Triple E Produce Corp. v. Agricultural Labor Relations Board

Dianna Lyons, Daniel A. Garcia, Francis E. Fernandez, Carmen S. Flores, Marco E. Lopez, Carlos M. Alcala, Federico G. Chavez, Ellen J. Eggers, Ira Gottlieb and Wendy Jones for Real Party in Interest.

OPINION

RICHARDSON, J.

We review a decision of respondent, the state Agricultural Labor Relations Board (ALRB or board), certifying real party in interest, the United Farm Workers of America, AFL-CIO (UFW or union), as the exclusive bargaining representative of the employees of petitioner Triple E Produce Corporation (employer). The primary questions raised are (1) whether the ALRB applied the proper standards in reviewing alleged threats made by union organizers during a representation election, and (2) whether the board's decision is supported by substantial evidence. We will conclude that the appropriate test is an objective one, and that the board's conclusion that the statements in question were mere propaganda is unsupported by the evidence. Because of the threatening nature of the statements and the circumstances surrounding their utterance, the election and ensuing certification must be invalidated.

This very extended litigation began in 1975. On October 17 of that year,…

*45 Opinion

We review a decision of respondent, the state Agricultural Labor Relations Board (ALRB or board), certifying real party in interest, the United Farm Workers of America, AFL-CIO (UFW or union), as the exclusive bargaining representative of the employees of petitioner Triple E Produce Corporation (employer). The primary questions raised are (1) whether the ALRB applied the proper standards in reviewing alleged threats made by union organizers during a representation election, and (2) whether the board’s decision is supported by substantial evidence. We will conclude that the appropriate test is an objective one, and that the board’s conclusion that the statements in question were mere propaganda is unsupported by the evidence. Because of the threatening nature of the statements and the circumstances surrounding their utterance, the election and ensuing certification must be invalidated.

This very extended litigation began in 1975. On October 17 of that year, the UFW filed with the ALRB a petition pursuant to Labor Code section 1156.3 (all further statutory references are to that code unless otherwise indicated) seeking certification as the exclusive bargaining agent…

The employer appears to have established that the well was poisoned. But we do not know how many persons drank from it.

*57 It is a regrettable fact of democratic life that we seldom achieve laboratory purity in elections. Though I do not condone such activity, unfortunately there seem to be falsehoods, hyperbole and grossly exaggerated claims in almost every campaign. To invalidate an election on those grounds there must be a showing by substantial evidence that the offending conduct was likely to have had a significant coercive or intimidating effect on those engaged in the voting process. (J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 24 [ 160 Cal.Rptr. 710 , 603 P.2d 1306 ].) The board did not conclude, as do the majority here, that the union activities “created an impermissible atmosphere of fear and coercion surrounding the balloting which rendered the election invalid.” (Ante, at p. 56.)

Therefore, while this court should disapprove the campaign tactics involved herein, I would not go as far as the majority in invalidating the election and certification—yet. I would annul and remand to the board with directions to take additional testimony to…

I dissent. I do not object to the majority’s announced test for review of campaign threats—“whether the statements would reasonably tend to interfere with or restrain employees in the exercise of their rights guaranteed by the Act.” (Jack Brothers and McBurney, Inc. (1978) 4 A.L.R.B. No. 18 at p. 3.) However, in applying the test, the majority violates a fundamental principle of judicial review in substituting its own judgment for that of the board in order to justify the attack on findings supported by substantial evidence. The majority freely acknowledges that “[t]he findings of the board with respect to questions of fact if supported by substantial evidence on the record as a whole shall ... be conclusive.” (Lab. Code, § 1160.8; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 345 [ 156 Cal.Rptr. 1 , 595 P.2d 579 ].) There is substantial evidence in the record to support the conclusion that employees would consider the statements to be campaign propaganda which the union could not effectuate, and the board did not abuse its discretion in concluding in effect that the statements did not reasonably tend to interfere with the employees’ free…