Opinion
Review Granted Oct. 17, 1985.
Opinions on pages 1173-1212 omitted.
[215 Cal.Rptr. 777]Stanley E. Tobin, James G. Johnson, Hill, Farrer & Burrill, Los Angeles, for petitioner.
Manuel M. Medeiros, Solicitor of the Board, Daniel G. Stone, Chief Deputy Solicitor, Nancy C. Smith and Ismael A. Castro, Deputy Solicitors, Sacramento, for respondent Agricultural Labor Relations Bd.
Dianna Lyons, Daniel A. Garcia, Wendy Stones, Sacramento, for real party in interest United Farm Workers of America, AFL-CIO.
ANDERSON, Presiding Justice.
This case arises from a challenge to the validity of an agricultural worker representation election. Three principal issues are presented: (1) objections to the election which were dismissed by the Agricultural Labor Relations Board (ALRB or Board) without a hearing; (2) the rejection of those objections which were heard; and (3) the propriety of imposing the make-whole sanction upon petitioner Robert J. Lindeleaf (Lindeleaf). Since we hold that the Board's procedure in ruling on the objections was improper and remand for reconsideration by the Board, we do not address the propriety of the imposition of the make-whole sanction.
Facts
On August 29, 1980, the United Farm Workers of America (UFW) filed a petition with the ALRB, seeking certification as the exclusive bargaining representative of all the agricultural employees of Lindeleaf. An election was held on September 4, 1980, in two locations at separate times and the UFW won.
The results of the election were as follows: UFW--71; no union--35; void--1; challenged ballots--4.
The difference between the ALRA and the National Labor Relations Act (NLRA) (see 29 U.S.C. § 151 et seq.) was underlined: "The principal difference between the federal and state law is that under the NLRA and NLRB regulations, the regional director is required to investigate factual allegations concerning election misconduct prior to deciding whether a hearing is appropriate (29 U.S.C. § 159(c); 29 C.F.R. § 102.69(c) and (d) (1978)[ ) ], whereas under the ALRA and ALRB regulations the burden is on the objecting party to present adequate factual declarations in support of his allegations before a hearing will be held (Lab.Code, § 1156.3, subd. (c); Cal.Admin.Code, tit. 8, § 20365)...." (J.R. Norton Co., supra, 26 Cal.3d at p. 16, fn. 8, 160 Cal.Rptr. 710, 603 P.2d 1306.)
Pursuant to Labor Code section 1156.3, subdivision (c), Lindeleaf filed 11 objections which he alleged warranted setting aside the election. The ALRB executive secretary reviewed the objections and summarily dismissed certain of these and certain portions of others. Lindeleaf filed a request for review of that part of the order which dismissed his election objections, and the Board partially granted his request and set four issues for hearing.
All statutory references hereafter are to the Labor Code unless otherwise designated.
This argument by petitioner presents an issue that cannot be deemed frivolous. However since that issue was not raised in his petition for a writ of review it is in my view irrelevant to the determination of whether sanctions should be imposed upon petitioner for the filing of a frivolous petition before this court. (See infra, p. 789.)
The issues ultimately set for hearing were as follows: "1. Whether the UFW organizers or supporters threatened the Employer's workers with physical violence and job loss if they failed to sign authorization cards or support the union and, if so, whether such threats created an atmosphere in which the employees were not able to freely exercise their choice of a collective bargaining agent. [p] 2. Whether Board agents abused their discretion by allowing a UFW organizer to jump on the Employer's tomato harvester, walk on the harvester and talk to the workers on the harvester while the organizer was attempting to secure an observer for the tomato field polling site, and, if so, whether such abuse of discretion affected the outcome of the election. [p] 3. Whether a Board agent said at the pre-hearing conference that, if there were more than a few challenges to votes, the Board agents would ignore the challenges and continue with the voting because noting the challenges takes too long, and whether Board agents abused their discretion in checking voter identification and refusing challenges at the election." However, no evidence will be heard concerning the rejection of challenges asserted by the Employer's observers because the voter was not a member of the permanent crew. "4. Whether UFW organizers violated the access regulations of the Agricultural Labor Relations Board, 8 Cal.Admin.Code section 20900, et seq., and whether such violations of the access regulations, in combination with misconduct alleged in the objections heretofore set for hearing, created an atmosphere in which the employees were not able to freely exercise their choice of a collective bargaining representative in the election."
An examination of documents filed with the Supreme Court prior to its order depublishing the decision upon which petitioner relies establishes that the issue was not raised by any of the parties to that case either in briefing or at oral argument but was the spontaneous work product of the panel of the Court of Appeal that rendered the now legally nonexistent decision.
[215 Cal.Rptr. 778]That hearing was conducted by an "Investigative Hearing Examiner" (IHE), who concluded that the election "was not tainted, and the employees of Employer were not deprived of the opportunity to exercise their free choice in that election." She recommended that the UFW be certified and the Board decided to "affirm the IHE's rulings, findings and conclusions and to adopt her recommendations" and certified the UFW as the exclusive collective bargaining representative. (Robert J. Lindeleaf (Mar. 23, 1982) 8 ALRB No. 22.)
Rather than accede to the ALRB's certification decision without judicial review, Lindeleaf utilized the only procedure available to secure judicial review and refused to bargain with the UFW; the UFW thereupon filed with the Board a charge of unfair labor practices. ( § 1153, subds. (a), (e).) On stipulated facts, an evidentiary hearing having been waived, the Board found Lindeleaf's refusal to bargain was indeed an "unfair labor practice," ordered the parties to bargain in good faith and imposed the "make-whole" sanction--that Lindeleaf must reimburse the employees "for all losses of pay and other economic losses they have suffered as a result of Respondent's [Lindeleaf's] failure and refusal to bargain in good faith with the UFW...." (Robert J. Lindeleaf (June 14, 1983) 9 ALRB No. 35.)
Lindeleaf, thereafter, filed a timely petition for writ of review before this court.
I. Those Objections Dismissed Summarily Without Hearing
The ALRB need not hold a full evidentiary hearing on every objection raised to an election. In J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306, the Supreme Court upheld regulations of the ALRB requiring that the petition objecting to the election must "be accompanied by a declaration or declarations setting forth facts which, if uncontroverted or unexplained, would constitute sufficient grounds for the Board to refuse to certify the election." (Cal.Admin.Code, tit. 8, § 20365.) In so doing, the court concurred in the view expressed by the Court of Appeal in Radovich v. Agricultural Labor Relations Bd. (1977) 72 Cal.App.3d 36, 45, 140 Cal.Rptr. 24: " 'Otherwise, naked assertions of illegality unclothed with the raiments and accouterments designed to protect against an onslaught of inconsequential or frivolous or dilatory acts unsupported by even the undergarments of a prima facie case would frustrate the state policy as set forth in Labor Code section 1140.2." [Fn. omitted.]" (J.R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 17, 160 Cal.Rptr. 710, 603 P.2d 1306.)
In attacking the dismissal of certain of its objections without an investigation and hearing, Lindeleaf first contends that he was denied due process because the executive secretary and not the Board reviewed the executive secretary's decision. The executive secretary makes the original determination as to whether objections to an election should be heard. Administrative regulations adopted by the Board then provide that "An order of the executive secretary dismissing portions of the [objections] petition ... shall be subject to Board review...." (Cal.Admin.Code, tit. 8, § 20365, subd. (f).) Lindeleaf apparently believes that the Board did not review the decision of the executive secretary because the executive secretary signed the order by which the Board acted on petitioner's request for review. This order, however, recites that it was "By Direction of the Board." Lindeleaf has set forth no facts to overcome the presumption that "official duty has been regularly performed." (Evid.Code, § 664.)
Applying the requirement that the objector's declarations must constitute sufficient ground to refuse certification (Cal.Admin.Code, tit. 8, § 20365, subd. (c)(2)), we conclude that three of Lindeleaf's objections [215 Cal.Rptr. 779] definitely are supported by declarations which do warrant hearing by the Board.
First, we conclude that Lindeleaf's declarations concerning electioneering at and around the election polling area were adequate to require a hearing. Five declarants stated that John Brown, a union organizer, was seen handing out union leaflets in a quarantined area as the voting was about to commence. (A quarantined area is one set aside by the polling officials as off-limits to electioneering at the time of balloting.) In addition, Alma Alvarez declared that "I had to keep asking the ALRB representatives to keep people away from the voting area because they were piling up and crowding around and the union observers were talking to them about voting in favor of the union.... In the quarantine area, I not only saw the observers talking to the voters, but there was a union representative handing out blue cards or leaflets to the voters urging them to vote in favor of the union."
Lindeleaf urges adoption of a per se rule which would require an election to be set aside upon a finding of any improper electioneering. The authority he relies on is Milchem, Inc. (1968) 170 NLRB 362, a case in which the NLRB overturned an election because a union representative had engaged in conversations with employees waiting to vote at the polling place, even though the content of the conversations was unknown. The NLRB explained at page 362: "[T]he potential for distraction, last minute electioneering or pressure ... between representatives of any party to the election and voters waiting to cast ballots is of sufficient concern to warrant a strict rule against such conduct, without inquiry into the nature of the conversations. The final minutes before an employee casts his vote should be his own, as free from interference as possible. Furthermore, the standard here applied insures that no party gains a last minute advantage over the other, and at the same time deprives neither party of an important access to the ear of the voter. The difficulties of recapturing with any precision the nature of the remarks made in the charged atmosphere of a polling place are self-evident, and to require an examination into the substance and effect of the conversations seems unduly burdensome and, in this situation, unnecessary. Finally, a blanket prohibition against such conversations is easily understood and simply applied."
"Subsequent Board decisions have emphasized that the Milchem strict rule against electioneering applies only where the objectionable conversations were prolonged, see Cumberland Nursing & Convalescent Center, 248 N.L.R.B. 322 (1980), and the conversations occurred at the polling place itself or while the employees were waiting in line. See Pastoor Brothers Co., 223 N.L.R.B. 451 (1976); Harold W. Moore & Son, 173 N.L.R.B. 1258 (1968); Marvil International Security Inc., 173 N.L.R.B. 1260 (1968). Where these precise factors are not present, the Board 'makes a judgment, based on all the facts and circumstances, whether the electioneering substantially impaired the exercise of a free choice so as to require the holding of a new election.' Glacier Packing Co., 210 N.L.R.B. 571, 573 n. 5 (1974); see also Moore, supra." (Boston Insul. Wire & Cable Systems v. N.L.R.B. (5th Cir.1983) 703 F.2d 876, 881.)
The Lindeleaf declarations specifically and unequivocally revealed that the UFW was electioneering in a quarantined area as the election was about to begin--both by leafletting and conversations with voters. These declarations are sufficient to require a hearing to determine the full extent of the electioneering and the effect on voters. "Where the Board certifies the union without the benefit of either a hearing or the full record, we will construe the 'well pleaded factual assertions ... most favorably to [the excepting party.]' " (N.L.R.B. v. Belcor, Inc. (9th Cir.1981) 652 F.2d 856, 859.) "The employer is not required to prove his case in order to obtain a hearing." (Valley Rock Products, Inc. v. N.L.R.B. (9th Cir.1979) 590 F.2d 300, 303.)
Next we turn to declarations concerning post-election conduct. Jesus Olivares, a supervisor, [215 Cal.Rptr. 780] declared that immediately after the election, pro-union employees began to shout that they had won and now workers unsympathetic to the union would lose their jobs. Olivares stated that after the election a woman worker wanted to change her name and identification. Robert J. Lindeleaf declared that the day after the election he received a letter from two workers who had left his employ stating that union organizers had told them that if they did not vote for the union, they would lose their jobs. The Board now asserts that allegations of post-election conduct do not warrant a hearing because conduct occurring after the election could not have affected the election results. However, it certainly is reasonable to infer from the past election statements of pro-union workers, such threats of job loss were also conveyed to workers before the election. The allegations concern the very essence of a free election and should have been heard.
The third objection which we conclude warrants further investigation and hearing, concerns rejection of Carlos Acevedo as an election observer. The Board dismissed the objection on the ground that the declarations in support did not indicate that Acevedo was a non-supervisory employee and on the further ground that the declarations did not indicate that the employer was prejudiced by the disqualification or that the disqualification affected the results of the election. The record, however, is quite the contrary. For the declaration of Carlos Acevedo reads: "... I have not been employed in a supervisor capacity during the time I worked for Mr. Lindeleaf. My father has been a foreman for Mr. Lindeleaf.". Were this the sole objection to the election, it might be reasonable to require a statement concerning what effect disqualification had upon the election. However, this was but one of many allegations of ALRB pro-union bias. A cumulation of isolated minor acts of discrimination when committed together often creates an atmosphere which does influence the voter to support the side which the ALRB favors. The Board should be sensitive to such allegations and careful to investigate their cumulative effect. Their duty of objectivity is not discharged by summary rejection.
We turn next to Lindeleaf's assertion that the Board improperly dismissed its objection alleging that "in the instant election [the employees] were part of a roving electorate, going from one employer to another and voting in successive elections." Petitioner contends that such conduct "suggests fraudulent and/or manipulative conduct." The declaration in support of Lindeleaf's objection is that of supervisor for the labor contractor, Jesus Olivarez, in which Olivarez states that he knew people (26 whom he named) who voted at the Lindeleaf election "who also voted in other elections." The Board dismissed that objection because "there is no allegation that any employees who voted in the election on the Employer's property did not work during the relevant payroll period or were otherwise ineligible to vote in the election."
While the Board may have been technically correct in such a narrow interpretation of the declaration, we question the wisdom of not investigating further. Given the obvious merit of the other objections and the appearance of bias in summarily dismissing an allegation whose only reasonable interpretation is one of fraud, the more prudent course would have been to include such allegations in the hearing process.
We agree with the Board, however, that the timing of the election required no hearing. The Agricultural Labor Relations Act requires that elections be held within a maximum of seven days following the filing of the petition. ( § 1156.3, subd. (a)(4).) The election was held on the sixth day and the declarations complaining thereof do not state that this did not give Lindeleaf adequate time to prepare. Similarly, there was no legal basis for Lindeleaf's objection that the permanent crew and the labor contractor employees should have voted in separate bargaining units; section 1156.2 clearly provides that "The bargaining unit shall be all the agricultural employees of an employer."
[215 Cal.Rptr. 781]And finally, Lindeleaf objected to the election on the ground that the Board's agent determined that there was sufficient authorization without checking the cards against the list of petitioner's employees. The Board was correct, however, in recognizing that a defect in the "showing of interest" pursuant to section 1156.3 is not a ground for challenging an election. (Nishikawa Farms, Inc. v. Mahony (1977) 66 Cal.App.3d 781, 791-793, 136 Cal.Rptr. 233.)
II. Those Objections Dismissed After Hearing
Section 1156.3, subdivision (c), provides for a hearing on objections to a representation election: "[T]he board, upon due notice, shall conduct a hearing to determine whether the election shall be certified. Such hearing may be conducted by an officer or employee of a regional office of the board. He shall make no recommendations with respect thereto. If the board finds, on the record of such hearing, that any of the assertions made in the petition filed pursuant to this subdivision are correct, or that the election was not conducted properly, or misconduct affecting the results of the election occurred, the board may refuse to certify the election. Unless the board determines that there are sufficient grounds to refuse to do so, it shall certify the election."
Disregarding such clear legislative direction, the ALRB has promulgated a regulation that forbids appointment of an official or an employee of a regional office to act as hearing officer, requires its hearing officer to make the initial decision, and relegates the Board to the function of a reviewing body. Thus, while the statute specifically requires the Board to conduct a hearing to determine whether the election should be certified, the Board has adopted a regulation which unequivocally prohibits what the statute specifically permits: the appointment of an official or employee of a regional office to conduct such hearing. Further, the regulation adopted by the Board specifically requires what the statute unequivocally forbids: that the hearing officer make recommendations.
Only if the answer is yes need we make determinations concerning delegation or why it took so long to find this error which presumably goes to the roots of every decision of the Board certifying or decertifying elections since the ALRA was enacted in 1975.
California Administrative Code, title 8, section 20370, subdivision (a), provides: "No person who is an official or an employee of a regional office shall be appointed to act as an investigative hearing examiner."
An examination of the language and legislative history of the analogous provision in the NLRA, upon which the ALRA is modeled, gives further support to this interpretation of Labor Code section 1156.3, subdivision (c). The NLRA provides that a hearing to determine whether a question of representation exists "may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto...." (See 29 U.S.C. § 159, subd. (c)(1), emphasis added.) This provision was added to the NLRA by amendment in 1947. Prior to the amendment NLRB "[r]egional office personnel [sat] as hearing officers in representation cases and [made] a comprehensive report and recommendation to the Board at the close of such hearing." (Sen.Rep. No. 105, 80th Cong., 1st Sess., p. 25 (1947).)
Section 1156.3, subdivision (c), provides: "Such hearing may be conducted by an officer or employee of a regional office of the board."
California Administrative Code, title 8, section 20370, subdivision (f), provides: "Within a reasonable time after the close of taking of testimony, the investigative hearing examiner shall issue an initial decision including findings of fact, conclusions of law, a statement of reasons in support of the conclusions, and a recommended disposition of the case."
Section 1156.3, subdivision (c) provides in pertinent part: "... He shall make no recommendations with respect thereto."
By this writ, and for the first time Lindeleaf now challenges these regulations as in conflict with section 1156.3, subdivision (c). But should this court address this issue which was not first raised below? We recognize the general rule that objections not raised before the Board are waived. (See, e.g., Nish Noroian Farms v. Agricultural Labor Relations Board (1984) 35 Cal.3d 726, 737, 201 Cal.Rptr. 1, 677 P.2d 1170.) However, this rule may be relaxed where, as here, the issue involves a matter of public interest and is purely a question of law. (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167, 143 Cal.Rptr. 633; Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 4-5, 97 Cal.Rptr. 431.) In the instant case, to have made the complaint before the Board would have been futile since the complaint challenged a regulation promulgated by that very Board. Since the issue has been fully noticed to and argued by all interested parties and amicus herein, we entertain the challenge and address its merits.
The adoption of such regulations which so clearly contravene the statutes [215 Cal.Rptr. 782] effectively vitiates the intent of the Legislature. For it clearly appears that the Legislature intended that the Board and not a functionary make this important finding; and it is equally clear that the Board should do so only after itself reviewing the evidence, not the findings and recommendations of a functionary.
Section 1156.3, subdivision (c), states: "If the board finds, on the record of such hearing, that any of the assertions made in the petition filed pursuant to this subdivision are correct, ... the board may refuse to certify the election." (Emphasis added.)
By providing that its hearing officer will make the initial decision as to whether an election should be certified over objection, the Board has delegated its quasi-judicial role bestowed upon it by our Legislature. "[P]ublic agencies may delegate the performance of ministerial tasks, including the investigation and determination of facts preliminary to agency action." (California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 144, 89 Cal.Rptr. 620, 474 P.2d 436.) However, "powers conferred upon public agencies and officers which involve the exercise of judgment or discretion are in the nature of public trusts and cannot be surrendered or delegated to subordinates in the absence of statutory authorization. [Citations.]" (Ibid.; Civil Service Assn. v. Redevelopment Agency (1985) 166 Cal.App.3d 1222, 213 Cal.Rptr. 1.)
The Board purports to find authority in section 1145 which provides that the Board may appoint hearing officers, and section 1144 which provides that the Board may make rules and regulations. The Board has gone far beyond this general authorization, however, and has created a review system akin to that which the Legislature enacted for the Workers' Compensation Appeals Board. In that legislative scheme, the hearing officer makes the award and the Board in its review capacity becomes the ultimate finder of fact. (See § 5900 et seq.) If the Legislature had intended to enact a comparable procedure for processing these disputes, it obviously knew how to do so. Instead, it forbids the hearing officer from making even a recommendation to the Board; wherein lies the authority for that officer to make the entire decision? The Board contends that this preclusion from recommending applies only to a hearing officer who is an officer or employee of a regional office and not to any other hearing officer. The Board's interpretation conforms to the grammatical structure of the two sentences: "Such hearing may be conducted by an officer or employee of a regional office of the board. He shall make no recommendations with respect thereto." (Emphasis added.) The word "he" commencing the second sentence must refer to the "officer or employee" of the first sentence. The Board's interpretation, however, ignores the context in which the sentences are placed. "A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed." (2A Sutherland Stat. Const. (4th ed.) § 46.05, p. 90, fns. omitted.) The Legislature's intent in subdivision (c) of section 1156.3 to have the Board act as the decision-maker is clear. In light of this intention, we think a more reasonable interpretation of the sentences in question would be that the Legislature, recognizing that it had specifically provided for a broad range of powers for regional offices ( § 1142), wanted to make clear that even regional officers and employees could not make recommendations to the Board, rather than that such limitations in making recommendations applied only to such regional officers and employees.
The Board, in adopting regulations providing that no officer or employee of a regional office shall be appointed a hearing officer in certification disputes and that hearing officers may make the decision on certification, adopts and follows a procedure in direct contravention of statute. If the Board questions the wisdom of requiring [215 Cal.Rptr. 783] it (and forbiding a hearing officer) to make a finding "on the record of such hearing," it should seek relief or further direction from the Legislature and not from misuse of its rule-making powers.
Since it is clear from the record that the hearing officer in this case made recommendations and that these recommendations guided the Board in its review of the record, we annul the decision of the Board and remand for further consideration in conformity with the views expressed in this opinion. Hearing will be required on those objections improperly summarily dismissed; reconsideration of the record must be accomplished without reference to "Findings of Fact," "Conclusion," or "Recommendation" submitted by the "Investigative Hearing Examiner."
In performing its judicial function of review the Board is neither advocate for farmer, nor union, nor hearing officer. It must discharge its statutory duty independent of each and dependent only upon traditional adherence to fairness. The law specifically requires that all employees appointed by the Board shall "perform their duties in an objective and impartial manner...." (See § 1145, emphasis added.) We expect no less from their employer--the Board.
CHANNELL, J., concurs.
POCHE, Associate Justice, dissenting.
The majority opinion, as I read it, makes two conclusions: (1) that three of petitioner Robert J. Lindeleaf's objections, summarily rejected by the Agricultural Labor Relations Board (ALRB), must be subjected to a full hearing; and (2) that the entire order of the ALRB, including certification of the election and imposition of a make-whole remedy, must be annulled because hearing officers--rather than the ALRB itself and in person--conducted hearings in this matter and made recommendations.
In my view, today's decision is lacking in both factual and statutory support, and if allowed to stand, will involve the ALRB, agricultural employers, employees and labor unions in undiluted administrative chaos at great and unnecessary cost to the taxpayers of this state. Accordingly, I dissent.
I.
Objections dismissed for failure to set forth a prima facie claim
This court determines that three of petitioner's objections to the election which were dismissed without a hearing are "definitely ... supported by declarations which do warrant hearing by the Board." (Majority opn., ante, at p. 779.)
The ground rules are neither complex nor difficult to understand. The meshing of the applicable statutes and regulations was both elucidated and expressly approved by the California Supreme Court in J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306. Relevant here are three aspects of that decision:
(1) The Norton court described the objection review process of the ALRB as follows: "The ALRB has promulgated a detailed regulation for the implementation of section 1156.3, subdivision (c). (Cal.Admin.Code, tit. 8, § 20365.) The regulation sets forth the threshold prerequisites that must be met before an objecting party will be entitled to a formal evidentiary hearing. Among these prerequisites is the provision that when a person 'alleges that the election was not conducted properly or that misconduct occurred affecting the results of the election,' the petition objecting to the election must 'be accompanied by a declaration or declarations setting forth facts which, if uncontroverted or unexplained, would constitute sufficient grounds for the Board to refuse to certify the election.' If the declarations do not establish a prima facie case with respect to some or all of the petition's objections, the regulations directs the executive secretary of the ALRB to dismiss the insufficient objections without a hearing; in the event of a dismissal, the regulation explicitly permits the objecting party to appeal the executive secretary's [215 Cal.Rptr. 784] action to the Board." (J.R. Norton Co., supra, at pp. 12-14, 160 Cal.Rptr. 710, 603 P.2d 1306, emphasis in original, fns. omitted.)
(2) The court emphasized that under the Agricultural Labor Relations Act (ALRA) the burden of presenting substantial and material facts to warrant the scheduling of an evidentiary hearing rests solely on the objecting party. 1
(3) The court concluded that this procedure was essential to avoid frustration of the policy of the ALRA: "The foregoing analysis leads us to conclude that Labor Code section 1156.3, subdivision (c), does not require the Board to hold a full hearing in every case in which a party merely files a petition objecting to the conduct of a representation election. Rather, it is permissible for the ALRB to promulgate reasonable rules and regulations setting forth a requirement that a prima facie case must be presented in objections and supporting declarations before a hearing will be held concerning election misconduct. We thus concur in the view expressed by the Court of Appeal in Radovich v. Agricultural Labor Relations Bd. (1977) 72 Cal.App.3d 36, 45, 140 Cal.Rptr. 24: 'Otherwise, naked assertions of illegality unclothed with the raiments and accouterments designed to protect against an onslaught of inconsequential or frivolous or dilatory acts unsupported by even the undergarments of a prima facie case would frustrate the state policy as set forth in Labor Code section 1140.2.' [Fn. omitted.]" (J.R. Norton Co., supra, at p. 17, 160 Cal.Rptr. 710, 603 P.2d 1306.)
Today this court finds, in effect, that a petitioner need not wear or display the undergarment of a prima facie case. A petitioner can apparently run naked to this court, and is encouraged to do so.
A. The first objection: pre-election activity
The first of the three objections determined by this court to be "definitely" supported by declarations which do warrant hearing by the Board (majority opn., ante, p. 779) is that concerning electioneering at and around the election polling area.
Review of petitioner's declaration reveals only that electioneering by union organizers and observers is alleged to have occurred around the polling area before balloting began.
Specifically, John Brown, a United Farm Workers of America (UFW) organizer, is alleged to have handed out UFW leaflets to employees who were coming to the polling area or waiting for the voting to begin. There is absolutely no evidence that Brown or anyone else continued to hand out leaflets during the actual voting.
Until today it was well settled that electioneering at and around the polling area prior to the opening of the polls will not warrant the setting aside of an election in the absence of coercion or other objectionable conduct. (O.P. Murphy & Sons (1977) 3 A.L.R.B. No. 26, at p. 7; United Celery Growers (1976) 2 A.L.R.B. No. 27, at p. 5; Admiral Packing Co. (1975) 1 A.L.R.B. No. 20, at p. 5.) The declarations submitted by petitioner even as read by my majority colleagues do not provide such evidence and therefore do not state a prima facie case upon which relief can be granted. If this court is marching to a new drummer and is repudiating the old tunes with respect to the elements of a prima facie case it has in my opinion an obligation [215 Cal.Rptr. 785] to say so and to explain its reasons. Neither has occurred.
B. The second objection--post-election activity
The declarations underlying the second objection aver that after the election union supporters stated that those employees who had not been sympathetic to the union would lose their jobs. There is no showing as required by the ALRB's regulations--approved by the Supreme Court in Norton --how this post-election conduct affected the results of the election.
My colleagues ignore the regulations and supply the showing in the following language: "... it certainly is reasonable to infer from the past election statements of pro-union workers, such threats of job loss were also conveyed to workers before the election." (Majority opn., ante, p. 780 first emphasis added.) That judicial speculation rewrites the affidavits.
C. The third objection--choice of observer
The final objection that this court finds merits a hearing is that concerning petitioner's choice of an election observer. Petitioner contends he was "precluded" from having Carlos Acevedo--a nonsupervisor--act as his election observer. The Board dismissed this objection on the ground that "... the declarations submitted in support of this objection do not indicate that Carlos Acevedo, the person chosen by the Employer, was a non-supervisory employee of the Employer or a person agreed to by all parties in writing, 8 Cal.Admin.Code section 20350(b), nor do they indicate that the employer was prejudiced by the disqualification of the observer, that the disqualification affected the results of the election, or that the Board agent acted improperly by not allowing Acevedo to serve as an observer, [citations omitted]."
Petitioner provides neither factual nor legal analysis to support his contention that the Board erred. As I read petitioner's brief it concedes that his declarations do not show how it was prejudiced or how the election was affected by Acevedo's absence. As with petitioner's other objections, that defect is fatal because to warrant a hearing a prima facie showing of an affect on the election must be submitted by the employer upon filing its objections. (Cal.Admin.Code, tit. 8, § 20365; see J.R. Norton Co., supra, at pp. 12-14, 17-18, 160 Cal.Rptr. 710, 603 P.2d 1306.) Because no such showing was presented, the Board properly dismissed this objection without hearing.
Thus, with respect to each of the three objections there is not even colorable compliance by petitioner with the threshold requirement approved explicitly by the Supreme Court in J.R. Norton Co., that the petition objecting to the election " 'be accompanied by a declaration or declarations setting forth facts which, if uncontroverted or unexplained, would constitute sufficient grounds for the Board to refuse to certify the election.' " (Id., at p. 13, 160 Cal.Rptr. 710, 603 P.2d 1306, emphasis in original.)
For these reasons I would affirm the Board's dismissal of all of petitioner's objections, not just the few that the majority opinion finds absolutely lacking in merit. In short I find that each and every objection to be, as a matter of fact and law, lacking in merit.
II.
Use of investigative hearing officer
A. Exhaustion of administrative remedies
Can petitioner protest for the first time in this court the ALRB's delegation of investigative hearing examiner functions or the making of recommendations by the hearing examiner? Petitioner made no mention of either of these matters in the proceedings before the ALRB nor did petitioner mention any such problems in his petition to this court for a writ of review filed in July 1983. Only in his "CITATION TO SUPPLEMENTAL RELEVANT AUTHORITY" [215 Cal.Rptr. 786] 2 filed with this court on December 20, 1984, does petitioner raise this issue and then only by way of reference to a decision of the Court of Appeal subsequently depublished by order of the Supreme Court of California.
Under Labor Code section 1160.8, the doctrine of exhaustion of administrative remedies is made applicable to review of ALRB decisions. No exhaustion occurred here: the administrative agency was given no opportunity whatsoever to address these issues which involve interpretation of its own regulations and the statutes that govern it. The reason is pretty clear why this happened: in the entire history of the ALRA it never occurred to anyone but the members of the panel that rendered the now unpublished opinion upon which petitioner attempts to rely that there was any problem with the ALRB's practice regarding the use of investigative hearing examiners. 3
So, although petitioner here did not even begin to use--much less exhaust--his administrative remedies one can sympathize with his reasons for failing to do so: since he and all his predecessors in the history of the ALRA had no reason to suspect there was a problem there was no reason to ask the ALRB for a remedy.
It is not new wisdom that a petitioning party must raise objections before the ALRB before they will be considered on review. The California Supreme Court has repeatedly stressed the point. (See Carian v. Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654, 668, fn. 6, 205 Cal.Rptr. 657, 685 P.2d 701 [issue waived "inasmuch as Carian did not argue the res judicata or collateral estoppel effect of this determination ... with the board...."]; Nish Noroian Farms v. Agricultural Labor Relations Bd. (1984) 35 Cal.3d 726, 737, 201 Cal.Rptr. 1, 677 P.2d 1170 [objection waived where not raised first to the Board]; accord Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 756, fn. 6, 759, fn. 8, 195 Cal.Rptr. 651, 670 P.2d 305, cert. den. (1984) --- U.S. ----, 104 S.Ct. 2345, 80 L.Ed.2d 819; see also Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 971, 157 Cal.Rptr. 476.) Obviously, this requirement is especially appropriate where, as here, the tardy challenge goes to the ALRB's own regulations--regulations which have governed administrative proceedings for years without any such attack. Thus petitioner waived the claim and the issue is not properly before this court.
Although there are exceptions to the exhaustion requirement, no exception is applicable here. This is not a case where the administrative remedy is either nonexistent or inadequate: the ALRB is authorized to "make, amend, and rescind" regulations. (Lab.Code, § 1144.) Nor does the futility exception have application. Petitioner has not established how the ALRB would respond to a challenge to the propriety of its regulation.
All we are left with is the finding by the majority that "to have made the complaint before the Board would have been futile since the complaint challenged a regulation promulgated by that very Board." (Majority opn., ante, p. 782.) So much for the doctrines of exhaustion of administrative remedies and deference to administrative agencies.
Because petitioner has not exhausted his administrative remedies--has not even tried them--he is not entitled to a response from this court to the arguments he takes from the body of the depublished Court of Appeal decision.
[215 Cal.Rptr. 787]B. The merits
However, I address those issues not only because the majority opinion does so but because the decision of this court has application far beyond this immediate case. As I read the majority opinion it puts in obvious jeopardy each and every decision of the ALRB not yet final which either certifies or decertifies an election. Irrespective of whether union or employer won the election new hearings are required by the majority's rationale if investigative hearing officers were involved in making recommendations. Additionally, the petitioning party--like petitioner here--has no obligation to even use administrative remedies but can petition this court for relief--and get it.
The determination of this court--indistinguishable to me from the earlier depublished opinion--which annuls the certification of the election is premised on a conclusion that the ALRB illegally delegated decision making powers to an independent hearing officer it appointed. That determination rests on a single reed: that the Legislature has forbidden all hearing officers appointed by the Board from making "even a recommendation to the Board; ..." (Majority opn., ante, pp. 782-783.) So, the question is did the Legislature really do that. 4 The answer is: it certainly did not.
The statute in question is Labor Code section 1156.3, subdivision (c), which provides: "... Upon receipt of a petition under this subdivision, the board, upon due notice, shall conduct a hearing to determine whether the election shall be certified. Such hearing may be conducted by an officer or employee of a regional office of the board. He shall make no recommendations with respect thereto...." (Emphasis added.)
Ignoring normal rules of grammar this court reads the pronoun he (in "[h]e shall make no recommendations") not as referring to the immediately preceding nouns ("an officer or employee of a regional office of the board") but to any person who conducts a certification hearing. The ALRB has always construed that clause as referring only to hearing officers who are officers or employees of a regional board office. The ALRB understands that language to be a legislative attempt to avoid conflicts of interest that might arise if regional office personnel sat as hearing officers. In such a situation the hearing officer (i.e., "[h]e") is absolutely prohibited from making "recommendations" with respect to such a hearing. Since no such conflict would be likely to arise when a person who is not an officer or employee of a regional office sits as a hearing officer the Legislature did not prohibit such a person from making findings or recommendations. Such interpretation mirrors the analogous provision in the NLRA. (See 29 U.S.C. § 159, subd. (c)(1).) 5
Acting out of an abundance of caution to absolutely prevent the type of conflict that [215 Cal.Rptr. 788] the Legislature was worried about the ALRB enacted regulations which prohibit any employees or officers of a regional office from sitting as hearing officers period: "... No person who is an official or an employee of a regional office shall be appointed to act as an investigative hearing examiner." (Cal.Admin.Code, tit. 8, § 20370, subd. (a).)
This process of appointing hearing officers in order for the Board to properly perform its duties under Labor Code section 1156.3, subdivision (c) has been noted and tacitly approved by the California Supreme Court. (See J.R. Norton Co., supra, 26 Cal.3d at p. 10, 160 Cal.Rptr. 710, 603 P.2d 1306 ["examiner concluded that the employer's objections to the election were without merit and prepared an opinion recommending that the UFW be certified...."]; Triple E Produce Corp. v. Agricultural Labor Relations Bd. (1983) 35 Cal.3d 42, 46, 196 Cal.Rptr. 518, 671 P.2d 1260 ["... IHE recommended dismissal of the two objections and the board ... adopted this recommendation and certified the union...."].)
Thus, on the basis of plain wording, reasonable interpretation, time honored grammatical rules, comparable federal statutory schemes, to say nothing of the avoidance of unnecessary constitutional decisions, the ALRB's interpretation of Labor Code section 1156.3, subdivision (c), as not prohibiting its independent hearing officers from making recommendations to the Board should be upheld. This is especially so because "[t]he ALRB is the agency entrusted with the enforcement of this Act and its interpretation of the Act is to be accorded 'great respect by the courts and will be followed if not clearly erroneous.' " (San Diego Nursery Co. v. Agricultural Labor Relations Bd. (1979) 100 Cal.App.3d 128, 140, 160 Cal.Rptr. 822.)
III.
The make-whole remedy
Since I disagree entirely with the majority opinion's determination concerning the meaning of Labor Code section 1156.3, subdivision (c), I can find no reason to annul the decision of the ALRB certifying the UFW as the exclusive collective bargaining representative of petitioner's employees as a result of an election held on September 4, 1980. In making that determination I have examined each of petitioner's objections, the merits of which were not reached in the majority opinion, and have found each to be meritless in the extreme. Since this is merely a dissenting opinion there is no need to spell out my nonbinding reasoning with respect thereto.
However, because imposition of the make-whole remedy is a drastic remedy, that order deserves some mention.
I find there is substantial evidence to support the ALRB's conclusion that make-whole relief was appropriate in this case, especially in light of the overwhelming vote for the union: the final vote showed 71 employees for the union, 35 for no union and 4 challenged ballots. Since petitioner was unable to produce any evidence of conduct affecting the free choice of the voters it is unimaginable that petitioner believed this landslide (67%) vote would not have occurred even if one or more of the objections he made were sustained. Given the factual posture of the case, the ALRB was justified in concluding that petitioner's posture was unreasonable in continuing to litigate objections which were not supported by competent evidence. To later use these nonmeritorious objections as an excuse to refuse to bargain with the workers' elected representative was plainly an effort to undermine employee rights. Petitioner, by unreasonably thwarting the collective bargaining process, has done damage which make-whole can only begin to remedy.
For these reasons I would vote to enforce in full the ALRB's order. I would further ask for briefing on the question of whether this court has the power to impose sanctions--additional to the make-whole [215 Cal.Rptr. 789] remedy--for the filing and prosecution of this frivolous petition for writ of review. (Cf. Code Civ.Proc., § 907; Cal.Rules of Court, rule 26(a); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183 Cal.Rptr. 508, 646 P.2d 179.)
The Congressional purpose in later prohibiting hearing officers from making a report or recommendation to the national board was "[p]resumably ... to isolate the Board members from the Board agents who conduct the representation investigations required under the act." (Sen.Rep. No. 105, Pt. 2, 80th Cong., 1st Sess., p. 33 (1947), emphasis added.) In other words, Congress sought to avoid any appearance of impropriety which might result from having a regional officer or employee rule on election questions involving the earlier decisions and conduct of his/her own regional colleagues.