Board Issues Decision in Gerawan Farming, Inc. (2018) 44 ALRB No. 11 (Case No. 2013-CE-011-VIS, et al.)

On October 31, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in Gerawan Farming Inc. (2018) 44 ALRB No. 11.

Background

The United Farm Workers of America (the “UFW”) was certified as the representative of the agricultural employees of Gerawan Farming, Inc. (“Gerawan”). An Administrative Law Judge (“ALJ”) found that Gerawan unlawfully failed to respond to four separate UFW requests for information and failed to provide notice and an opportunity to bargain over benefit changes in violation of the Agricultural Labor Relations Act (“ALRA” or “Act”). After the ALJ’s decision issued, the Agricultural Labor Relations Board (“ALRB” or “Board”) certified the results of a decertification election that had occurred in November 2013. As a result, the UFW was decertified.

Board Decision and Order

The Board affirmed the ALJ’s conclusion that Gerawan violated the Act by failing to respond to an information request issued by the UFW prior to the November 2013 election. While Gerawan argued that the request at issue was only part of a much broader request, compliance with which would have been very burdensome, the Board agreed with the ALJ that Gerawan had failed to raise the alleged burden at the time of the request and had failed to negotiate with the union over its response. Rather, Gerawan provided no response whatsoever. However, the Board found that dismissal of the remaining unfair labor practice allegations was required because the conduct at issue took place after the November 2013 decertification election. Although the results of the election were not certified until October 2018, under Nish Noroian Farms (1982) 8 ALRB No. 25, the certification of results “relates back” to the date of the election and no bargaining violation could be found after that date.

A PDF of the Board’s decision can be found at the following link: Gerawan Farming, Inc. (2018) 44 ALRB No. 11.

ALJ Issues Decision in Gerawan Farming, Inc., Case Nos. 2015-CE-023-VIS, et al.

On October 18, 2018, Administrative Law Judge (“ALJ”) Mary Miller Cracraft issued a decision Gerawan Farming, Inc., Case No. 2015-CE-023-VIS, et al. The ALJ found that Respondent violated the Act by promulgating and enforcing a no photography – no video rule and unlawfully discharging an employee pursuant to that rule. The ALJ dismissed an allegation that Respondent failed to provide relevant, necessary information to the UFW because the request post-dated a decertification vote.  A PDF of the ALJ’s decision can be found at the following link: Gerawan Farming, Inc., Case Nos. 2015-CE-023-VIS, et al.

Board Issues Decision in Gerawan Farming, Inc. (2018) 44 ALRB No. 10 (Case No. 2013-RD-003-VIS, et al.)

On September 27, 2018, the Agricultural Labor Relations Board (Board) issued its supplemental decision and order in Gerawan Farming Inc. (2018) 44 ALRB No. 10.

Background

On October 25, 2013, Silvia Lopez (Petitioner) filed a petition to decertify the United Farm Workers of America (UFW) as the bargaining representative of the agricultural employees of Gerawan Farming, Inc. (Gerawan). The Agricultural Labor Relations Board (Board) ordered that an election be held and the ballots cast in the election be impounded. The election was held on November 5, 2013.

Following a hearing on election objections and related unfair labor practice (ULP) allegations, an administrative law judge (ALJ) determined that Gerawan committed multiple unfair labor practices and engaged in other objectionable conduct by providing unlawful assistance to the efforts to decertify the UFW. Due to the pervasive nature of the misconduct found, the ALJ recommended dismissing the decertification petition and setting aside the election. On April 15, 2016, the Board issued a decision upholding the ALJ’s order dismissing the decertification petition and setting aside the election. (Gerawan Farming, Inc. (2016) 42 ALRB No. 1.)

On May 30, 2018, the California Court of Appeal for the Fifth Appellate District issued an opinion reversing certain portions of the Board’s unfair labor practice findings in Gerawan Farming, Inc., supra, 42 ALRB No. 1, and vacating the Board’s order dismissing the decertification petition and setting aside the election. (Gerawan Farming, Inc. v. ALRB (2018) 23 Cal.App.5th 1129.) The appellate court remanded the matter to the Board to open and count the ballots cast in the election and to reconsider the Board decision in light of its opinion.

On September 18, the ballots were opened and counted with the following tally: 197 for the Certified Bargaining Representative (UFW); 1,098 for the “No Union” choice, 660 unresolved challenged ballots; and 18 void ballots.

Board Decision and Order

Under the appellate court’s findings in this matter, Gerawan committed several unlawful acts prior to the November 5, 2013 election. First, Gerawan engaged in direct dealing with its employees by unilaterally implementing two wage increases in March 2013 and distributing flyers to its employees advising that Gerawan had made the decision to grant the wage increases on its own and that it hoped the union would not delay or obstruct the increases. Next, Gerawan provided unlawful assistance to the circulation of the decertification petition: (1) when a crew boss gathered his crew together on one occasion in October 2013 during worktime and allowed the collection of signatures on the petition, and (2) by disparately enforcing its attendance policy and allowing Petitioner Lopez and her daughter extended absences from work to gather signatures for the showing of interest for almost two-and-a-half months. Finally, Gerawan unilaterally implemented a temporary wage increase to grape packing employees on October 25, 2013.

The Board evaluated the record on remand, and found that the unlawful and/or objectionable conduct committed by Gerawan did not interfere with the employees’ free choice to such an extent that it affected the outcome of the election. Therefore, the Board certified that a majority of the valid ballots were cast for “No Union” in the representation election, and that the UFW lost its prior status as the exclusive representative of the employees for the purpose of collective bargaining.

A PDF of the Board’s decision can be found at the following link: Gerawan Farming, Inc. (2018) 44 ALRB No. 10.

Board Issues Decision in Premiere Raspberries, LLC (2018) 44 ALRB No. 9 (Case No. 2018-CE-004-SAL)

On August 29, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in Premiere Raspberries, LLC (2018) 44 ALRB No. 9 (Case No. 2018-CE-004-SAL).

Background

Following a representation petition filed by the United Farm Workers of America (UFW) to represent workers at Premiere Raspberries, LLC (Premiere), the Agricultural Labor Relations Board (ALRB or Board) held an election on August 9, 2017. The ballot count showed that a majority of employees voted in favor of representation by the UFW. Premiere filed four election objections. The Board dismissed all four objections in Premiere Raspberries, LLC (2017) 43 ALRB No. 2. Premiere thereafter requested reconsideration of that decision, which the Board denied in Premiere Raspberries, LLC (2017) ALRB Admin. Order No. 2017-20. After the Board certified the UFW as the exclusive bargaining representative, the UFW requested bargaining with Premiere. Premiere responded that it was engaging in a technical refusal to bargain in order to obtain judicial review of the Board’s Decision in Premiere Raspberries, supra, 43 ALRB No. 2.

The ALRB’s General Counsel issued a complaint alleging that Premiere refused to bargain with the UFW in violation of the Agricultural Labor Relations Act (ALRA or Act). The parties entered into a Stipulation of Facts and agreed to waive their rights to a hearing provided by section 1160.2 of the Act.

Board Decision and Order

The Board found that Premiere had not shown any new evidence or demonstrated “extraordinary circumstances” justifying reconsideration of the earlier representation case. The Board found that Premiere’s admitted refusal to bargain with the UFW was a violation of Labor Code section 1153, subdivisions (e) and (a). The Board ordered bargaining makewhole as a remedy for the violation, finding that while the record contained no evidence that Premiere was seeking judicial review in bad faith, Premiere’s litigation posture was unreasonable.

A PDF of the Board’s decision can be found at the following link: Premiere Raspberries, LLC (2018) 44 ALRB No. 9.

ALJ Issues Decision in Monterey Mushrooms, Inc., Case No. 2016-CE-032-VIS

On August 28, 2018, Administrative Law Judge (“ALJ”) John J. McCarrick issued a decision Monterey Mushrooms, Inc., Case No. 2016-CE-032-VIS .

The ALJ found that Monterey Mushrooms, Inc. (the Employer) violated section 1153(a) of the Agricultural Labor Relations Act (ALRA) by prohibiting its employees from engaging in protected concerted activity protected under section 1152 of the Act. The protected concerted activity involved discussing terms and conditions of employment, including use of new equipment and its effects on employees’ wages.

A PDF of the ALJ’s decision can be found at the following link: Monterey Mushrooms, Inc., Case No. 2016-CE-032-SAL.

ALJ Issues Decision in Gerawan Farming, Inc., Case Nos. 2015-CE-007-VIS, et al.

On August 27, 2018, Administrative Law Judge (“ALJ”) Mary Miller Cracraft issued a decision in Gerawan Farming, Inc., Case Nos. 2015-CE-007-VIS, et al.

The ALJ found that Gerawan Farming, Inc. (the Employer) violated section 1153 (a), (c), and (d) of the Agricultural Labor Relations Act (ALRA) by failing to recall four agricultural employees because of their activity on behalf of the United Farm Workers of America (UFW) and, in one of the cases, because of testimony in a prior ALRB proceeding.

The ALJ employed the shifting burden of proof set forth in Mt. Healthy City School District Board of Education v. Doyle (1977) 429 U.S. 274 as adopted in Wright Line (1980) 251 NLRB 1083, enf’d. (1st Cir. 1981) 662 F.2d 899, cert. denied (1982) 455 U.S. 989. These cases set forth a shifting burden analysis initially requiring that the General Counsel prove by a preponderance of the evidence that a motivating factor in an adverse employment action was union or other protected activity. If the General Counsel satisfies this burden of persuasion, the employer must then demonstrate that the same action would have taken place in the absence of union or protected activity.

Specifically, the ALJ relied on Sandhu Brothers Poultry and Farming (2014) 40 ALRB No. 12, which holds that the General Counsel satisfies the initial burden by showing that the employee was engaged in protected activity, the employer had knowledge of the protected activity, and the employer bore animus toward the employee’s protected activity. The ALJ did not rely on prior ALRB cases which enunciate the General Counsel’s burden as requiring protected activity, knowledge, and causal connection or nexus.

A PDF of the ALJ’s decision can be found at the following link: Gerawan Farming, Inc., Case Nos. 2015-CE-007-VIS, et al.

Board Issues Decision in Premiere Raspberries, LLC (2018) 44 ALRB No. 8 (Case No. 2018-MMC-02)

On August 27, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in Premiere Raspberries, LLC, (2018) 44 ALRB No. 8 (Case No. 2018-MMC-02).

Background

On March 8, 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. The Board ordered the parties to MMC in its decision, Premiere Raspberries, LLC (2018) 44 ALRB No. 3. In this decision, the Board also denied Premiere’s request for an order staying the MMC process 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 Unfair Labor Practice 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.

Board Decision and Order

The mediator in the MMC case filed his report with the Board on August 11, 2018. Premiere’s counsel attended the MMC session which was held on July 9, 2018 solely for the purpose of stating her objection to the MMC process. Premiere did not present proposals or counterproposals or any testimony or evidence in support of any bargaining position. The mediator accepted the UFW’s proposals in their entirety and recommended that they comprise a collective bargaining agreement with a term of three years. Premiere filed a petition for review of the mediator’s report with the Board. The Board dismissed the petition for review, finding that Premiere had not established that any of the statutory grounds exist for the Board to grant review of the Mediator’s Report. The mediator’s refusal to stay MMC was not arbitrary or capricious under Labor Code 1158, and Premiere’s decision not to avail itself of the opportunity to participate in MMC did not support a violation of due process. The Board ordered that the Mediator’s Report take immediate effect as a final order of the Board.

A PDF of the Board’s decision can be found at the following link: Premiere Raspberries, LLC (2018) 44 ALRB No. 8.

Board Issues Decision in Arnaudo Brothers, LP and Arnaudo Brothers, Inc. (2018) 44 ALRB No. 7 (Case Nos. 2015-CE-006-VIS, et al.)

On August 16, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in Arnaudo Brothers, LP and Arnaudo Brothers, Inc. (2018) 44 ALRB No. 7 (Case Nos. 2015-CE-006-VIS, et al.).

Background

On March 29, 2018, Administrative Law Judge Mary Miller Cracraft (the “ALJ”) issued a decision finding that respondents Arnaudo Brothers, LP and Arnaudo Brothers, Inc. (“Arnaudo”) unlawfully failed to bargain with charging party United Farm Workers of America (the “UFW”) over wage rates for a mandatory mediation and conciliation (“MMC”) contract in 2014-2015 and over the discretionary aspects of Arnaudo’s implementation of an employee medical plan in 2016. The ALJ did not order monetary remedies for either violation. The General Counsel of the ALRB filed exceptions arguing that makewhole should have been awarded for both violations.

Board Decision and Order

The Board affirmed in part and reversed in part the ALJ’s recommended remedy. With respect to the 2014-2015 violation, the Board found that the General Counsel’s complaint conceded that Arnaudo paid all wages required by the MMC contract, which overlapped with the makewhole period and, thus, precluded a makewhole award. The Board also found that, under the rationale of Gerawan Farming, Inc. (2018) 43 ALRB No. 1, bargaining makewhole could not be awarded because awarding makewhole within the effective dates of an MMC contract would result in a punitive remedy. With respect to the 2016 medical plan implementation, the Board held that the proper measure of the monetary remedy for a discrete unilateral change is the difference between the affected employees’ earnings and benefits under the unilaterally changed terms of employment and the earnings and benefits they would have received absent those changes, rejecting the General Counsel’s argument that a “bargaining makewhole” measure should be applied. The Board held that, because there was not an adequate record to support the ALJ’s conclusion that employees could not have suffered economic losses resulting from the implementation of the medical plan, a monetary remedy should be included and the amount of economic losses, if any, should be determined in compliance proceedings.

A PDF of the Board’s decision can be found at the following link: Arnaudo Brothers (2018) 44 ALRB No. 7.

Board Issues Decision in United Farm Workers of America (Lopez) (2018) 44 ALRB No. 6 (Case No. 2015-CL-006-VIS)

On July 24, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in United Farm Workers of America (Lopez) (2018) 44 ALRB No. 6 (Case No. 2015-CL-006-VIS).

Background

On April 28, 2014, Administrative Law Judge Mark R. Soble (“ALJ”) issued a decision finding that Respondent United Farm Workers of America (“UFW”) violated Section 1154(a)(1) of the Agricultural Labor Relations Act (“ALRA” or “Act”) by directing or misleading hotel security into excluding anti-UFW agricultural workers from an Agricultural Labor Relations Board (“ALRB” or “Board”) public hearing. The ALJ ordered the UFW to cease and desist from violating the Act, to post a notice at all of its offices in the San Joaquin Valley for a sixty-day period, to post a notice at Gerawan Farming, Inc. (“Gerawan”) for a sixty-day period, and also to cooperate with the Visalia Region to arrange for notice mailing and notice reading to crews employed by the UFW during the time period of September 1, 2015 to September 16, 2015. The ALJ also ordered training on the Act for all San Joaquin-Valley based UFW coordinators, organizers and their immediate supervisors.

Board Decision and Order

The Board upheld the ALJ’s conclusion concerning the 2013 interrogation, threat, and surveillance allegations and also found that the The Board affirmed the ALJ’s findings of fact, in part, and affirmed the ALJ’s legal conclusion that the UFW violated the Act by directing or misleading hotel security into temporarily excluding anti-UFW workers from engaging in protected, concerted activity at a public hearing held by the ALRB. The Board found that that the blue-shirted, anti-UFW workers engaged in concerted, protected activity. The Board also affirmed the ALJ’s credibility determinations. The Board did not adopt the ALJ’s conclusion that there was widespread dissemination of information, whether by word of mouth or through smart phones or online platforms, among Gerawan employees regarding the temporary exclusion of the blue-shirted workers. Additionally, the Board clarified the ALJ’s order to state that the mailing and notice readings be provided to crews employed by Gerawan, and not Respondent, UFW. Finally, the Board overturned the ALJ’s order for training for all San Joaquin-Valley based UFW coordinators, organizers, and their immediate supervisors, and denied a media noticing remedy requested by the charging party.

A PDF of the Board’s decision can be found at the following link: United Farm Workers (Lopez) (2018) 44 ALRB No. 6.

ALJ Issues Decision in Gerawan Farming, Inc., Case Nos. 2013-CE-011-VIS, et al.

On May 29, 2018, Administrative Law Judge (“ALJ”) Mary Miller Cracraft issued a decision in Gerawan Farming, Inc., Case Nos. 2013-CE-011-VIS, et al.

The administrative law judge (“ALJ”) found that Gerawan Farming, Inc. (the Employer) violated section 1153 (a) and (e) of the Agricultural Labor Relations Act (ALRA) by failing to provide certain necessary and relevant information to the United Farm Workers of America (UFW). This information included copies of documents employees were asked to sign during a meeting held by the Employer, detailed information about changes in crops and acreage as well as data reflecting impact of these changes on employee wages and hours, information about any health insurance plan, and documents relating to property access of a non-employee promoting decertification. The ALJ also found that the Employer violated section 1153 (a) and (e) of the ALRA by unilaterally altering its health plan and unilaterally instituting a sick leave plan without affording the UFW notice and an opportunity to bargain regarding these matters.

A PDF of the ALJ’s decision can be found at the following link: Gerawan Farming, Inc., Case Nos. 2013-CE-011-VIS, et al.

Board Issues Decision in United Farm Workers of America (Olvera/Magaña) (2018) 44 ALRB No. 5 (Case Nos. 2013-CL-002-SAL, et al.)

On May 14, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in United Farm Workers of America (Olvera/Magaña) (2018) 44 ALRB No. 5 (Case Nos. 2013-CL-002-SAL, et al.).

Background

On August 4, 2017, Administrative Law Judge William L. Schmidt (the “ALJ”) issued a decision finding that, in 2013, Respondent United Farm Workers of America (the “UFW”) unlawfully interrogated and threatened employees who circulated a petition seeking the removal of the UFW’s contract administrator. The ALJ further found that the UFW placed petitioning activity under surveillance and created the impression of surveillance of such activity. While the 2013 allegations had been settled in a February 2016 settlement agreement, the ALJ found that the UFW voided the settlement agreement when it unlawfully threatened an employee who had filed a charge against the UFW in March 2016. While sustaining the charge alleging the March 2016 threat, the ALJ dismissed additional allegations that the UFW unlawfully excluded employees from a crew meeting for engaging in protected dissident union activity and unlawfully instructed employees to ignore and/or not trust an employee whom the UFW believed was engaged in decertification activity.

Board Decision and Order

The Board upheld the ALJ’s conclusion concerning the 2013 interrogation, threat, and surveillance allegations and also found that the UFW made a threat against an additional employee, a violation not found by the ALJ. The Board agreed with the ALJ that the UFW threatened an employee in March 2016 and that this conduct voided the agreement to settle the 2013 charges. The Board agreed that the exclusion of dissident employees from the crew meeting did not violate the Act. Labor Code section 1154, subdivision (a)(1) generally does not prohibit intraunion discipline that does not affect members’ status as employees, and does not involve threats or violence, prevent members from accessing Board processes, or conflict with policies imbedded in the ALRA. The exclusion from the crew meeting, where only internal union matters were discussed, did not affect the dissidents’ status as employees. Finally, the Board agreed with the ALJ that the UFW instructions to employees concerning suspected decertification activity did not violate the Act. Labor Code section 1155 protects speech that does not contain threats or promises of benefits and unions are entitled to defend themselves against suspected decertification activity.

A PDF of the Board’s decision can be found at the following link: United Farm Workers of America (Olvera/Magaña) (2018) 44 ALRB No. 5.

Board Issues Decision in P & M Vanderpoel Dairy (2018) 44 ALRB No. 4 (Case No. 2013-CE-016-VIS (40 ALRB No. 8))

On April 20, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in P & M Vanderpoel Dairy (2018) 44 ALRB No. 4 (Case No. 2013-CE-016-VIS (40 ALRB No. 8)).

Background

On April 28, 2014, an administrative law judge issued a recommended decision finding that Respondent P & M Vanderpoel Dairy (“Vanderpoel”) violated Section 1153(a) of the Agricultural Labor Relations Act (“ALRA” or “Act”) when it interfered with, restrained, and coerced its employees in their exercise of the right guaranteed to them in Section 1152 of the Act. The administrative law judge ordered the terminated employees be reinstated and made whole for all wages and other economic losses resulting from their unlawful discharges. On August 28, 2014, the Board issued a decision affirming the administrative law judge’s findings of fact and legal conclusions and adopting his recommended order. (P & M Vanderpoel Dairy (2014) 40 ALRB No. 8.)

After the Court of Appeal and the California Supreme Court denied Vanderpoel’s petition for review, the matter was released for compliance. Thereafter, a partial settlement agreement made whole four of the five terminated employees, except for Charging Party Jose Noel Castellon Martinez (“Martinez”). The parties were unable to reach a settlement concerning Martinez, and a supplemental compliance proceeding was held before an administrative law judge. The administrative law judge ordered that Vanderpoel provide $26,410.00 in backpay to Martinez. Vanderpoel filed exceptions to the ALJ’s supplemental decision.

Board Decision and Order

The Board affirmed the ALJ’s findings of fact and legal conclusions, in part, with a modification to the ALJ’s recommended order that decreased Martinez’s backpay amount by $1,500.00 due to earnings not included in the backpay specification.

A PDF of the Board’s decision can be found at the following link: P & M Vanderpoel Dairy (2018) 44 ALRB No. 4.

ALJ Issues Decision in Arnaudo Brothers, LP, and Arnaudo Brothers, Inc., Case Nos. 2015-CE-006-VIS, 2017-CE-003-VIS

On March 29, 2018, administrative law judge (“ALJ”) Mary Miller Cracraft issued a decision in Arnaudo Brothers, LP, and Arnaudo Brothers, Inc., Case Nos. 2015-CE-006-VIS and 2017-CE-003-VIS.

The administrative law judge (“ALJ”) found that Arnaudo engaged in bad faith bargaining due to delaying tactics from November 2014 through most of March 2015. These tactics evinced no intention on the part of Arnaudo to reach an agreement. The ALJ noted that during this time period the parties were engaged in Mandatory Mediation and Conciliation (“MMC”). The ALJ nevertheless found that the parties were engaged in “voluntary” bargaining separate and part from the MMC proceedings and that these “voluntary” dealings fully supported a finding of bad faith. The ALJ rejected Arnaudo’s defense that any delay was solely due to the mediator. The ALJ also noted that were it necessary to make a determination regarding whether Arnaudo acted in bad faith during the MMC proceedings, such a finding would be warranted. On a second allegation, the ALJ concluded that Arnaudo violated its duty to bargain in good faith by unilaterally implementing a health care plan. In making this finding, the ALJ rejected Arnaudo’s defenses that that unilateral action was mandated by the Affordable Care Act and that the allegation was time barred. To remedy these violations, the ALJ recommended standard notice posting, reading, and mailing. No bargaining makewhole remedy was recommended.

A PDF of the ALJ’s decision can be found at the following link: Arnaudo Brothers, LP, and Arnaudo Brothers, Inc., Case Nos. 2015-CE-006-VIS and 2017-CE-003-VIS.

Board Issues Decision in Premiere Raspberries, LLC (2018) 44 ALRB No. 3 (Case No. 2018-MMC-02)

On March 20, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in Premiere Raspberries, LLC (2018) 44 ALRB No. 3 (Case No. 2018-MMC-02).

Background

On March 8, 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 found that the relevant prerequisites for referral to MMC as set forth in Labor Code section 1164, subdivision (a) and section 20400, subdivision (b) of the Board’s regulations were met. The Board granted the request for referral to MMC.

The Board denied Premiere’s request for an order staying the MMC process 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 Unfair Labor Practice 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. 3.

Governor reappoints Board Member Cathryn Rivera-Hernandez

On February 27, 2018, Governor Edmund G. Brown Jr. announced the reappointment of Board Member Cathryn Rivera-Hernandez.

Ms. Rivera-Hernandez was previously reappointed to the Board by Governor Edmund G. Brown, Jr. in January 2013. Ms. Rivera-Hernandez was initially appointed by Governor Gray Davis in November 2002 and she was reappointed by Governor Arnold Schwarzenegger in January 2008. Prior to her appointment, Ms. Rivera-Hernandez served as Chief Deputy Cabinet Secretary for Governor Davis.

The Governor’s announcement can be found at the following link: Governor Brown Announces Appointments.

Board Issues Decision in Premiere Raspberries, LLC (2018) 44 ALRB No. 2 (Case No. 2018-MMC-01)

On February 15, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in Premiere Raspberries, LLC (2018) 44 ALRB No. 2 (Case No. 2018-MMC-01).

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

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

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

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 ag ents 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.