ALJ Issues Decision in DMB Packing Corp. dba The DiMare Company, 2023-RM-001-VIS

On March 18, 2024, Administrative Law Judge (ALJ) Hermine Honarvar Rule issued a decision in DMB Packing Corp. dba The DiMare Company, Case No. 2023-RM-001-VIS.

Background

The United Farm Workers of America (UFW) filed a majority support petition (MSP) under the recently enacted Labor Code §1156.37 seeking certification to become the bargaining representative of a unit of agricultural employees employed by DMB Packing Corp dba the DiMare Company (DiMare or Employer) on September 12, 2023.

The Interim Regional Director (IRD) conducted an investigation and issued a letter on September 19, 2023, notifying DiMare and the UFW that the UFW had failed to provide proof of majority support. In accordance with Labor Code §1156.37(e)(4), the UFW was given 30 days to submit additional support (cure period).

The IRD issued a Regional Director’s Tally (Tally) on October 20, 2023, after the conclusion of the cure period informing the parties that proof of majority support was established.

The ALRB Executive Secretary issued the Certification of Investigation of Validity of Majority Support Petition and Proof of Majority Support (Certification) on October 24, 2023.

DiMare filed an Interim Appeal of Regional Director’s Tally and Request for Stay of Certification Pending Board Review of Challenged Authorization Cards (Interim Appeal) prior to the issuance of the Certification alleging that the IRD exceeded her authority by adding names to the eligibility list and requested the Board stay the Certification pending Board review of the contested authorization cards.  On the same day, the UFW filed an objection to the Interim Appeal.

DiMare filed objections to the Certification under Labor Code §1156.37(f)(1) on October 30, 2023. The UFW filed conditional objections pending the outcome of DiMare’s objections.

The Board issued an Administrative Order denying DiMare’s Interim Appeal and request for stay; the Board set DiMare’s Objections 1, 2, 5, 6, and 8 for hearing and dismissed the remaining nine Objections.

This case was heard pursuant to the direction of the Agricultural Labor Relations Board (ALRB or Board) in DMB Packing Corp. dba The DiMare Company (Nov. 3, 2023) Admin. Order No. 2023-11.

The ALJ found The IRD followed proper process in reaching the Majority Support Petition determination. The ALJ found the IRD did not violate DiMare’s due process rights to dispute the evidence regarding the individuals added to the eligibility list. The ALJ found the IRD did not exceed her authority under the Act by expanding the eligibility list and did not violate DiMare’s due process rights. The ALJ found the IRD did not exceed her authority under the Act by accepting additional names for the eligibility list after the initial tally had taken place. The ALJ found the IRD acted properly by not providing DiMare the evidence submitted by the UFW in support of the addition of individuals to the eligibility list. The ALJ dismissed DiMare’s five Objections.

A PDF of the ALJ’s Decision can be found at the following link: DMB Packing Corp. dba The Dimare Company, 2023-RM-001-VIS

Board Issues Decision Holding a Contract Reached Through Mandatory Mediation and Conciliation Provides the Most Appropriate Basis For Calculating the Amount of a Bargaining Makewhole Remedy

On June 22, 2023, the Agricultural Labor Relations Board issued a decision holding a contract reached through mandatory mediation and conciliation proceedings supplied the most appropriate basis for calculating the amount of a bargaining makewhole remedy. In Gerawan Farming, Inc. (2018) 44 ALRB No. 1, the Board found the employer violated the Agricultural Labor Relations Act by engaging in bad faith, surface bargaining tactics during negotiations with the United Farm Workers of America. Among other things, the Board ordered a bargaining makewhole remedy to compensate employees for losses incurred as a result of the employer’s bad faith tactics that forestalled efforts at reaching a collective bargaining agreement. During compliance proceedings, the Regional Director issued a makewhole specification calculating the amount of the bargaining makewhole remedy based on an averaging of the wages and benefits contained in various UFW contracts. The employer objected to this approach and argued a contract ordered into effect by the Board between these parties following the completion of mandatory mediation and conciliation proceedings provided the most appropriate measure of the makewhole remedy. The administrative law judge rejected the employer’s argument. On exceptions, a divided Board reversed the ALJ and held the mandatory mediation and conciliation contract previously ordered into effect between the parties provided the most reasonable and appropriate basis for calculating the amount of the bargaining makewhole remedy.

A PDF of the Board’s decision can be found at the following link: Gerawan Farming, Inc. (2023) 49 ALRB No. 2

Board Continues Public Meeting to April 6, 2023, at 1:00 p.m.

Please take notice that the Agricultural Labor Relations Board (ALRB or Board) will continue its April 5, 2023 public meeting on Thursday, April 6, 2023, at 1:00 p.m. Pursuant to Government Code section 11133, there will not be a physical meeting location. Board members will participate via videoconference, and members of the public also may attend via videoconference as set forth below

To attend the Board’s April 6, 2023 public meeting, please follow the instructions below:

Attend the Meeting via Videoconference

  1. In your web browser, go to www.webex.com
  2. Select Join a Meeting at the top of the page
  3. Enter the meeting number: 2319 907 2525 and click Continue
  4. Enter the meeting password: 1325-public-meet and click OK
  5. Click Join Meeting
  6. Type your name and email address and click Next
  7. The videoconference system will be activated at 9:55 a.m.

OR

Attend the Meeting via Teleconference

  1. Dial(415) 655-0001or (213) 306-3065
  2. When prompted, enter the access code: 2319 907 2525 and follow directions.
  3. Teleconference will be opened to the public at 12:55 p.m.

Board Issues Precedential Administrative Order Providing Guidance Regarding Labor Peace Agreement Complaints

On March 30, 2023, the Agricultural Labor Relations Board (ALRB or Board) issued an administrative order regarding a labor peace agreement complaint filed by the International Brotherhood of Teamsters (Teamsters). This is the first labor peace agreement the Board has received since Assembly Bill No. 195 (AB 195) took effect last year. AB 195 amended Business and Professions Code section 26051.5 to provide that labor organizations, or current or former employees of an employer licensed to conduct commercial cannabis activity under the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), may file complaints with the ALRB that a licensee has entered into a labor peace agreement with an organization that is not a bona fide labor organization. In light of the novel legal issues involved, the Board issued an administrative order designated as precedential providing guidance to the parties involved and other affected stakeholders or interested persons regarding its administration of this complaint procedure under the MAUCRSA. The Board also delegated authority to the General Counsel to investigate the allegations of the Teamsters’ complaint.

The Board’s administrative order, designated as Professional Technical Union, Local 33 (Mar. 30, 2023) ALRB Admin. Order No. 2023-02-P, is available here.

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

On January 20, 2023, Administrative Law Judge (ALJ) John McCarrick issued a decision in Gerawan Farming, Inc., Case Nos. 2012-CE-041-VIS et al (44 ALRB No. 1).

Background

On January 22, 2018, the Board found that Respondent had violated the Agricultural Labor Relations Act (Act) by refusing to bargain in good faith with the UFW during the period January 18, 2013, to June 30, 2013. Gerawan Farming, Inc., (2018) 44 ALRB No. 1. To remedy Respondent’s unfair labor practices, the Board ordered a bargaining makewhole remedy for Respondent’s agricultural employees for this period. In its decision the Board declined to use the contract terms in the mediator’s report (MMC) as the methodology for makewhole as this issue is a case of first impression for the Board. Instead, the Board directed that whether the MMC contract as the basis for makewhole should be fully briefed and litigated in this proceeding.

After the various appeals ran their course and the case was released for compliance, on December 13, 2021, the Regional Director for the ALRB Visalia Regional Office issued a Makewhole Specification utilizing the contract averaging method (CAM) recommended by Dr. Zachariah Rutledge (Dr. Rutledge).

This case was heard pursuant to the direction of the Agricultural Labor Relations Board (Board) in its decision in Gerawan Farming, Inc., (2018) 44 ALRB No. 1 and the Makewhole Specification (Specification) issued by the Regional Director for the Visalia Region of the Board on December 13, 2021. The hearing was conducted from August 15-18, 2022, via WebEx video conference.

The ALJ found that the contract averaging method (CAM) in General Counsel’s Backpay Specification was a reasonable method for determining backpay makewhole. The ALJ found that the contract imposed by the Board pursuant to mandatory mediation and conciliation (MMC) was not a comparable contract for calculating bargaining backpay since it was reached when Respondent was engaged in bad faith bargaining and was not congruent with the backpay period. The ALJ found that the amounts in the Specification calculated for wages, pension and health care benefits were reasonable amounts. The ALJ found that alternate methodology should be used to calculate vacation and holiday pay and recommended the Specification be returned to the Regional Director for recalculation using the modifications in his decision.

A PDF of the ALJ’s Decision can be found at the following link: Gerawan Farming, Inc., Case Nos. 2012-CE-041-VIS et al (44 ALRB No. 1)

ALJ Issues Default Decision in Zabala Farms of Salinas, LLC, Case No. 2021-CE-018-SAL

At all pertinent time periods, Zabala Farms of Salinas, LCC cultivated cannabis in Salinas, California, and thus was an agricultural employer within the meaning of California Labor Code section 1140.4, subdivisions (a) and (c). At least some of the company’s workers were retained through a farm labor contractor, Valle Dorado.

Today, Tuesday, January 17, 2023, Chief Administrative Law Judge Mark Soble issued a decision finding that Zabala Farms of Salinas, LLC, committed an unfair labor practice when it disciplined and terminated a worker for protesting a decrease in workers’ piece-rate salaries.

Upon being advised of a reduction in the piece rate salary, the terminated worker and approximately fifteen of her colleagues refused to work for a few hours until they could speak with the farm labor contractor’s chief executive officer. After a brief meeting, the workers then returned to their work areas. The terminated worker was then singled out for a separate meeting with the farm labor contractor’s chief executive officer, where the CEO first issued her a disciplinary notice and then terminated her.

Following the issuance and service of the General Counsel’s complaint, Zabala Farms of Salinas, LLC, failed to file an answer. Pursuant to established case law, the Administrative Law Judge granted the General Counsel’s motion for a default judgment and to deem admitted all of the allegations in the complaint.

A PDF of the ALJ’s Decision can be found at the following link: Zabala Farms of Salinas, LLC, Case No. 2021-CE-018-SAL

Board Issues Precedential Administrative Order Granting Judicial Enforcement of Investigative Subpoenas in St. Supéry, Inc. (Sept. 28, 2022) ALRB Admin. Order No. 2022-06-P

On September 28, 2022, the Agricultural Labor Relations Board issued an administrative order designated as precedential granting the General Counsel’s request to seek judicial enforcement of six investigatory subpoenas. In this case, the charged party employer, St. Supéry, Inc. dba St. Supéry Vineyards and Winery, refused to comply with the General Counsel’s efforts at investigating an unfair labor practice charge. After the General Counsel resorted to formal investigative subpoenas, the employer did not file any petitions to revoke the subpoenas as required by Board regulation 20217 and failed to comply with any of them. The General Counsel then applied to the Board for authorization to commence a judicial proceeding to enforce its investigative subpoenas pursuant to Labor Code section 1151, subdivision (b). The Board granted the General Counsel’s request.

A PDF of the Board’s administrative order can be found at the following link: St. Supéry, Inc. (2022) ALRB Admin. Order No. 2022-06-P

Board Issues Decision in Lily’s Green Garden, Inc., Case No. 2020-CE-025-SAL; 2020-CE-037 SAL

On September 8, 2022, the Agricultural Labor Relations Board (Board) issued its decision and order in Lily’s Green Garden (2022) 48 ALRB No. 3.

Background

The General Counsel filed and served a consolidated complaint alleging that Lily’s Green Garden (Respondent) retaliated against the charging party and other workers after they complained about poor treatment by one of Respondent’s supervisors. The complaint also alleged that Respondent retaliated against the charging party for filing a charge with the Agricultural Labor Relations Board (ALRB or Board). The complaint requested standard cease and desist and noticing remedies, and also requested that the charging party be made whole for any economic losses incurred due to Respondent’s unlawful conduct.

The Respondent failed to file a timely answer to the complaint, and the General Counsel filed a motion for default judgment. The Administrative Law Judge (ALJ) issued an order granting the motion for default judgment and ordered the allegations in the complaint deemed admitted. The ALJ’s order included the remedies requested in the complaint except for a backpay remedy.

Board Decision

After the matter was transferred to the Board, the General Counsel filed a motion seeking clarification as to whether the ALJ inadvertently omitted the backpay remedy. The Board stated that the correct procedure to request review of an ALJ decision is by the filing of exceptions pursuant to Board regulation 20282, thus the General Counsel’s clarification motion was not procedurally proper. However, because the Board has the authority to address remedial issues even in the absence of exceptions, the Board considered the matter sua sponte.

The complaint included allegations suggesting that the charging party incurred economic harm as a result of Respondent’s unfair labor practices. The Board concluded that any status quo ante remedy must include backpay in order to fully remediate the effects of the Respondent’s unlawful acts. Therefore, the Board ordered that the charging party be made whole for all wages and economic losses she incurred.

A PDF of the Board’s decision can be found at the following link: Lily’s Green Garden (2022) 48 ALRB No. 3

ALJ Issues Decision in Lily’s Green Garden, Inc., Case No. 2020-CE-025-SAL; 2020-CE-037 SAL

The decision of the Administrative Law Judge (ALJ) issued on July 14, 2022. The ALJ found that Lily’s Green Garden, Inc., (the Employer) violated sections 1152, 1153 (a) and (d) of the Agricultural Labor Relations Act (ALRA) by threatening to terminate employees, assigning more difficult work to employees, isolating employees and telling employees it would be futile to engage in protected-concerted activity due to their engaging in protected concerted activity under section 1152 of the Act and for filing unfair labor practice charges with the Agricultural Labor Relations Board. The protected concerted activity involved employees complaining to the Employer about their treatment by a supervisor. In this case, the employer failed to file a timely answer and did not establish good cause for its failure to file a timely answer to the consolidated complaint. General Counsel’s Motion to Deem the Allegations of the Complaint Admitted was granted.

A PDF of the ALJ’s Decision can be found at the following link: Lily’s Green Garden (Case No. 2020-CE-025-SAL; 2020-CE-037 SAL)

Board Issues Decision in Cinagro Farms, Inc. (2022) 48 ALRB No. 2 (Case No. 2017-CE-008-SAL)

On July 28, 2022, the Board issued a decision in Cinagro Farms, Inc. (2022) 48 ALRB No. 2. In its decision, the Board affirmed the finding by the Administrative Law Judge (ALJ) that Cinagro Farms, Inc. (Cinagro) unlawfully terminated a crew of workers after they lodged complaints about the lack of proper paystubs with their paychecks which were prepared on the basis that Cinagro was classifying them as independent contractors. In addition, the Board concluded that Cinagro’s misclassification of the crew, by itself, supports finding a separate violation of Agricultural Labor Relations Act (ALRA) section 1153, subdivision (a). The Board also affirmed the dismissal of a separate allegation concerning the foreman of the crew; however, the Board stated that it will prospectively recognize an additional exception to the general rule that supervisors are not entitled to protection under the ALRA, and concluded the protection of the Act would be extended to cover a supervisor who serves as a conduit for reporting employees’ complaints about misclassification to their employer, and then is discharged for doing so. The Board concluded that it has authority to assess civil penalties under Labor Code section 226.8, and that the record demonstrates “willful misclassification” of the crew by Cinagro within the meaning of section 226.8, subdivision (a). Finally, the Board concluded that Labor Code section 226.8 obligates Cinagro to offer reinstatement to the entirety of the improperly terminated crew, including the crew foreman.

A PDF of the Board’s Decision can be found at the following link: Cinagro Farms, Inc., Case No. 2017-CE-008-SAL, 48 ALRB No. 2

ALJ Issues Decision in Sonoma Cho, LLC, dba Flora Terra, Case No. 2022-RC-001-SAL

Today, Monday, May 9, 2022, Chief Administrative Law Judge Mark Soble issued a decision finding two lead persons with a Santa Rosa cannabis grower eligible to vote in a representation election.

On February 25, 2022, the Board directed the ALJ to conduct an investigative hearing to determine whether or not the two lead persons were supervisors that were ineligible to vote. One of the lead persons worked on a four-person cultivation team. The other lead person worked on a four-person packaging team. The Board also directed the ALJ to determine if the lead person on the packaging team was engaged in secondary agriculture or manufacturing. The former would be eligible to vote, whereas the latter would not. A hearing was held on March 8-9, 2022 and the parties completed briefing on April 12, 2022.

Applying longstanding NLRB and ALRB law, the ALJ found that neither worker met the definition of a supervisor. The lead persons spent approximately ninety percent of their work time doing the same duties as the other team members. The two lead persons did assign routine, repetitive tasks to the three other members of their respective teams, but only within the parameters of standard operating procedures and only after receiving specific daily instructions from their manager.

The ALJ noted that all cannabis was grown in a single ten thousand square foot building, and that nothing was packed that was not grown on site. When the packagers put cannabis into jars and bags, they did not change the attributes or potency of the product. Under those facts, the ALJ found that the packaging workers (including the lead person) were engaged in secondary agriculture. However, during the twenty-five percent of their time that the packagers used a machine to make pre-rolled joints, the ALJ found that the packagers were engaged in manufacturing, not secondary agriculture. The ALJ found that the packaging team (including the lead person) were eligible to vote as a dual function employees.

A PDF of the ALJ’s Decision can be found at the following link: Sonoma Cho, LLC, dba Flora Terra, Case No. 2022-RC-001-SAL

ALJ Issues Decision in Cinagro Farms, Inc., Case No. 2017-CE-008-SAL

The decision of the chief administrative law judge (“ALJ”) Mark R. Soble issued on October 26, 2021. The ALJ found that the Cinagro committed an unfair labor practice in violation of California Labor Code sections 1152 and 1153, subdivision (a). In addition to reinstatement and backpay for the workers, the ALJ ordered the posting, mailing and reading of a notice to Cinagro workers.

A PDF of the ALJ’s Decision can be found at the following link: Cinagro Farms, Inc,. Case No. 2017-CE-008-SAL

ALJ Issues Decision in Reitz Ranches, Case No. 2018-CE-002-VIS

The decision of the Administrative Law Judge (ALJ) Mary Miller Cracraft issued on June 22, 2021. Respondent was found in violation of §1153(a) of the Agricultural Labor Relations Act (the Act) by interfering with, restraining, and coercing its employees when it terminated four workers because they concertedly complained about the pace of work and lack of protective equipment and by terminating Charging Party Javier Lopez (Lopez) because he was perceived to be associated with the four terminated employees. Further, Respondent was found in violation of §1153(d) of the Act for terminating Lopez because he threatened to file a charge with the ALRB over Respondent’s personnel practices.
The ALJ’s recommended Order requires that Respondent cease and desist from discharging or otherwise retaliating against employees because they engage in protected concerted activities or because they state an intent to file a charge with the ALRB or any like or related violations of the Act. The recommended Order further requires that the discharged employees be reinstated and made whole for the losses caused by their terminations; standard Notice posting, reading, and mailing; supervisory training; and that access be provided to ALRB agents to ensure compliance with the Order.

A PDF of the ALJ’s decision can be found at the following link: Reitz Ranches, Case No. 2018-CE-002-VIS.

Board Issues Precedential Administrative Order in Premiere Raspberries, LLC , (March 6, 2020) ALRB Admin Order No. 2020-05-P

On March 6, 2020, the Board issued an administrative order in this case designated as precedential pursuant to Board regulation 20287 (Cal. Code Regs., tit. 8, § 20287).  In Premiere Raspberries, LLC (2018) 44 ALRB No. 9, the Board found the employer, Premiere Raspberries, LLC (Premiere), unlawfully refused to bargain with the United Farm Workers of America (UFW) and awarded bargaining makewhole relief.  In this administrative order the Board modified the bargaining makewhole period in light of Premiere’s continued failure to comply with its duty to bargain with the UFW based on its failure to implement a contract ordered into effect following mandatory mediation and conciliation procedures.

A PDF of the Board’s administrative order can be found at the following link:  Premiere Raspberries, LLC (March 6, 2020) ALRB Admin. Order No. 2020-05-P.

ALJ Issues Decision in Sun Pacific Farming Cooperative, Inc. , Case No. 2017-CE-020-VIS

The decision of the Administrative Law Judge (ALJ) John J. McCarrick issued on February 26, 2020. The ALJ found that Sun Pacific Farming Cooperative, Inc., (the Employer) did not violate section 1153 (a) of the Agricultural Labor Relations Act (ALRA) by terminating Juan Pablo Ochoa (Ochoa) for engaging in protected concerted activity protected under section 1152 of the Act. Rather, the ALJ found that Respondent terminated Ochoa because he violated its rule that employees who are absent for three consecutive days without excuse are considered to have voluntarily quit. The ALJ found no evidence that Respondent’s motivation in terminating Ochoa was due to his protected concerted activity.

A PDF of the ALJ’s decision can be found at the following link: Sun Pacific Farming Cooperative, Inc., Case No. 2017-CE-020-VIS.

Board Issues Precedential Administrative Order in King City Nursery, LLC , (Jan. 9, 2020) ALRB Admin Order No. 2020-01-P

On January 9, 2020, the Board issued an administrative order in this case designated as precedential pursuant to Board regulation 20287 (Cal. Code Regs., tit. 8, § 20287.) In this matter, the employer, King City Nursery, LLC, filed a request to appeal an order of an administrative law judge denying its petition to revoke a subpoena by the General Counsel. The Board considered the employer’s appeal, and denied it on the merits.

A PDF of the Board’s administrative order can be found at the following link: King City Nursery, LLC (Jan. 9, 2020) ALRB Admin. Order No. 2020-01-P.

ALJ Issues Decision in Rincon Pacific, LLC , Case No. 2014-CE-044-SAL

The decision of the Administrative Law Judge (ALJ) John J. McCarrick issued on December 9, 2019. The ALJ found that Rincon Pacific, LLC, (the Employer) violated sections 1152 and 1153 (a) and (d) of the Agricultural Labor Relations Act (ALRA) by refusing to rehire its employees due to their engaging in protected concerted activity protected under section 1152 of the Act and for filing unfair labor practice charges with the Agricultural Labor Relations Board. The protected concerted activity involved engaging in a work stoppage concerning their wages and working conditions. The employees filed unfair labor practice charges concerning their discrimination by Respondent. In addition, issues of agency and adequacy of the complaint were resolved in the decision.

A PDF of the ALJ’s decision can be found at the following link: Rincon Pacific, LLC, Case No. 2014-CE-044-SAL.

Board Issues Decision in United Farm Workers of America (Garcia) (2019) 45 ALRB No. 8 (Case No. 2018-CL-003-VIS)

On November 26, 2019, the Agricultural Labor Relations Board (Board) issued its decision and order in United Farm Workers of America (Garcia) (2019) 45 ALRB No. 8.

Background

Respondent United Farm Workers of America (UFW) threatened to picket Gerawan Farming, Inc. (Gerawan) if Gerawan did not recognize and bargain with the union. In UFW (Garcia) (2019) 45 ALRB No. 4, the Board found the UFW’s picketing threat violated Labor Code section 1154, subdivision (h). The Board remanded separate allegations that the picketing threat also violated section 1154, subdivisions (a)(l) and (a)(2) for further proceedings. In addition, the Board reversed the administrative law judge’s (ALJ) determination that notice mailing and reading remedies were not appropriate, and ordered the full range of standard notice remedies based on the UFW’s violation of section 1154, subdivision (h).

On remand, the ALJ issued a recommended decision and order dismissing the section 1154, subdivision (a)(l) and (a)(2) violations, and ordering the notice remedies directed by the Board in its prior decision.

Board Decision

The UFW filed a single exception to the notice mailing and reading remedies, as well as the requirement that it provide notice to employees hired by Gerawan for a 12-month period. The Board found the exception was barred because the UFW’s proper recourse to challenge the notice remedies was to file a motion for reconsideration before the Board following its earlier decision in 45 ALRB No. 4. Even assuming the exception was properly before it, the Board rejected the UFW’s arguments that section 1154, subdivision (h) is intended to protect only employers and the notice remedies were inappropriate. Pursuant to its decision in 45 ALRB No. 4, the Board reiterated that section 1154, subdivision (h) is intended to protect both employers and employees from recognitional picketing threats from noncertified unions, and thus standard notice remedies were appropriate.

A PDF of the Board’s decision can be found at the following link: United Farm Workers of America (Garcia) (2019) 45 ALRB No. 8.

ALJ Issues Decision in Wonderful Orchards, LLC , Case No. 2016-CE-023-VIS

On September 12, 2019, Administrative Law Judge (ALJ) Mary Miller Cracraft issued a decision regarding unfair labor practice allegations that Respondent Wonderful Farms LLC violated section 1153(a) of the Agricultural Labor Relations Act by terminating a van crew in December 2016 because members of the crew concertedly complained about the required pace of work, a term or condition of their employment. The ALJ found that after workers protested that the crew could not perform at the requested pace, the workers were told to put down their tools and leave, which was tantamount to being discharged. Because the discharge was for their very act of concertedly raising work-related concerns, the ALJ utilized the analysis set forth in Burnup & Sims, Inc. (1981) 256 NLRB 965. Had there been a dual motive raised by Respondent, the ALJ determined that the same result would have been reached utilizing the shifting burden analysis envisioned by Wright Line (1980) 251 NLRB 1083, enf’d (1st Cir. 1981) 662 F.2d 899, cert. denied (1982) 455 U.S. 393.

A PDF of the ALJ’s decision can be found at the following link: Wonderful Orchards, LLC, Case No. 2016-CE-023-VIS.

ALJ Issues Decision in Saticoy Berry Farms, Inc., Case No. 2017-CE-071-SAL

On August 7, 2019, Administrative Law Judge (“ALJ”) Mary Miller Cracraft issued a decision in Saticoy Berry Farms, Inc., Case No. 2017-CE-071-SAL et al. (2019)

The judge found that two Ventura County agricultural workers, acting separately, raised safety issues on behalf of themselves and other employees on various occasions in 2017. The ALJ found that both employees were engaged in protected, concerted activity. A successful attempt to silence one of these employees by adjourning a meeting while he was speaking and conditioning his return to work on his not speaking up about work-related concerns any more were found to violate the Act because, contextually, these statements would tend to coerce a reasonable employee. The ALJ recommended that other allegations of statements or actions of restraint or coercion be dismissed.

A disciplinary ticket was given to one of the employees immediately after he came to the assistance of a coworker during a confrontation between the coworker and the foreman regarding the pace of the coworker’s work. Applying the shifting burden analysis set forth in Sandhu Brothers Poultry and Farming (2014) 40 ALRB No. 12, the ALJ found that the General Counsel had shown activity, knowledge, and animus sufficient to shift the burden of going forward to the employer. The employer failed to show that it would have issued the disciplinary ticket in the absence of the worker’s protected activity. The disciplinary ticket was alleged in the complaint as retaliation for filing an unfair labor practice charge three months prior to the disciplinary ticket. The ALJ found that there was proof of activity of filing the charge and knowledge of the charge being filed but no evidence of animus. The ALJ found that the issuance of the disciplinary ticket in retaliation for speaking up for a coworker two days earlier was based on a similar legal theory, the issue was fully litigated, and the issue was directly related to the complaint allegation. The ALJ recommended that other allegations of retaliation be dismissed.

A PDF of the ALJ’s decision can be found at the following link: Saticoy Berry Farms, Inc., Case No. 2017-CE-071-SAL et al.

Board Issues Decision in Gerawan Farming, Inc. (2019) 45 ALRB No. 7 (Case No. 2015-CE-014-VIS et al.)

On July 30, 2019, the Agricultural Labor Relations Board (Board) issued its decision and order in Gerawan Farming, Inc. (2019) 45 ALRB No. 7.

Background

On August 27, 2018, the Administrative Law Judge (ALJ) issued a decision finding that Gerawan Farming, Inc. (Gerawan) violated sections 1153(a), (c) and (d) of the Agricultural Labor Relations Act (ALRA or Act) by failing to recall four agricultural employees from seasonal layoffs in retaliation for their support for the United Farm Workers of America (UFW), and with respect to one individual because he testified in a prior ALRB proceeding.

Board Decision and Order

The Board affirmed the ALJ’s factual findings and legal conclusions consistent with its own decision. The Board reiterated that under the legal standard for determining whether adverse employment actions violate the Act, the General Counsel bears the initial evidentiary burden to show that the alleged discriminatees engaged in protected concerted or union activity, the employer knew of or suspected such activity, and that there was a causal relationship between the employees’ protected activity and the adverse employment action. The Board clarified that to the extent that the ALJ indicated in her decision that proof of general antiunion animus on the part of the employer was sufficient by itself to establish the General Counsel’s prima facie case, the Board did not rely on her analysis. The Board further found that evidence of established, although informal practices used by forepersons to fill their crews following a regular seasonal layoff was sufficient to satisfy the General Counsel’s prima facie showing that the employer had a practice or policy of contacting former employees to offer them re-employment. The Board affirmed the ALJ’s conclusion that Gerawan violated the Act when one of its foremen did not recall two experienced workers who were active union supporters where the foreman’s proffered reason for not recalling the workers was a pretext. The Board affirmed the ALJ’s conclusion that Gerawan violated the Act when another of its foremen delayed rehiring a union supporter where Gerawan failed to show the delay would have occurred even absent the worker’s union activity. Finally, the Board found a violation as to the failure to rehire a fourth worker when he called two foremen at the beginning of the 2015 thinning season and was told crews were full, an excuse the Board found to be a pretext. The Board rejected the General Counsel’s argument that a violation should have also been found for a 2014 failure to recall the same worker, because that allegation was time-barred. Member Broad stated that he would find an additional violation when the worker went to the fields later in the season to look for work and again was told the crews were full.

A PDF of the Board’s decision can be found at the following link: Gerawan Farming, Inc. Case No. 2015-CE-014-VIS.

ALJ Issues Decision on Remand in UFW (Garcia) Case No. 2018-CL-003-VIS

On July 17, 2019, Administrative Law Judge (“ALJ”) Mary Miller Cracraft issued her decision on remand in United Farm Workers of America (Garcia), Case No. 2018-CL-003-VIS.

The ALJ entered a conclusion of law that UFW did not violate Labor Code section 1154(a)(1) and (a)(2). The ALJ also incorporated the Board’s additional remedies requiring Notice mailing and reading as well as Notices to newly-hired employees for a twelve-month period.

A PDF of the ALJ’s decision can be found at the following link: United Farm Workers of America(Garcia), Case No. 2018-CL-003-VIS.

Board Issues Decision in Reveille Farms, LLC (2019) 45 ALRB No. 6 (Case No. 2017-CE-066-SAL)

On July 3, 2019, the Agricultural Labor Relations Board (Board) issued its decision and order in Reveille Farms, LLC (2019)                             45 ALRB No. 6.

Background

On March 8, 2019, the Administrative Law Judge (“ALJ’) issued an order granting a Motion to Deem Allegations in the Complaint Admitted and granting a Motion for Default Judgment filed by the General Counsel of the Agricultural Labor Relations Board (the “ALRB” or “Board”) against Respondent Reveille Farms, LLC. (“Respondent”). The Complaint alleged that Respondent violated the Act by terminating the employment of charging party Dionicio Perez Lopez (“Lopez”) and four other workers after they engaged in activity protected by the Agricultural Labor Relations Act (“ALRA” or “Act”). The ALJ found that Respondent did not file a timely answer to the Complaint, and that Respondent did not establish good cause for its failure to do so. Accordingly, the ALJ ordered the allegations in the Complaint be deemed admitted.

Board Decision and Order

Respondent filed exceptions to the ALJ’s decision with the Board. The Board affirmed the ALJ’s order granting the General Counsel’s motion and affirmed the ALJ’s recommended order. The Board rejected Respondent’s argument that good cause supporting relief from default judgment had been established. The Board found that Respondent’s counsel’s alleged unfamiliarity with ALRB procedures and law, including the ALRA’s exclusion of farm labor contractors from the definition of agricultural employer, did not constitute good cause to support granting relief from default. The Board concluded it was not necessary to consider whether the late filing would have prejudiced the other parties to the case because good cause to excuse the untimely filing had not first been established. Finally, the Board found the alleged diligence of Respondent’s counsel after failing to timely answer the Complaint did not support a showing of good cause for granting relief from default.

A PDF of the Board’s decision can be found at the following link: Reveille Farms, LLC Case No. 2017-CE-066-SAL.

Letter of Reasonable Accessibility

A PDF of Access2online’s Letter of Reasonable Accessibility regarding the https://www.alrb.ca.gov website can be found at the following link: Letter of Reasonable Accessibility

Agricultural Labor Relations Board Website Accessibility Certification

A PDF of the Agricultural Labor Relations Board’s Website Accessibility Certification can be found at the following link: Website Certification

Board Issues Decision in David Abreu Vineyard Management, Inc. (2019) 45 ALRB No. 5 (Case No. 2017-CE-024-SAL)

On July 1, 2019, the Agricultural Labor Relations Board (Board) issued its decision and order in David Abreu Vineyard Management, Inc. (2019) 45 ALRB No. 5.

Background

The General Counsel alleged that Respondent David Abreu Vineyard Management, Inc. (“Respondent”) violated the Agricultural Labor Relations Act (the “Act”) by terminating employees Jose Manuel Campos Perez (“Jose Manuel Perez”) and Silvano Campos Perez (“Silvano Perez”) because they engaged in activities protected by the Act.  An administrative law judge (the “ALJ”) found that the employees engaged in protected activities by complaining about working conditions and by protesting the suspension of Silvano Perez.  The ALJ further found that, due to the temporal proximity between the protected activity and the terminations and the employer’s presentation of shifting or non-existent reasons for the terminations, the General Counsel established a prima facie case of unlawful motivation.  Thus, the burden of persuasion shifted to Respondent.  However, the ALJ concluded that Respondent’s proffered legitimate reasons for its actions were unworthy of belief or nonexistent and, therefore, it was unnecessary to determine whether Respondent would have terminated the employees in the absence of their protected activity.  Alternatively, the ALJ concluded that, even if it were necessary to make that determination, he would conclude that Respondent would not have terminated the employees absent their protected activity.  Accordingly, the ALJ found a violation of Labor Code section 1153, subdivision (a) and recommended a remedy.

Board Decision and Order

Respondent filed exceptions to the ALJ’s decision with the Agricultural Labor Relations Board (“Board”).  The Board affirmed the ALJ’s decision.  The Board rejected Respondent’s argument that, once the General Counsel established a prima facie case, only a burden of production shifted to Respondent, concluding that Respondent’s position was contrary to well-established precedent.  The Board also rejected Respondent’s argument that the ALJ should have treated the alleged failure of the two employees to deny that they engaged in workplace misconduct as “adoptive admissions” establishing that they did engage in such misconduct.  The Board further found that, while the ALJ has the discretion to draw an adverse inference from the absence of a witness or evidence, in this case, the employees gave credited testimony concerning some of the alleged misconduct, and, as to the remaining allegation, the ALJ discredited the witness making the allegation.

A PDF of the Board’s decision can be found at the following link: David Abreu Vineyard Management, Inc. Case No. 2017-CE-024-SAL.

Board Issues Decision in UFW(Garcia) (2019) 45 ALRB No. 4 (Case No. 2018-CL-003-VIS)

On June 19, 2019, the Agricultural Labor Relations Board (Board) issued its decision and order in UFW (Garcia) (2019) 45 ALRB No. 4.

Background

Respondent United Farm Workers of America (UFW) threatened to picket Gerawan Farming, Inc. (Gerawan) if Gerawan did not recognize and bargain with the union.  The UFW asserts it made this threat to commit an unfair labor practice from which it would then seek judicial review of the Agricultural Labor Relations Board’s (ALRB or Board) decision in Gerawan Farming, Inc. (2018) 44 ALRB No. 10.  The Board in that decision certified the results of an election by which the UFW was decertified as the exclusive bargaining representative of Gerawan’s agricultural employees.

The UFW admitted the material allegations of the General Counsel’s unfair labor practice complaint.  The administrative law judge (ALJ) granted Gerawan’s motion to intervene in the proceeding, and subsequently granted the General Counsel’s motion for judgment on the pleadings.  The ALJ rejected Gerawan’s arguments that the charging party, Agustin Garcia, did not have standing to file an unfair labor practice charge alleging a violation of Labor Code section 1154, subdivision (h).  The ALJ also denied Gerawan’s request to hold an evidentiary hearing at which it could elicit evidence concerning its allegations of collusion between Garcia and the UFW.  The ALJ thereupon granted judgment on the pleadings on each of the three causes of action alleged in the General Counsel’s complaint, and concluded the UFW’s picketing threat violated Labor Code section 1154, subdivision (h), as well as subdivisions (a)(1) and (a)(2).

Board Decision and Order

On exceptions filed by Gerawan, the Board concluded Garcia had standing to file the unfair labor practice charge.  The Board further found Gerawan was not entitled to a hearing on its allegations of collusion between Garcia and the UFW.  With respect to the causes of action alleged in the General Counsel’s complaint, the Board found the UFW’s picketing threat violated Labor Code section 1154, subdivision (h).  However, the Board reversed the ALJ’s findings that the UFW violated section 1154, subdivisions (a)(1) and (a)(2), as the undisputed allegations unfair labor practice complaint failed to establish that the UFW’s conduct violated either provision.  Accordingly, the Board remanded those causes of action to the ALJ for further proceedings consistent with its decision.  Finally, the Board reversed the ALJ’s determination that notice mailing and reading remedies were not appropriate in this case, and the Board ordered the full range of standard notice remedies based on the UFW’s violation of section 1154, subdivision (h).

A PDF of the Board’s decision can be found at the following link:UFW(Garcia) Case No. 2018-CL-003-VIS.

ALJ Issues Decision in Fowler Packing Company, Inc., Case No. 2016-CE-003-VIS

On June 13, 2019, Administrative Law Judge (“ALJ”) Mark R. Soble issued a decision in Fowler Packing Company, Inc., Case No. 2016-CE-003-VIS.

Administrative Law Judge Decision

The ALJ issued a thirty-four page decision involving an alleged unfair labor practice by Fowler Packing Company, Inc. (“Fowler”) in 2015 and 2016.  Fowler is located in the Fresno area and, during all pertinent times, grew grapes and mandarins, and sometimes also stone fruit.

On August 10, 2015, during a deposition in class action litigation, Fowler’s attorney asked one of its workers about protected, concerted activity.  Fowler again made this inquiry at a second deposition and at multiple meet and confer sessions thereafter.  The protected concerted activity was comprised of Charging Parties and their counsel meeting with other non-supervisory workers to discuss wages and hours.  Fowler specifically asked for the identity of meeting attendees and for copies of any sign-in sheets.

Fowler’s attorneys argued that the questioning was permissible under the Federal Rules of Civil Procedure.  Fowler also argued that the U.S. Supreme Court case of Epic Systems v. Lewis (2018) 138 S. Ct. 1612 (“Epic Systems”) eliminated the protected, concerted status of workers meeting to discuss wages and hours.

The ALJ noted that the U.S. District Court Judge found that, at the time of the inquiries, Fowler failed to show any need for the identity of the meeting attendees.  The ALJ then adopted and performed the three-prong test in Guess? Inc. (2003) 339 NLRB 432 (“Guess”).  The ALJ found that while Fowler had no illegal objective, the information sought was of de minimus relevance.  For that reason, when applying the balancing required by the Guess third-prong, the ALJ found the chilling effect on the willingness of workers to engage in protected, concerted activities greatly outweighed the de minimus value for Fowler to know the names of meeting attendees. 

The ALJ found that while the Epic Systems case upheld the validity of employment contracts in which workers surrendered their right to class action litigation against the company, the case did not eliminate the protected, concerted status of workers discussing wages and hours.

As a result of the findings, the ALJ found that the Fowler committed an unfair labor practice in violation of California Labor Code section 1153, subdivision (a).  The ALJ ordered the posting, mailing and reading of a notice to Fowler workers.

A PDF of the ALJ’s decision can be found at the following link: Fowler Packing Company, Inc., Case No. 2016-CE-003-VIS.

ALJ Issues Decision in UFW (Garcia), Case No. 2018-CL-003-VIS

On April 4, 2019, Administrative Law Judge (“ALJ”) Mary Miller Cracraft issued a decision in UFW (Garcia), Case No. 2018-CL-003-VIS.

Administrative Law Judge Decision

This case involves the commission of a technical unfair labor practice by a union in an attempt to seek indirect review of a decision by the Board in an underlying representation case. To achieve the technical violation, following its decertification, the union demanded to bargain and threatened to picket the employer to gain recognition. On December 28, 2018, the General Counsel issued complaint alleging unlawful demand to bargain and threat to picket for recognition. On March 1, 2019, the General Counsel moved for judgment on the pleadings. The union submitted a notice of non-opposition. The intervenor employer requested a hearing averring that the charging party and the union were engaged in collusion. Assuming that the charging party filed the charge in order to assist the union in achieving judicial review of its decertification, the administrative law judge (ALJ) found that the charging party had standing to file an unfair labor practice charge because any person may file a charge. The ALJ further found that even if the charging party assisted the union by filing the unfair labor practice charge in an effort to obtain judicial review of the union’s decertification, this did not constitute an abuse of the Board’s process and thus no hearing was required. Relying on United Farm Workers of America (Corralitos Farms, LLC) (2014) 40 ALRB No. 6, the ALJ found the viability of a technical test of decertification must be determined by the judiciary. Finding no factual conflicts, the ALJ recommended entry of judgment on the pleadings and a finding that the union violated section 1154(h) by demanding to bargain and threatening to picket for recognition. The ALJ further recommended that no mailing or reading of the Notice be required as it would not serve the public interest in a technical case.

A PDF of the ALJ’s decision can be found at the following link: UFW (Garcia) Case No. 2018-CL-003-VIS.

ALJ Issues Decision in Reveille Farms, LLC, Case No. 2017-CE-066-SAL

On March 8, 2019, Administrative Law Judge (“ALJ”) Mary Miller Cracraft issued a decision in Reveille Farms, LLC, Case No. 2017-CE-066-SAL.

Complaint issued on December 28, 2018, alleging discharge of five agricultural workers because they concertedly complained about their terms and conditions of employment. The complaint was served on Respondent’s attorney by certified mail. A return receipt acknowledged service. No answer was filed by January 10, 2019, the due date for the answer. On January 24, 2019, the General Counsel moved that all complaint allegations be deemed admitted and requested default judgment.

Respondent argued that a timely answer was not filed due to mistake, inadvertence, surprise, and/or excusable neglect. This was Respondent’s attorney’s first experience in ALRB law and he did not appreciate the significance of the farm labor contractor exclusion. Because the investigation had focused on the actions of the farm labor contractor, whose attorney was present throughout the regional office investigation, Respondent’s attorney “tendered” the complaint to that attorney for further handling. Moreover, Respondent received no warning that its answer was overdue.

The Administrative Law Judge found that the facts in AllStar Seed Company (2003) 29 ALRB No. 2 were quite similar to those present here. In AllStar as here, although the mistake of law might have been reasonable, a prudent person would have made further inquiry upon receipt of a complaint. Thus inexcusable neglect was found. Further, no surprise was found because there is no legal requirement that the General Counsel notify a respondent that the answer is overdue. Although public policy favors trial on the merits, as the Board found in AllStar, to withhold default judgment under such circumstances runs the risk of having no standards at all. Thus, finding all complaint allegations to be true, default judgment was granted.

A PDF of the ALJ’s decision can be found at the following link: Reveille Farms, LLC, Case No. 2017-CE-066-SAL.

ALJ Issues Decision in Joe Pedro & Sons Dairy, Case Nos. 2018-CE-004-VIS & 2018-CE-005-VIS

On March 1, 2019, Administrative Law Judge (“ALJ”) John J. McCarrick issued a decision in Joe Pedro & Sons Dairy, Case No. 2018-CE-004-VIS & 2018-CE-005-VIS.. The ALJ found that Joe Pedro & Sons Dairy, (the Respondent) violated sections 1152 and 1153 (a) of the Agricultural Labor Relations Act (ALRA) by threatening its employees with termination, demoting its employees and terminating its employees due to their engaging in protected concerted activity protected under section 1152 of the Act.  The protected concerted activity involved discussing terms and conditions of employment with Respondent’s supervisors. 

A PDF of the ALJ’s decision can be found at the following link: Joe Pedro & Sons Dairy, Case Nos. 2018-CE-004-VIS, et al.

Board Issues Decision in Gerawan Farming, Inc. (2019) 45 ALRB No. 3 (Case No. 2015-CE-023-VIS, et al.)

On January 24, 2019, the Agricultural Labor Relations Board (Board) issued its decision and order in Gerawan Farming Inc. (2019) 45 ALRB No. 3.

Background

Respondent Gerawan Farming, Inc. (Gerawan) maintains a workplace rule that prohibits employees from taking photographs or recordings on Gerawan’s property.  On July 24, 2014, Gerawan crew boss Martin Elizondo Cruz saw farmworker Pablo Gutierrez holding a cell phone like he was taking pictures or video-recording during his lunch break.  Elizondo reported this violation of Gerawan’s no-camera rule, and Gutierrez’s employment with Gerawan was terminated following this incident.  The administrative law judge (ALJ) found Gerawan unlawfully promulgated its no-camera rule in response to the United Farm Workers of America’s (UFW) renewed bargaining demand and increased activity in the late 2012 to 2013 timeframe.  The ALJ further found Gerawan’s termination of Gutierrez’s employment for violating this unlawfully promulgated rule also was unlawful.

Board Decision and Order

The Board considered Gerawan’s exceptions, and reversed the ALJ’s unfair labor practice findings.  The Board determined that the General Counsel did not plead or litigate a claim that Gerawan unlawfully promulgated its no-camera rule, but rather adopted a narrow theory of violation based solely on Gerawan’s ongoing maintenance of the rule.  The Board thus reversed the ALJ’s finding Gerawan unlawfully promulgated the rule because that claim was neither alleged nor fully litigated.  The Board then upheld Gerawan’s maintenance of its no-camera rule under the National Labor Relations Board’s decision in The Boeing Co. (2017) 365 NLRB No. 154.  With respect to Gerawan’s termination of Gutierrez’s employment, the Board concluded the General Counsel failed to establish a prima facie case that Gerawan terminated him in retaliation for his alleged support for the UFW.  Accordingly, the Board dismissed the unfair labor practice complaint in its entirety.

A PDF of the Board’s decision can be found at the following link: Gerawan Farming, Inc. (2019) 45 ALRB No. 3.

Board Issues Decision in GJ Farms, Inc. (2019) 45 ALRB No. 2 (Case No. 2017-CE-020-SAL)

On January 22, 2019, the Agricultural Labor Relations Board (Board) issued its decision and order in GJ Farms, Inc. (2019) 45 ALRB No. 2.

Background

On September 4, 2018, administrative law judge John J. McCarrick (the “ALJ”) issued a decision granting a Motion to Deem Allegations in the Complaint Admitted and Motion for Default Judgment filed by the General Counsel of the Agricultural Labor Relations Board (the “ALRB” or “Board”) against Respondent GJ Farms, Inc. (“Respondent”).  The Complaint alleged that Respondent violated the Agricultural Labor Relations Act (“ALRA” or “Act”) by terminating the employment of charging party Damian Fuentes (“Fuentes”) after he engaged in activity protected by the Act.  Under the Board’s regulations, Respondent was required to file an answer on or before May 24, 2018.  On June 1, 2018, the Executive Secretary of the ALRB received what Respondent styled as an answer to the Complaint.  The envelope containing the answer was postmarked May 29, 2018.  The ALJ found:  Respondent did not file a timely answer to the Complaint; Respondent failed to demonstrate good cause to excuse the untimely filing; and the answer failed to deny the allegations in the Complaint.  The ALJ ordered that Fuentes be reinstated and awarded backpay for lost wages, along with a cease and desist order and notice posting, mailing and reading remedies.

Board Decision and Order

The Board affirmed the ALJ’s finding that Respondent’s answer was untimely filed.  The Board found that Respondent’s answer was not received by the Board by the filing deadline and Respondent could not rely upon the Board’s “postmark rule” because the answer was not mailed using registered or certified mail and was not postmarked by the filing deadline.  Additionally, the Board found that Respondent failed to provide reason to excuse its untimely filing and therefore Respondent was not entitled to relief from default judgment.  In reaching these conclusions, the Board affirmed the ALJ’s decision to grant the General Counsel’s Motion to Deem Allegations in the Complaint Admitted and Motion for Default Judgment and affirmed the ALJ’s recommended order.  Because the Board found that the answer was untimely filed, it did not reach the issue of whether the answer failed to deny the allegations in the Complaint.

A PDF of the Board’s decision can be found at the following link: GJ Farms, Inc. (2019) 45 ALRB No. 2.

Board Issues Decision in Monterey Mushrooms, Inc. (2019) 45 ALRB No. 1 (Case No. 2016-CE-032-SAL)

On January 2, 2019, the Agricultural Labor Relations Board (Board) issued its decision and order in Monterey Mushrooms, Inc. (2019) 45 ALRB No. 1.

Background

Respondent Monterey Mushrooms, Inc. (“Respondent”) planned to implement a new “scaffolding” system for the harvesting of Mushrooms. It scheduled a meeting to introduce the new system to one of its crews. As the crew gathered prior to the meeting, charging party Francisco Lopez discussed the scaffolds with other employees. In the course of the conversation, he stated his opinion that the scaffolds would be difficult for shorter or smaller employees to use and that they would slow down harvesting, leading to lower wages for piece-rate employees. Supervisor Raul Aguilar approached Mr. Lopez and told him not to “opine on anything” at the meeting due to his “vocabulary” (meaning his use of profanity). An administrative law judge (the “ALJ”) credited Mr. Lopez’ account over Mr. Aguilar’s claim that Mr. Lopez was only instructed not to use profanity and concluded that, by instructing Mr. Lopez not to speak at the meeting, Respondent violated section 1153, subdivision (a)(1) of the Agricultural Labor Relations Act (the “Act’)

Board Decision and Order

The Agricultural Labor Relations Board (the “ALRB” or “Board”) considered exceptions filed by Respondent and the ALRB’s General Counsel. Respondent argued that the time card of one of the witnesses who testified showed that he could not have been present at the relevant time. The Board found it unnecessary to resolve this issue because Mr. Lopez’ account was corroborated by two additional witnesses. The Board agreed with the ALJ that Mr. Lopez was engaged in protected concerted activity when he was approached by Mr. Aguilar and Mr. Aguilar’s instruction would reasonably tend to restrain employees in the exercise of their rights under the Act. The Board rejected Respondent’s argument that the noticing remedy should be limited to directly affected employees and ordered the standard remedy calling for noticing of all Respondent’s agricultural employees. The Board corrected certain errors in the ALJ’s recommended order but otherwise adopted the order.

A PDF of the Board’s decision can be found at the following link: Monterey Mushrooms, Inc. (2019) 45 ALRB No. 1.

ALJ Issues Decision in David Abreu Vineyard Management, Inc., Case No. 2017-CE-024-SAL

On December 19, 2018, Administrative Law Judge (“ALJ”) John J. McCarrick issued a decision in David Abreu Vineyard Management, Inc., Case No. 2017-CE-024-SAL. The ALJ found that David Abreu Vineyard Management, Inc., (the Employer) violated sections 1152 and 1153 (a) of the Agricultural Labor Relations Act (Act) by terminating its employees due to their engaging in protected concerted activity protected under section 1152 of the Act. The protected concerted activity involved discussing terms and conditions of employment with Respondent’s supervisors.  A PDF of the ALJ’s decision can be found at the following link: David Abreu Vineyard Management, Inc., Case No. 2017-CE-024-SAL.

Board Issues Decision in Jacob Diepersloot, et al. (2018) 44 ALRB No. 12 (Case No. 2015-CE-027-VIS, et al.)

On November 16, 2018, the Agricultural Labor Relations Board (Board) issued its decision and order in Jacob Diepersloot, et al. (2018) 44 ALRB No. 12.

Background

On June 28, 2018, Administrative Law Judge John J. McCarrick (the “ALJ”) issued a decision granting a Motion to Deem Allegations in the First Amended Complaint Admitted and Motion for Default Judgment filed by the General Counsel of the Agricultural Labor Relation’s Board (the “ALRB” or “Board”) against Respondent Jacob Diepersloot, individually, and dba JD Farms; Jacobo D. Farms; JD Farms Management, Inc. (collectively, “Respondent”).  A First Amended Complaint alleged that Respondent violated the Act by threatening, terminating and by refusing to rehire charging party Antonio Renteria (“Renteria”) after he engaged in activity protected by the Agricultural Labor Relations Act (“ALRA” or “Act”).  Respondent did not file a timely answer to the First Amended Complaint, contending that it mistakenly believed that its agent, JSV Farm Labor, Inc. (“JSV”) was the employer, and that JSV would be “handling” the matter on Respondent’s behalf.  In finding that the Respondent did not demonstrate good cause, the ALJ ordered that Renteria be reinstated and awarded backpay for lost wages, along with a cease and desist order and notice posting, mailing and reading remedies.

Board Decision and Order

The Board found that the Respondent failed to establish good cause to excuse the untimely filed answer.  Concluding that the ALJ relied on applicable precedent in making its determination, the Board affirmed the ALJ’s decision to grant the General Counsel’s Motion to Deem Allegations in the First Amended Complaint Admitted and Motion for Default Judgment and affirmed the ALJ’s recommended order.

A PDF of the Board’s decision can be found at the following link: Jacob Diepersloot, et al.. (2018) 44 ALRB No. 12.

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.

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