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Board Issues Decision in Premiere Raspberries, LLC (2018) 44 ALRB No. 2 (Case No. 2018-MMC-001)

On February 15, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in the above-entitled matter.

Background

On February 2, 2018, the United Farm Workers of America (“UFW”), the certified bargaining representative of the agricultural employees of Premiere Raspberries, LLC (“Premiere”) filed a declaration with the Agricultural Labor Relations Board (“Board”) pursuant to Labor Code section 1164 et seq. and Board Regulation section 20400 requesting that the Board issue an order directing the parties to mandatory mediation and conciliation (“MMC”) of their issues.

Board Decision and Order

The Board dismissed the request for referral to MMC because 90 days have not elapsed since an initial request to bargain following the certification of representative as required under Labor Code section 1164, subdivision (a). The certification was stayed by the Board from October 12, 2017 to December 6, 2017. The UFW’s October 31, 2017 demand to bargain was made while the certification was stayed; therefore, the 90-day period cannot run from that date. Rather, the period would run from the date of an initial request to bargain following the December 6, 2017 effective date of the certification of representative.

The Board also denied Premiere’s request for an order staying all future requests for MMC pending judicial review of the certification based on its technical refusal to bargain with the UFW. Labor Code section 1158 specifically states that the filing of a petition for review in a ULP case to obtain indirect review of a Board certification in a representation proceeding (such as in the case of a technical refusal to bargain) “shall not be grounds for a stay of proceedings conducted pursuant to” the MMC statute.

A PDF of the Board's decision can be found at the following link: Premiere Raspberries, LLC (2018) 44 ALRB No. 2.

Board Issues Decision in Gerawan Farming, Inc. (2018) 44 ALRB No. 1 (Case Nos. 2012-CE-041-VIS, et al.)

On January 22, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in the above-entitled matter.

Background

This case involves two allegations of unfair labor practices (“ULP”s) against Gerawan Farming, Inc. (“Gerawan”). The first is an allegation that Gerawan violated the Agricultural Labor Relations Act (“ALRA” or “Act”) by engaging in bad faith “surface bargaining” during the period from January 2013 to August 2013. The second allegation is that Gerawan violated the ALRA by proposing and insisting on the exclusion of workers employed by Farm Labor Contractors (“FLCs”) from the terms of any collective bargaining reached between Gerawan and the United Farm Workers of America (“UFW”).

ALJ Decision

The Administrative Law Judge (“ALJ”) found that Gerawan engaged in bad faith bargaining with no intention of reaching an agreement for the period commencing January 18, 2013, and continuing through August 2013. He further concluded that Gerawan violated its duty to bargain in good faith by insisting on the exclusion of FLC workers from the core benefits of a collective bargaining agreement. To remedy the above violations, the ALJ ordered standard notice, posting, reading and mailing remedies, and he ordered bargaining makewhole for the period January 18, 2013 to June 6, 2013.

Board Decision and Order

The Board affirmed the ALJ’s factual findings and legal conclusions consistent with its own decision. The Board applied the “totality of the circumstances” test applicable in surface bargaining cases and determined that Gerawan’s conduct as a whole, both at and away from the bargaining table, demonstrated a violation of the duty to bargain in good faith. The Board agreed with the ALJ that Gerawan’s insistence on removing the FLC workers from the scope of any collective bargaining agreement, and its persistent refusal to bargain over their wages, hours, and terms and conditions of employment, violated the ALRA. The Board also denied Gerawan’s request for a stay of this case pending the appellate court’s review of the Board’s decision in Gerawan Farming, Inc. (2016) 42 ALRB No. 1.

With respect to the remedy, the Board concluded that an award of makewhole was appropriate, but modified the end date of the makewhole period to June 30, 2013. The Board found that Gerawan did not rebut the presumption that an agreement providing for higher employee wages would have been reached in the absence of Gerawan’s unlawful conduct. The Board concluded that Gerawan’s conduct in this case did not further the policies and purposes of the ALRA. In particular, Gerawan’s conduct was destructive of the core right of employees “to negotiate the terms and conditions of their employment” through their bargaining representative. Finally, the Board rejected Gerawan’s argument that an award of makewhole is not appropriate in circumstances where Mandatory Mediation and Conciliation ("MMC") has been invoked.

A PDF of the Board's decision can be found at the following link: Gerawan Farming, Inc. (2018) 44 ALRB No. 1.

ALJ Issues Decision in P & M Vanderpoel Dairy, Case No. 2013-CE-016-VIS

On December 15, 2017, administrative law judge (“ALJ”) Mary Miller Cracraft issued a decision in the above-entitled matter.

Background

In P & M Vanderpoel Dairy (2014) 40 ALRB No. 8, the Board found that P & M Vanderpoel Dairy (Respondent) discriminatorily discharged Charging Party Jose Noel Castellon Martinez (Martinez) and other employees in violation of section 1152 of the Act. The Board ordered Respondent to reinstate the employees, including Martinez, and make them whole for all wages and other economic losses suffered as a result of the unlawful discharges. The parties were able to resolve all backpay issues except those involving Martinez. This supplemental proceeding resolves Martinez’ backpay.

ALJ Decision

The Administrative Law Judge (ALJ) found that Martinez was entitled to backpay as set forth in the backpay specification. The ALJ found that the formulation for backpay set forth in the specification was reasonable and not arbitrary. The ALJ further found that Martinez did not engage in willful loss of earnings. The following arguments were rejected:

  • that Martinez was obligated to remain in the dairy industry where he might have earned higher interim earnings rather than working in landscaping and field work,

  • that he removed himself from the labor and/or dairy market by refusing to apply for night shift work, and

  • that his interim earnings were disproportionate to those of other discriminatees and, thus, Martinez net backpay should be reduced to an average of the other discriminatees’ net backpay.

A PDF of the ALJ's decision can be found at the following link: P & M Vanderpoel Dairy, Case No. 2013-CE-016-VIS.

ALJ Issues Decision in United Farm Workers (Lopez), Case No. 2015-CL-006-VIS

On December 11, 2017, administrative law judge (“ALJ”) Mark R. Soble issued a decision involving an alleged unfair labor practice by the United Farm Workers of America (“UFW”) on September 9, 2015.

On September 9, 2015, the Agricultural Labor Relations Board ("Board") held a public meeting at which interested persons could testify about a Board proposal to allow its own staff to visit agricultural worksites in order to educate farmworkers about their rights under the Agricultural Labor Relations Act. The public meeting was held in a private Fresno hotel conference room. Among the persons seeking entry to the meeting were red-shirted pro-UFW workers and blue-shirted anti-UFW Gerawan farm workers. However, prior to the meeting UFW employee Nancy Oropeza told or misled private hotel security into believing that she was the event organizer. Oropeza directed or misled the private hotel security into excluding the blue-shirted anti-UFW workers for a period of approximately ten minutes. During that ten minute exclusion, security permitted the attorney for the anti-UFW workers to address the matter with ALRB staff. ALRB staff then immediately directed hotel security to allow all workers to enter the meeting and ALRB staff also informed the excluded workers in Spanish of their right to attend and speak at the meeting. The temporarily excluded workers were able to gain entry to the meeting room before the meeting formally started.

In a thirty-six page decision, the ALJ found that:

  1. The blue-shirted Gerawan workers who sought to attend and speak at the September 9, 2015 Board meeting because of their desire to see decertification votes counted were engaged in protected, concerted activity, notwithstanding that the decertification election issue was not scheduled on the Board’s agenda.

  2. The blue-shirted workers who sought to attend and speak at the September 9, 2015 Board meeting to address the Board’s staff access proposal were engaged in protected, concerted activity.

  3. By their employee Nancy Oropeza directing or misleading hotel security to exclude the blue-shirted workers, the UFW committed an unfair labor practice by restraining the protected, concerted activity of the blue-shirted workers.

  4. This meeting occurred just eight days before the ALJ decision on the Gerawan decertification election objections, and, at that juncture, there was intense interest in all aspects of the labor relations dynamic. The anti-UFW workers told many of their co-workers about being temporarily excluded from the ALRB meeting and it reasonably follows the story was thereafter extensively repeated and passed along.

As a result of the findings, the ALJ found that the UFW committed an unfair labor practice in violation of Government Code section 1154. The ALJ ordered the mailing and reading of a notice to the affected Gerawan crews, posting of the notice at Gerawan and UFW offices, and for UFW coordinators, organizers and their immediate supervisors located in the San Joaquin Valley to attend training administered by the Visalia ALRB Regional Office.

A PDF of the ALJ's decision can be found at the following link: United Farm Workers (Lopez), Case No. 2015-CL-006-VIS.

Board Issues Decision in Spawn Mate, Inc. dba Mushroom Farms (2017) 43 ALRB No. 3 (Case No. 2016-MMC-01)

On December 8, 2017, the Agricultural Labor Relations Board (Board) issued its decision and order in the above-entitled matter.

Background

On August 17, 2016, the Agricultural Labor Relations Board (“Board”) issued Mushroom Farms, Inc. (2016) 42 ALRB No. 3, referring Spawn Mate, Inc. dba Mushroom Farms (“Mushroom Farms”) and the United Food and Commercial Workers Union, Local 5 (“UFCW”) to mandatory mediation and conciliation (MMC) pursuant to Labor Code section 1164. The parties met with the mediator on several occasions but were unable to agree to all terms of a collective bargaining agreement. The mediator issued a report (“Report”), dated October 24, 2017, fixing the remaining terms of the agreement. (Lab. Code, § 1164, subd. (d).) The Board found that the Report failed to satisfy the requirements of Labor Code section 1164, subdivision (d), because the Report failed to fully resolve all of the issues between the parties. On November 8, 2017, the Board issued Administrative Order 2017-17, remanding the matter to the Mediator with instructions to issue and file a report in compliance with Labor Code section 1164, subdivision (d).  On November 27, 2017, the Board received from the Mediator a “Supplemental Report to the Board” (“Supplemental Report”). Both the UFCW and Mushroom Farms timely filed requests for review of the Mediator’s Report as amended by the Supplemental Report.

Board Decision and Order

Pursuant to Labor Code section 1164.3, subdivision (a), the Board may accept for review those portions of a petition for review for which a prima facie case has been established that a provision of the collective bargaining agreement set forth in the mediator’s report is (1) unrelated to wages, hours or other conditions of employment, (2) based on clearly erroneous finding of material fact, or (3) arbitrary or capricious in light of the mediator’ s findings of fact.

After evaluation of the requests for review, the Board granted review only as to Mushroom Farms’ petition concerning an incentive bonus rate provision, and the Board remanded that issue to the Mediator, in accordance with Labor Code section 1164.3, subdivision (c). In all other respects the Board found that the parties failed to establish a prima facie case that the Mediator’s findings of material fact were clearly erroneous, or that the provisions fixed in his Report and Supplemental Report were arbitrary or capricious in light of his findings of fact.

A PDF of the Board's decision can be found at the following link: Spawn Mate, Inc. dba Mushroom Farms (2017) 43 ALRB No. 3.

Board Issues Decision in Premiere Raspberries, LLC (2017) 43 ALRB No. 2 (Case No. 2017-RC-004-SAL)

On October 10, 2017, the Agricultural Labor Relations Board (Board) issued its decision and order in the above-entitled matter.

On August 2, 2017, The United Farm Workers of America (UFW) filed a petition for certification to represent workers at Premiere Raspberries, LLC (Premiere). An election was held on August 9, 2017, with a tally of UFW, 269; No Union, 236. There were 12 unresolved challenged ballots. Premiere filed four election objections.

Board Decision and Order

The Board dismissed all four objections. Objections 1 and 2 alleged that the UFW and its agents bribed workers with cash and the promise of significant monetary and material benefits if workers voted for the UFW. Premiere also made these allegations in unfair labor practice (ULP) Charge No. 2017-CL-008-SAL. The General Counsel dismissed this charge on September 20, 2017, because she found that there was insufficient evidence to show that the UFW violated the Agricultural Labor Relations Act (Act). Because objections 1 and 2 mirrored the allegations in the dismissed ULP charge, the Board dismissed the objections pursuant to the rule set forth in Mann Packing Company, Inc. (1989) 15 ALRB No. 11. To the extent that a portion of objection 2 arguably fell outside of the conduct alleged in the ULP charge, the Board stated it still would dismiss objection 2 based on Premiere’s failure to provide specific allegations demonstrating that the alleged misconduct interfered with the employees’ free choice to such an extent that it affected the results of the election.

Objections 3 and 4 alleged that the UFW and its agents threatened to call immigration and/or the police if workers did not vote for the UFW, or if workers told anyone about the cash payments or offers of material benefits. The Board dismissed these objections because Premiere failed to provide specific allegations demonstrating that the alleged misconduct interfered with the employees’ free choice to such an extent that it affected the results of the election. In addition, the Board found that the threats alleged in objection 4 were tied to the conduct alleged in ULP Charge No. 2017-CL-008-SAL, which was dismissed for lack of evidence. Therefore, the Board also dismissed objection 4 in accordance with Mann Packing Company, Inc., supra, 15 ALRB No. 11.

A PDF of the Board's decision can be found at the following link: Premiere Raspberries, LLC (2017) 43 ALRB No. 2.

Office of Administrative Law Approves Regulations To Implement Senate Bill 126

On May 2, 2012, the Office of Administrative Law (OAL) approved the regulations adopted by the ALRB on April 18, 2012, implementing Senate Bill 126 and filed the approved regulations with the Secretary of State. OAL also granted the ALRB's request that the regulations go into effect immediately upon filing, therefore the regulations are now in effect. On April 18, 2012, the Agricultural Labor Relations Board (ALRB or Board) adopted regulations to implement Senate Bill 126. That bill made various changes to the Agricultural Labor Relations Act. The Board had previously held a public hearing on January 20, 2012 on the proposed regulations, hearing oral comments and accepting additional written submissions. At its scheduled February 1, 2012 public meeting the Board voted to adopt the regulations with what were considered nonsubstantive changes in response to the public comment received. While the proposed regulations were pending review by the OAL, it came to the Board’s attention that some of the changes arguably could be termed “substantive” and thus may have required a 15-comment period. Accordingly, in order to ensure complete compliance with the letter of the rulemaking requirements of the Administrative Procedure Act (Gov. Code § 11340, et seq.), on March 21, 2012 the Board withdrew the rulemaking file from OAL and rescinded its February 1, 2012 adoption of the proposed regulations. The Board then issued a 15-Day Notice providing the public the opportunity to submit comment on the changes made. No comments were received.

Text of Amendments to Implement SB 126, as Adopted on April 18, 2012

Subsequent Histories Table

The Subsequent Histories Table has been updated to include Board decisions through Volume 38 (2012). The updated pages are page 40 and 41.

See Subsequent Histories Table for updated page.

2012-2015 Case Digest Supplements

The supplements to the ALRB Case Digest for Volume 38 (2012), Volume 39 (2013), Volume 40 (2014) and Volume 41 (2015) can be used in conjunction with the digest issued in January of 1994 and the earlier supplements previously issued.

Case Digest Merged

The Case Digest and its supplements through 2016 have been merged into one document.

See ALRB Case Digest.