioner sought judicial review of the Board's determinations that these various employees were wrongfully discharged and this court issued a writ of review, it could not be expected that petitioner would mail such a notice to its employees before judicial review was completed.   Thus, to comply with the order at this time, petitioner would have to mail copies of the notice to all its agricultural employees for almost four years past.   Should a hearing in this matter be granted by the California Supreme Court, the final decision on appeal might be delayed for yet another one to two years.   The record does not justify the requirement for mailing copies of the notice in all appropriate languages to all agricultural employees employed during such an extended period of time.

Moreover, whether intended or not, the order has the effect of penalizing an employer for asserting the statutory right to seek judicial review.   An employer who did not seek judicial review could have complied with the order by giving notice shortly after issuance of the Board's decision and it would have been required to give notice only to those employees employed between June 15, 1980, and the date it gave notice.   However, an employer who seeks and is granted judicial review pursuant to section 1160.8 must, because of the nature of the notice, await the outcome of judicial review before mailing the notice and must therefore automatically give notice to the additional employees, employed in the several years required for judicial review.   In view of the temporary and migratory circumstances attending agricultural labor, such a notification requirement would be enormously burdensome.   The Board has articulated no justification for thus penalizing an employer for exercising his statutory right to seek judicial review and in the absence of substantial justification, the chilling effect of the order on the statutory right to seek judicial review is contrary to public policy and the purposes for which the ALRA was enacted.  (Cf. J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 34, 160 Cal.Rptr. 710, 603 P.2d 1306 et seq.)

 (b) Back Pay

 Carian does not dispute the propriety of the Board's reinstatement and back pay orders as a make-whole remedy for employees who are unlawfully discharged.   Carian does dispute the propriety of make-whole remedies in the form of back pay orders covering that period of time hearings before the Board were delayed by the discriminatees' failure to maintain contact with the UFW and the Board.   Carian maintains this lost contact covered a period of approximately 18 months.   The Board correctly points out consequences of any procedural delay, even if inordinate, by the Board should not work to the detriment of wronged employees and to the benefit of wrong-doing employers.  (N.L.R.B. v. J.H. Rutter-Rex Mfg. Co. (1969) 396 U.S. 258, 263–266, 90 S.Ct. 417, 420–421, 24 L.Ed.2d 405;  M.B. Zaninovich, Inc. v. Agricultural Labor Relations Bd. (1981) 114 Cal.App.3d 665, 682–683, 171 Cal.Rptr. 55.)   The Board misses the point.   The delay here allegedly was occasioned by failure of the wronged employees to maintain contact, thereby delaying proceedings.   The worker who has been a victim of an unfair labor practice is required to mitigate his damages and in this context it would be manifestly unfair to allow the employees to increase the employer's liability by failing to maintain contact and preventing his claim from being expeditiously litigated.

We note the employment was for a specific grape harvest and not for continued or permanent employment.   Appropriate adjustments to the make-whole remedy requiring back pay should be made to reflect the temporary nature of the discriminatees' employment.  (See George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 111 Cal.App.3d 258, 278, 168 Cal.Rptr. 537.)

The above discussion is largely academic and premature but is intended for guidance of the Board at the compliance stage.

DISPOSITION

The Board's notice-mailing requirement is annulled.   The case is remanded to the Board for a reformulation of the notice-mailing requirement.   In all other respects, the Board's decision is affirmed.

FOOTNOTES

1.   At the time of the issuance of the ALJ's decision in 9 ALRB No. 13, all ALJs were referred to as Administrative Law Officers.  (See Cal.Admin.Code, tit. 8, § 20125, amended eff. Jan. 30, 1983.)

2.   Unless otherwise specified, all statutory references are to the California Labor Code.Section 1153, subdivision (a), provides:“It shall be an unfair labor practice for an agricultural employer to do any of the following:“(a) To interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in Section 1152․”Section 1152 provides, in pertinent part:“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, ․”

3.   We note parenthetically that nowhere in the Board's regulations is there a definition of “extraordinary circumstances,” which is the prerequisite to filing this motion for reconsideration.

4.   The question of preclusion of judicial review by the failure to exhaust administrative remedies is procedural in nature and therefore federal decisions under the NLRA do not constitute binding precedents under the ALRA.  (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 412–413, 128 Cal.Rptr. 183, 546 P.2d 687.)

5.   Section 1160.8 provides in part:“Any person aggrieved by the final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the court of appeal ․ by filing in such court a written petition requesting that the order of the board be modified or set aside.   Such petition shall be filed with the court within 30 days from the date of the issuance of the board's order․”

6.   Compare the NLRA where there is an open-ended time in which to seek judicial review from final Board orders.  (Jackson & Perkins Co. v. Agricultural Labor Relations Bd., supra, 77 Cal.App.3d 830, 833, fn. 1, 144 Cal.Rptr. 166.)

RICKLES, Associate Justice.

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