On May 16, 2018, we blogged about California’s compulsory arbitration requirements for unionized agricultural workers, the California Supreme Court’s rejection of constitutional challenges to that statute, and the petition for certiorari filed by the employer, Gerawan Farms. A majority of Gerawan’s employees signed a petition seeking an election on whether to decertify the union.  The California Agricultural Labor Relations Board (ALRB ) allowed the election but it refused to count the ballots.  The ALRB found that Gerawan had committed unfair labor practices that tainted the reliability of the petition.  The remedy the ALRB imposed was to ignore the results of the election.

On May 30, 2018, the California Court of Appeal, Fifth Appellate District, vacated the ALRB’s order and remanded for further proceedings consistent with its opinion. The appellate court first held that it had jurisdiction to hear the appeal.  Most ALRB orders dealing with elections are not immediately reviewable because they are not final.  Rather, the employer must refuse to bargain with the union and then appeal from the ALRB order finding that the refusal was an unfair labor practice.

For three reasons, the court held that this “technical refusal to bargain” process did not apply to Gerawan’s petition for review. First, the ALRB’s refusal to count the ballots meant that the technical refusal to bargain process was an inadequate remedy.  If Gerawan refused to bargain, but the union won the election, Gerawan would be guilty of an unfair labor practice.  Second, the court did have jurisdiction to review the unfair labor practice findings and the election remedy was an integral part of those findings.  Third, the rationale for the technical refusal to bargain process is to avoid disrupting the status quo by lengthy, possibly frivolous, litigation.  Here, the status quo remains in effect unless and until the union is decertified.

On the merits, the court sustained some of the ALRB’s factual findings and overturned others. The findings the court sustained were technical and relatively trivial.  For example, Gerawan allowed two workers to devote parts of the regular work day to campaign for signatures on the petition.  On one day, in the face of numerous absences by employees objecting to the union, Gerawan raised the unit price for a packed box of grapes by 25 cents; the court held that this finding was “marginally sustainable.”

The principal legal issue in the opinion is the standard of proof required to set aside an election. The NLRB inquires whether unfair labor practices have violated the “laboratory conditions necessary for a fair election” – a quite lenient standard.  The California court adopted a much more demanding “outcome-determinative” standard – i.e., the employer’s misconduct was sufficiently severe that it “affected the outcome of the election.”

The Court reasoned that, under federal law, a rerun election is usually possible within a relatively short period of time and by essentially the same employees. By contrast, in California, the statute requires at least 50% of peak employment at the time a petition is filed.  Given the seasonal nature of agricultural employment, a year might elapse before a rerun election could legally be held; given the high rate of turnover in agricultural employment, the electorate might be very different.  The court was concerned that this lengthy delay would intrude on employees’ rights not to join a union if they do not want one.

The court also held that, in assessing the impact of employer misconduct, the ALRB must consider the margin of the election. If the vote is close, a lesser level of misconduct might require a rerun; if the vote is 90-10 in favor of decertification, it would require much more egregious misconduct.  On remand, therefore, the ALRB was required to count the ballots.  Given the intensity with which the employees oppose the union, it seems likely that the vote will not be close.

In its initial ruling, the ALRB did not apply the outcome-determinative standard. It held that that standard applied to elections.  Here, though, the ALRB found that Gerawan’s unfair labor practices had “tainted” the petition and, since the petition was therefore invalid, so was the election.  The court thought that the taint standard all but ignored employees’ interest in filing a petition seeking decertification.

Following a dissent in an earlier ALRB case, the court held that the petition was not a jurisdictional requirement for a decertification election, but merely an administrative tool to assist the ALRB in determining whether there was sufficient support for decertification to warrant an election. Moreover, the taint standard assumed widespread dissemination of improper efforts to coerce employees, without either direct or circumstantial evidence to support it.  Finally, the taint standard focuses on the petition rather than the election, but California law strongly favors elections.  So the proper legal standard is whether Gerawan’s alleged misconduct had an outcome-determinative effect on the election.

The court remanded the case to the ALRB for reconsideration based on the unfair labor practices actually supported by the evidence; the proper standard of review; and the vote tally. But it is hard to believe that the ALRB on remand can do anything other than uphold the election.  The court held that the relatively minor unfair labor practices Gerawan actually committed “plainly did not rise to the level or character of employer interference in the decertification process to permit the Board to pronounce the entire worker petition void.”