Agricultural Personnel Management Program
University of California

DECISION OF THE INVESTIGATIVE HEARING EXAMINER

THOMAS SOBEL, Investigative Hearing Examiner: I heard this case in Salinas, California on January 11, 12, and 13, 2000. Briefs were received on February 13, 2000.

I. INTRODUCTION

Technically, this case may be said to have begun on May 21,1999 when the United Farm Workers of America, AFL-CIO, sought an election among all the agricultural employees of the employer, Coastal Berry LLC, employed in the state of California. On May 24, 1999 the Coastal Berry of California Farm Workers Committee filed an amended petition for intervention seeking an election among the employer's employees in Monterey and Santa Cruz counties only.

Now, the UFW is seeking to have the Board do what the Committee asked the Board to do in its petition, namely, divide Coastal's employees into two separate units, while the Committee vigorously asserts that only a statewide unit is appropriate. To understand how we have come to this,it will be necessary to trace, in somewhat greater detail than is usual in an objections case, the larger history of this company and these labor organizations.

That history goes back to attempts by the UFW to organize the Watsonville/Salinas employees of Coastal's predecessor during 1996, at which time there were angry encounters between some employees and UFW organizers. See, Gargiulo Inc. (1997) 23 ALRB No. 5.

The hostility between the two groups was not confined to the fields. In 1997, some of the employees now active on behalf of the Committee brought their complaints about the UFW's organizing efforts to the Board during its regulatory review hearings. Transcript of Hearing, Monterey, California, November 5, 1997. The UFW would return the favor at a Joint Legislative Hearing before the Senate Industrial Relations Committee where it complained about the activities of the Committee. Joint Legislative Hearing, Senate Industrial Relations Committee, 7/28/98. In any event, by summer of 1998, the UFW had not petitioned for an election.

   A. 1998

      1. The Committee Seeks an Election

On July 16, 1998, the Committee filed a petition for certification seeking an election among the agricultural employees of the employer in Monterey and Santa Cruz counties only. The UFW did not seek to intervene in the election.

      2. One Unit or Two?

As part of its required response to the petition, Coastal included a voting eligibility list that contained the names of 19 employees employed in its operations in Oxnard. Although these employees fell outside the scope of the unit sought by the petition, Coastal did not challenge the unit sought by the Committee.

Indeed, it declined to take any position on the unit for two related reasons. The first was that, in the face of the intense rivalry between the Committee and the UFW, all it wanted was an election to settle representative status; the second was that, since company representatives could not decide for themselves whether the unit should be statewide or consist solely of its "northern" operations, they were willing to live with any unit the Regional Director determined appropriate.

By July 20, 1998, company officials had decided that the smaller, petitioned-for unit was appropriate. Its attorney, James Sullivan FAXed the Regional Director:

At the pre-election conference, the Board agent announced that the election would be held in a statewide unit. No one objected.

The election was held on July 23, 1998. The Coastal Berry Farm Workers Committee won by a majority of 113 votes over the No-Union choice, with 39 unresolved challenged ballots.

      3. The Employer Objects

After the election, Coastal filed objections, including one to the Board's failure to provide notice of the election to approximately 162 Oxnard employees who were eligible to vote, but who had been left off the eligibility list.

The Executive Secretary dismissed most of the objections, held some in abeyance pending the outcome of the General Counsel's investigation of charges alleging the same conduct, and set for hearing:

Before the commencement of the hearing, the Regional Director sought to include the question of the geographic scope of the unit in the hearing on the grounds that if only he had received Sullivan's letter arguing for a "northern" unit, he would not have found a statewide unit appropriate, the Oxnard employees would not have been eligible to vote and their votes could not be considered outcome determinative. The Board rejected the motion:

      5. The Election Is Set Aside

So far as pertinent here, the evidence adduced at the hearing showed:

Sullivan had asked Earl Pirtle, the Chief Financial Officer of the Company, to prepare a "standard" list of the employees employed during the payroll period immediately preceding the election, which is the statutory eligibility period. When Sullivan made his request, he was under the impression that the Oxnard season had already ended.

Unbeknownst to him, the Oxnard season had extended a week beyond normal and the company had employed 162 employees in Oxnard during the eligibility period. Because Pirtle understood that all Sullivan wanted was a period-ending payroll list, provided one that did not include any employees who had not worked through the end of the period. As a result, 162 employees, paid on special layoff payrolls, were left off the list. Because Sullivan believed the Oxnard season had already ended before the eligibility period began, he had no reason to question the small number of names from Oxnard listed as eligible to vote on the list that he provided the Board.

The IHE found that Sullivan's ignorance of the layoffs, and Pirtle's ignorance of what was actually required, were honest mistakes and, therefore, that the employer had inadvertently left off an outcome determinative number of eligible employees from the list. He recommended the election be set aside.

      6. The Committee Contends that A Statewide Unit Is Inappropriate

As the Regional Director had argued, so now did the Committee, which appealed the decision of the IHE to the Board on the ground that the failure to include the Oxnard employees on the eligibility list could not have affected the outcome of the election because, relying on the showing made in Sullivan's undelivered letter to the Regional Director, they should not have been included in the unit:

On December 30, 1998 the Board responded to the Committee's argument by setting a hearing to determine the appropriateness of a statewide unit in furtherance of its "continuing obligation . . . to oversee all aspects of the representation process." Admin. Order No. 98-14, Committee Ex 8.

Upon appeal by Coastal, reconsideration of this Order was granted. On May 6, 1999, Admin. Order 98-14 was vacated. The Board now reasoned:

      1. A False Start

There matters stood until May 17, 1999 when the UFW filed a petition for certification seeking an election in a statewide unit consisting of all the agricultural employees of the employer. Coastal submitted its required response, which, once again, did not contest the scope of the unit. However, in a letter to the Regional Director sent on the same day the petition was filed, but sent in response to another matter, Sullivan now argued that a statewide unit was appropriate:

To underscore the reluctance with which the Committee complied with the Region's demands, its attorney, James Gumberg, wrote Executive Secretary J. Antonio Barbosa on May 21, 1999 to complain about what he understood as a ruling by the Executive Secretary that the Committee's petition for intervention had to conform to the UFW's petition for certification:

The UFW had filed a new petition for certification, which was to lead to this case. The Committee initially filed a petition for intervention for a statewide unit, apparently still under the impression that it had to do so in order to intervene. However, Gumberg separately advised the Regional Director that the Committee continued to believe that a single statewide unit was inappropriate: "[T]he Committee respectfully requests that the Region establish a separate bargaining unit for the Watsonville-Salinas area and another for the Oxnard area."

The following day, the Executive Secretary advised Gumberg that he had not ruled that the Committee must petition for a statewide unit. Accordingly, the Committee filed an amended petition calling for an election in Monterey and Santa Cruz counties only and took the same position at the pre-election conference held on the same day.

According to Hernandez, when Committee members pressed their case at the pre-election conference "that two units might be appropriate", UFW representatives "insulted" them, saying they "didn't know what they were doing." RT p. 410. Although the Regional Director determined that a statewide unit was appropriate, in view of the Committee's cross-petition, he ordered the ballots segregated in order to keep separate tallies for each area in order to preserve the unit issue.

Sergio Leal testified that the Committee did not campaign much in Oxnard because:

Coastal Berry Farm Workers Committee . . . . .646
UFW . . . . . . . . . . . . . . 577
No-Union . . . . . . . . . . . 79
Unresolved Challenged Ballots . . . . . . . . . . 60
Void Ballots . . . . . . . . . . 12

      3. A runoff is necessary

Since no party received a majority of the valid votes cast, the Regional Director performed an expedited investigation of what was projected to be a determinative number of challenges, issued his report, considered exceptions, and counted the ballots in accordance with his recommendations. When a majority still had not been achieved under the expedited procedure, the parties waived resolution of the few remaining challenges and consented to a runoff election to be held between the Committee and the UFW on June 3 and 4, 1999.

The Tally of Ballots in the runoff election was:

Coastal Berry Farm Workers Committee . . . . .688
UFW . . . . . . . . . . . . . . 598
Unresolved Challenged Ballots . . . . . . . . . . 92

However, the parties split the regions between them, with the Committee winning a majority in Watsonville/Salinas (422 votes to 287) and the UFW a majority in Oxnard (311 votes to 266.)

With the number of challenges again being outcome determinative, the Regional Director commenced an investigation, which was ongoing at the time objections were due. Only the UFW filed Objections.

On June 25, 1999 the Regional Director issued his report on challenged ballots. Only the UFW filed exceptions. On August 12, 1999, the Board dismissed the exceptions and ordered the Regional Director to count the ballots in accordance with his conclusions and to issue a revised tally.

The Final Tally of Ballots was:

Coastal Berry Farm Workers Committee . . . . .725
UFW . . . . . . . . . . . . . . 616
Unresolved Challenged Ballots . . . . . . . . . . 19

Again, the two organizations split the regions: the Committee won a majority in Watsonville/Salinas, 448 to 295, and the UFW a majority in Oxnard, 321 to 277.

Leal testified that, even though they believed they had grounds to do so, the Committee did not file election objections because they had won the election.

The UFW filed hundreds of objections. After screening the UFW's Objections, the Executive Secretary issued an order setting a number of them, including one to the geographic scope of the unit, for hearing. On November 29, 1999, pursuant to motion, the Executive Secretary ordered that the objection to the geographic scope of the unit be heard alone.

II. PRELIMINARY DISCUSSION

The Committee makes a number of legal arguments challenging the propriety of my even considering the UFW's objection to the scope of the unit, arguing, first, that the UFW should not have been permitted to raise the unit issue since the election was held in the unit it sought; and second, that the Board has already determined that a statewide unit is appropriate.

   A. Waiver and Estoppel

The short answer to the waiver argument is that, since 1977, our Board has taken the position that, even where a party has agreed to a particular unit designation, it can nevertheless challenge it in post-election proceedings:

The argument is unconvincing on the record as a whole. As will be discussed, there is practically no interchange between the Watsonville/Salinas and Oxnard employees, so Leal's testimony that the Committee was organized "during Watsonville," must be taken to mean not only that it was organized within a particular period of time, but also that it was organized among a particular group of employees.

In view of this, as well as 1) the Committee's repeated efforts to obtain an election in a Watsonville/Salinas unit only, 2) its specific reservation of the right to appeal the unit determination in this case, I can only conclude that it did not campaign "hard" in Oxnard because whatever happened there was of little concern to it: it expected to win in Watsonville/Salinas; if it won in Oxnard, it would win statewide; if it lost in Oxnard by a margin of victory large enough for the UFW to swamp its expected victory in Watsonville/Salinas, it could appeal the unit designation in order to preserve its victory in the smaller unit.

That it did not expect the UFW to be able to object to the unit description after having sought a statewide unit, was not due, as far as the record shows, to any deception on the part of the UFW, but was, instead, the result of the Committee's being unaware of Board procedures, which permitted such an appeal. In any event, the Committee's campaign decisions were based upon both confidence of its own strength in Watsonville/Salinas and its unawareness of Board procedures.

For similar reasons, I reject the Committee's related argument that the UFW should be estopped from claiming separate units because its filing for a statewide unit -- and the Regional Director's determination that such a unit was appropriate, -- induced it "not to file election objections on the conduct of the Oxnard election even though it had fertile grounds to do so" since, in the next breath, the Committee actually admits, as I have found above, that its decision not to file objections was "strategic" and "based on the Committee's overwhelming election victory throughout the state." Post-Hearing Brief, p.13. In other words, the Committee thought the election was over because it had won: Board processes are rarely so simple, not just for the Committee, but for all unions and all employers alike.

   B. The Effect of the Board's Prior Rulings

Relying upon 1) the Board's statement in Admin. Order 98-12 that "the Regional Director has failed to point to any evidence that would, or should, have changed his . . . conclusion that a statewide unit was appropriate", and 2) the Board's statement in Administrative Order 99-2 that "there [was] no indication whatsoever that the Regional Director's unit determination [in 98-RC-4-SAL] was in any way incorrect," the Committee argues that the Board has implicitly affirmed the Regional Director's determination that a statewide unit was appropriate.

Since the gist of both rulings was that the Board did not regard the unit question as properly before it, I do not understand either ruling to imply a finding as to the appropriateness of the unit. The Board's language is strong, but its acquiescence in the Regional Director's unit determination took place within the context of a debate, reflected in dissents by then-Chairman Stoker in 98-12 and then-Member Stoker in 99-2, about the scope of the Board's authority to permit exceptions to the statutory requirement that objections be filed within five days of the Tally of Ballots.

When urged to exercise a doubtful jurisdiction, a tribunal that expresses satisfaction that matters are not so wrong as to require its intervention, should not be understood as making a mature judgment about what it would do if the matter were before it. The law is filled with cases in which a party's claim, rejected as grounds for extraordinary relief, is nevertheless upheld through ordinary appeal.

Moreover, even if the rulings could be construed to imply a determination that the Board would have made the same decision that the Regional Director did, "a prior decision in regard to whether a unit of certain employees is appropriate for purposes of collective bargaining is a circumstance, but not a decisive one, which the Board in the exercise of its sound discretion will consider should such question present itself in a subsequent proceeding involving the representation of such employees." Pacific Greyhound Lines (1938) 9 NLRB 557, 573

We are now in that subsequent proceeding.

   C. An Argument by the Employer

In determining the appropriate unit, Coastal seeks to have me take into account the potential difficulties in bargaining with two unions. In the first place, difficulties of this kind are inherent in the discretion possessed by the Board and are faced by any employer under the national Act when single plant units are determined to be appropriate for an employer with multiple locations. More importantly, unit determinations must fulfill the employees' interest in self-organization, not the employer's desire for simplicity.

III. THE SCOPE OF THE UNIT

   A.  FACTS

     1. Introduction

Coastal Berry Company is a limited liability corporation. The Company grows strawberries, raspberries and blackberries, though mostly strawberries. It has two general areas of operation: Watsonville/Salinas in the north and Oxnard in the south. The two areas are hundreds of miles apart. Because it operates in both southern and northern California, it can harvest nearly year round. Harvest begins in Oxnard in January and continues through the second or third week of June, with peak coming in April. Watsonville/Salinas picks up in March so that the two regions briefly overlap from March until June, when the Oxnard season ends. Watsonville/Salinas reaches peak in May, and while harvesting will continue through November, it is about 60% complete by the end of July. RT p. 98

2. Structure of the Company

The Company's main office is in Watsonville at the cooler it owns there, RT p. 10, but it also maintains two offices in Oxnard, one, at one of the ranches it leases and the other at the commercial cooler it uses, RT pp. 157, 317, 326. Besides these offices, it has a shop in Oxnard.

Ernie Farley is President of the Company. Because Farley's testimony is not entirely consistent with some of the documentary evidence provided by the Company, it is not possible to lay out the exact structure of the Company with confidence. Although two organizational charts, one prepared in June 1998 and the other in August 1999, show Stuart Yamamoto in charge of two, separate northern divisions, Inland and Coastal, corresponding to the Watsonville and Salinas areas, and Alan Thorne in charge of the Oxnard Division, by the time of the hearing, Yamamoto's and Thorne's job titles had changed (Yamamoto had become Vice-President of Production and Thorne, Vice-President of Operations,) and, according to Farley, thecompany no longer divided the Watsonville/Salinas operations into two separate divisions. See, UFW 6.

3. Supervision

For present purposes, it is clear enough that Yamamoto oversees operations in the north, that Thorne does the same in the south, RT pp. 33, 78 and that, on a day-to-day basis, Henry Leal manages operations in the north and David Murray in the south. Arrayed beneath Murray are a variety of "supervisors", RT. p. 247, such as Sabino Pitones, Diego Luna and Jose Torres, who apparently run specific ranches, and Juan Robles, who "supervise[s] labor," RT p. 300, as well as a number of foremen. For his part, Leal has his own supervisors and foremen and they are different from Murray's. See UFW 6.

4. Interchange of Supervisors

In general, there is little exchange among the field supervisors between the north and the south. Sullivan and Farley could identify only Ezequiel Flores and Trino Ramirez as moving back and forth between the two regions: as Director of Quality Assurance, Flores goes to Oxnard to inspect the pack, RT p. 104; Ramirez, the Pest Control supervisor, also travels back and forth. UFW 1, See also, RT. p. 271-2.

5. Centralization of Operations

This is not to say that Flores and Ramirez alone share responsibility for both regions. It is clear from the testimony of Farley and Earl Pirtle, the Company's Chief Financial Officer, that Watsonville personnel perform a variety of functions for the southern operation. Pirtle, for example, characterized Coastal as a "shared services operation" and testified that all the Company's accounting, including grower accounting, fixed asset accounting and accounts payable and receivable, are conducted from the Watsonville office. Thus, all the company's banking accounts are in Watsonville, all credit applications are prepared there, and all of Murray's purchases must be, first, authorized, and finally, approved for payment by Alan Thorne in Watsonville, RT pp. 77, 78.

Budgeting is done on a company wide basis with Murray having the opportunity to shape it by advising Farley and Thorne about Oxnard's particular needs, RT p. 210; but the final budget is Farley's and Thorne's work. It is also Thorne who purchases all the plants and plastic mulch used north and south, and all the boxes and labels, RT p. 74, which, by the way, bear Coastal's Watsonville address. RT p. 220

The Company has one Workers' Compensation and one medical insurance policy applicable to both regions, RT p. 201, and while Oxnard has its own payroll department, Watsonville nevertheless performs essential payroll services for it. Depending upon the time of year, and correlatively how busy each office is, Oxnard will, in Murray's words, "process" the payroll, which I take to mean actually compute the wages from the raw data of the timecards, See RT pp. 188, 328. However, when Oxnard is too busy to perform the calculations, which, according to Murray is 80% of the year, the timecards will be sent to Watsonville for processing. RT p. 188. No matter whether the payroll is originally computed in Oxnard or in Watsonville, it is always entered into the mainframe computer in Watsonville and payroll checks are cut in Watsonville and sent by courier to Oxnard.

Margie Alcantar from Watsonville coordinates all the health and safety programs and both Alcantar and Juan Gomez do training in both areas. RT p. 250. In addition to these two, Comité 4 lists some twenty other employees in various categories -- Management, Sales and Marketing, Operations, Accounting/Personnel and Field Support -- who travel between Oxnard and Watsonville/Salinas and eight other employees who, while they do not travel between the two locations, nevertheless perform functions that affect both of them.

6. Interchange of Equipment

Although there is some interchange of equipment between the two regions, Thorne testified that the overlap in the harvest between the two regions -- which occurs for about eight months of the year, See, UFW 16 -- limits the amount of equipment that can be interchanged. RT p. 264 Specifically, he recalled sending "a lot of flatbed trucks" to Oxnard in January and then bringing them back in May, RT p. 263, and sending a few pick up trucks, but generally speaking the Company now rents most of the equipment they use in Oxnard "once [they] pick up steam up north." RT p. 264

7. Type of Work Performed

Coastal produces fruit for the fresh, cannery and juice markets. In general, berries picked for the fresh market are the highest quality, with somewhat riper berries going for cannery and "pretty bad berries" going for juice. RT p. 254 Company and employee witnesses agreed that if one can pick for the fresh market, one can pick cannery or juice. For example, Farley, testified that basically all that changes when a picker changes from fresh market to cannery is that he places his berries into a reusable plastic box instead of a cardboard box, RT p. 162, and all that changes when a picker goes from cannery to juice is that he exchanges the plastic box for a bucket.

Company figures indicate that in 1999, only 1% of Watsonville's pick was cannery as compared to 41% of Oxnard's, See, UFW Ex 7. Farley repeatedly emphasized that this difference in "styles" was entirely dependent on market conditions so that, I take it, if relatively warmer weather caused the crop to ripen faster than usual in Watsonville, or if rain came as the Watsonville harvest was in full swing, and if prices were high enough to offset wages, the company would pick cannery or even juice in the north. RT pp. 168, 235

Even if it is simply a matter of external factors, the factors have remained stable enough so that none of the Watsonville employees who testified at the hearing had picked cannery at Coastal and Company officials could testify that, even though they have picked more cannery in Watsonville in previous years than they picked in 1999 [1%], as a general rule they do "almost no cannery in the north," RT. P. 240 [Farley.]

8. Hiring

Oxnard keeps its own "hiring, recall, and personnel records", RT p. 42, and although permanent personnel records are kept in Watsonville, and Watsonville generates the computer list which both regions use in determining hiring preferences in accordance with the Employee Handbook, See UFW 10, Farley testified that hiring is done from "local lists", RT p. 54. The Employee Handbook confirms his testimony. According to the Handbook, "the requirements of individual ranches . . . will be considered separately," UFW 10, p. 4, which appears to mean that one does not apply for both Oxnard and Watsonville/Salinas, but for the one or the other.

Farley testified that seniority is company wide, RT p. 54-55, but given the evidence that hiring is predominantly local, and there is little interchange of employees, as a practical matter, his testimony appears to mean little more that, as he also testified, an employee fired in Oxnard could not work in Watsonville. RT p. 204

The hiring process works this way: At the start of each season, Ezequiel Flores in the north and Murray in the south advise Farley of their prospective labor needs and upon receiving approval, begin hiring. Applicants must register "at the personnel office", in the region where they want to work, RT pp. 54, 68. Upon registration, they are told when work is to begin, after which they are responsible to check back every week in order to be hired. RT p. 306-307. Since regular checking is necessary to being hired, it seems reasonable to conclude that local residence would greatly enhance one's chances of being hired and UFW 14, the eligibility list for the last election, confirms this. It shows that of the over 700 employees employed during the eligibility period in Oxnard, less than a dozen lived outside the local area and that of the approximately 800 employees in the Watsonville/Salinas area, only one employee lived outside the Watsonville/Salinas area and he came from Berkeley.

9. Interchange of Employees

Besides the difference in the labor pool, generally speaking there is little interchange between the Oxnard harvest workforce and the Watsonville/Salinas area harvest workforce and whatever interchange there is, is entirely voluntary, RT pp. 130, 132. The Company could identify only 34 employees, out of the thousands employed during the calendar year, who worked in both Oxnard and in Salinas. See, UFW 15.

10. Rates of Pay

The fact that the labor pools are separate also reflects company policy. Pirtle testified that the Company structures its pay scales in order to keep Oxnard employees from following the harvest north to the Watsonville/Salinas area:

"We try to equalize wages primarily in order to keep the Oxnard from having people leave early to come up north. I mean, we do have people who migrate with the season. And we typically find Oxnard operation is short handed late in the season. And if there's no reason to go to Watsonville, they clearly wouldn't." RT p. 391.

However, he emphasized that in order to do so, the company strives for what he called wage parity by which he meant that an Oxnard paycheck would be roughly the same as a Watsonville/Salinas area paycheck for the same number of hours.

Wage rates are different north and south, as the following chart, drawn from UFW 17, reveals:
 

JOB FUNCTION	WATSONVILLE/SALINAS RATES	OXNARD RATES
Harvest foreman	$9.80	$8.00
Asst. Foreman	$8.25	$7.50
Quality Checker	$9.00	$9.00
Punchers	$7.70	$6.85
Asst. Punchers (Oxnard Only)		$6.45
Truck Drivers	$7.70	$7.70
Forklift Drivers	$7.70	$7.50
Stackers	$6.50	$6.75
Picker-Hourly	$6.50	$6.00
Picker-Standard and Consumer	$4.60/hr + $.75*	$4.50/hr + $.60*
Picker-Sysco	$4.60/hr + $.85*	$4.50/hr + $.70*
Picker-Stem	$4.60/hr + $1.00*	$4.50/hr + $.85*
Picker-Export	$4.60/hr + $2.10*	$4.50/hr + $2.10*
Picker-Cannery	$2.00/hr + $.10*	$2.00/hr + $.10*

* Murray explained that when work is slow at the beginning of the season, the company pays hourly, but as the "harvest picks up", the company switches to an incentive system, consisting of an hourly rate plus "so much per tray." RT p. 322, see also, RT p. 115 [Farley]. Not reflected in the chart is a minimum guarantee when the company makes the shift to incentive pay. See, RT p. 115 [Farley]

Except for the cannery rate, all the harvest rates are higher in the Watsonville/Salinas area than in the Oxnard area. Pirtle explained that, despite receiving generally lower rates for the same work, employees in Oxnard could receive roughly similar pay for the same number of hours as the Employer's Watsonville/Salinas employees because they could harvest more in a shorter period of time, RT p. 403.

11. Local Discretion

Murray does not have independent responsibility for setting wage rates. Rather, at the beginning of every season, he researches the competition for pay rates, takes into account the job itself, and recommends local rates to Watsonville. Farley, Pirtle, Thorne and Libby Mine look at his recommendation. While Farley testified that Murray's recommendations would be weighed heavily, he also insisted they would not be accepted automatically, RT p. 72. Murray could not recall his entire wage package being rejected although he did recall that some of his recommendations were rejected apparently because he was recommending higher wages than the company was paying in Watsonville. RT pp. 349-351.

All Seasonal Employees are governed by the rules contained in the Seasonal Employee Handbook, UFW 10, which covers Hiring and Recall Procedure, Work Rules, Benefits, Leave of Absence Policy, Grievances and the like.

Not surprisingly, the parties emphasize different aspects of the Handbook in their characterizations of the Company's labor relations policy. In general, the Employer and the Committee emphasize the uniformity of the rules themselves while the UFW emphasizes the amount of discretion remitted to local foremen or supervisors in applying them. For example, where the Company points to Farley's role as the final arbiter of all grievances, the UFW points to the ability of either local foremen at the Step 1 level and Ranch Managers at the Step 2 level to settle them before they reach Farley; where the Company and the Committee point to Farley's role in all terminations and suspensions, the UFW points to the authority of local crew foremen to enforce quality standards and to impose progressive discipline; where the Company points to its uniform standards of conduct, the UFW points to the authority of foremen to interpret them.

Indeed, so thoroughly has the UFW mined the Employee Handbook for examples of local discretion that to repeat all it has discovered would unduly burden this decision. I will content myself with including the general language from the Handbook as illustrative of the kinds and amount of discretion possessed by Murray and his foremen:

  a. The Ranch Manager is in charge of the ranch's daily activities.

  b. The crew foreman is in charge of the crew and directs its activities. The primary responsibility is the quality of the pick and production of the crew, and ensuring that all ripe fruit is picked.

  c. The punchers are responsible for quality inspection on all crates presented.

Handbook, UFW 10, p. 8

I find from the foregoing 1) that Coastal exemplifies a high degree of administrative centralization; 2) that, while many labor relations decisions are subject to the ultimate control of Farley, including the number of employees to hire, when to begin hiring, the wages to be paid, all terminations and suspensions and whatever other disciplinary matters may be appealed to him, a great deal of day-to-day discretion in labor matters is lodged in Murray, who also effectively recommends most wages, and in local foremen, who not only enforce quality standards, but also routinely decide, among other things, whether or not to grant leaves of absences or to initiate discipline; 3) that there is little common supervision of the employees in the two regions; 4) that, except for the type of pick, which I do not regard as of major importance, the nature of the work performed is similar; 5) that Oxnard employees typically receive lower hourly or piece-rates than Watsonville/Salinas employees in the context of the company's striving to keep the labor pools separate; and 6) that other terms and conditions of employment are pretty much the same.

   A. The Standards Outlined

Under the National Labor Relations Act, the national Board has the authority to decide "in each case, whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed under [the] Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit", 29 USC Sec. 159(b).

Since the national Act specifically permits the Board to certify plant-wide, or, in the language of this case, single-location, units, under that Act having two separate units, would be the prima facie correct choice. Dixie Belle Mills, Inc. etc (1962) 137 NLRB 629. So strong is the presumption that single location units are appropriate that it must be overcome even when two plants of the employer are located some 200 feet apart from each other, See, e.g. The Kendall Company (1970) 184 NLRB 847.

A presumption that, absent other considerations, would operate to make two units out of a single employer's fields merely because they were separated by a wide country road, would obviously not do under our Act, and it is clear that the Legislature intended to prevent the proliferation of units that would flow from it. Missing from our Act, then, is any language that would divide employees by skill or plant (field) and the Board has been given discretion to divide an employer's employees only where, as here, they are located in two or more non-contiguous areas.

In the earliest unit cases arising under our Act, the Board clearly recognized that the discretion it possessed in such cases was analogous to that possessed by the NLRB in multi-location or multi-plant cases.

The Employer's farming operations are in California are conducted in four valleys . . . separated from each other by distances up to several hundred miles. There is no dispute that these valleys constitute separate and non-contiguous geographic areas in relation to one another. Hence, the Board must determine the appropriate unit or units.

In making that determination it is appropriate to look for guidance to decisions of the National Labor Relations Board in cases involving choice between single location and multiple locations of the same employer.

Bruce Church, Inc. (1977) 2 ALRB No. 38, at p. 4

Borrowing from the national Board, the Board identified a variety of factors that it considered relevant to determining the appropriate unit when an employer operates in non-contiguous areas:

NLRB decisions yield a number of factors which that agency has relied upon in determining unit appropriateness. These include: (1) the physical or geographical location of the locations in relation to each other [Cite]; the extent to which administration is centralized, particularly with regard to labor relations [Cite]; (3) the extent to which employees at different locations share common supervision [Cite]; (4) the extent of interchange among employees from location to location [Cite]; (5) the nature of the work performed at the various locations and the similarity or dissimilarity of the skills involved [Cite]; (6)similarity of dissimilarity in wages, hours, and other terms and conditions of employment [Cite]; and (7) the pattern of bargaining history among employees [Cite.]

2 ALRB No. 38, at p.5

In setting forth these factors, the Board was careful to point out that unit determinations under the Act were not to be approached in a mechanistic way, so that, for example, the factors of centralization and similarity of work which I have found to be present in this case, would not always trump any other factors or any combination of factors: "there is no "rigid yardstick" for determining the appropriateness of a unit [and] no single criterion is determinative . . . what may be determinative in one situation may not be determinative in another," Bruce Church, p. 3; the goal in all cases is to assure stable collective bargaining relations. John Elmore Farms (1977) 3 ALRB No. 16.

In the earliest cases to apply the Bruce Church criteria, the Board found single-statewide units appropriate, only where the evidence showed that, besides the high degree of administrative centralization, which we find in this case, the employer's employees followed the harvest from one location to another.

Thus, in Bruce Church, the Board found that out of approximately 1700 employees, nearly 60% worked in two of the four valleys farmed by the employer and nearly 25% worked in at least three valleys. Individuals who desired full-time year round employment moved from valley to valley with the season, as did supervisory personnel, including the same general manager, who oversaw the work at all locations, and a substantial amount of equipment travelling between the valleys. In Bud Antle, 3 ALRB No. 7, at p. 4, and in J.R. Norton, 3 ALRB No. 66, at p. 6, it was similarly shown that there was a year round interchange of most employees, supervisors and equipment.

By way of contrast, in Mike Yurosek (1978) 4 ALRB No. 54, the Board found a separate unit of the Employer's El Centro harvesting employees appropriate when: a different manager controlled labor relations in El Centro than controlled the Employer's "northern" operations, employees in El Centro received different wages and benefits than did their northern counterparts, there were different jobs in El Centro than in the north, different foremen worked north and south, and employees had separate area seniority. These factors were held to outweigh considerable administrative centralization, including centralized crop and acreage decisions, as well as collaboration in the setting of wages between El Centro's manager and the Employer's northern manager.

After several years of applying this manifold approach, in 1983 the Board introduced a so-called legislative preference for single statewide units as a starting point in unit analysis. In the first case to identify such a preference, the Board found a single unit appropriate on the basis of considerable centralization, integration of operations, and uniform benefits, but relatively little overlap in job functions, no common supervision, separate hiring, different wages, and a Union majority in one part of the unit and a No-union majority in the other part. Prohoroff Poultry Farms (1983) 9 ALRB No. 68

In view of the differences between the statewide units found appropriate in the Board's earlier cases and the statewide unit found appropriate in Prohoroff, it is difficult not to conclude that the presumption was a potent factor in the Board's determination. Nevertheless, it was clearly not the only one for, in addition to the other factors recited above, the Board also emphasized the fact that no other union was competing for a smaller unit.

For present purposes, the importance of the presumption was underscored by two decisions, the first, a few months after Prohoroff issued when, without resort to it, the Board found separate units appropriate where, as here, there was similar work, but no interchange of employees, Exeter Packers, Inc. (1983) 9 ALRB No. 76, and the second, a year later, when the Board found a statewide unit appropriate despite considerable distance between the two locations, relatively little interchange of employees, the lack of any previous bargaining history favoring an employer-wide unit, and different work being performed at the different locations. The Board nevertheless held a statewide unit appropriate, relying on the presumption, but also the fact that similar skills were needed in both locations and there was both common supervision and common control of labor relations. Cream of the Crop (1984) 10 ALRB No, 43, at p. 4.

     1. The Effect of the Presumption

The Committee and the Employer argue that the presumption, aided by the proof of centralization, argue for a single statewide unit. For its part, the UFW recognizes the existence of the presumption, but argues for separate units based upon all the facets of local discretion possessed by supervisors or foreman, the lack of interchange among supervisors and employees, the different electoral majorities, north and south, and the differences in wages. Thus, if the Employer and the Committee may be said to concentrate on the head, the UFW concentrates on the extremities. It is apparent from the Board's cases that I have outlined above that, utilizing the presumption, a statewide unit would be appropriate; without the presumption, although Board cases incline towards separate units, the matter must still be analyzed in accordance with the ordinary Bruce Church criteria.

Since I have found no case in which our Board has discussed what is required to swing the balance away from the preference for a statewide unit, I will consider the matter in terms of basic principles of unit determination. The goal in all unit determinations is to promote stable collective bargaining relationships, for "if the unit determination fails to relate to the factual situation within which the parties must deal, efficient and stable collective bargaining is undermined rather than fostered," Kalamazoo Paper Box Corporation, (1962) 136 NLRB 134, 137:

In 1947, Congress eliminated the extent of organization as the sole criterion for determination of the appropriate unit by amending section 9(b) to read, as it now does, that "in determining the appropriate unit for collective bargaining the extent to which the employees have organized is not [to be] given controlling weight." However, cases after the enactment of 9(b) make it clear that the national Board may consider the extent of organization in defining an appropriate unit, provided there are other factors that play a significant role in its conclusion. Beck Corp. v NLRB (9^th Cir. 1978) 590 F2d 290.

Our Act, of course, contains no language limiting how much weight the Board may assign the extent of organization, from which I take it that the Board has discretion about how to assess its importance.

   C. The Presumption Overcome

I think it fair to say that no one who has followed the course of events at Coastal Berry over the last few years can fail to be struck by the hostility between the group of employees that have organized as the Committee and the UFW. The hostility is so great that, even if (having lost the election in the north) the UFW's margin of victory in Oxnard were large enough to have carried the election statewide, inclusion of the anti-UFW Watsonville/Salinas employees in a unit represented by the UFW would have been a recipe for mischief: the pro-UFW and anti-UFW employees simply do not have that "community of interest which is likely to further harmonious organization and facilitate collective bargaining harmonious interests." Since the effect of the presumption is to make a statewide unit appropriate before the voting even begins, where it can be shown that the appropriateness of such a unit depends upon which organization won the election, it follows that the presumption has been overcome.

However, in view of the Committee's present, and the Employer's slightly more enduring, insistence on a statewide unit, it remains to determine whether the record otherwise shows a sufficient community of interest among the employees of the Employer to warrant certifying the Committee as the collective bargaining representative of all the Employer's agricultural employees in the State of California.

   D. One Unit or Two

Final determination of the appropriate unit must now proceed under the Bruce Church (or NLRB single location) criteria. As I have already indicated, critical in finding statewide units in early ALRB cases was the fact of employee interchange and common supervision; indeed in Bruce Church, Antle, and Norton, the Employer's work force resembled nothing so much as a travelling army, conducting operations now in one area and then another. In Yurosek, however, where the lack of employee interchange and common supervision did not present the picture of a unified, mobile force, separate units were found appropriate.

Under recent NLRB unit cases, it has been similarly held that the lack of significant employee interchange between two groups of the employer's employees "is a strong indicator" that the employees enjoy a separate community of interest, Executive Resources Associates (1991) 301 NLRB No. 50, for "the frequency of employee interchange is a critical factor in determining whether employees who work in different [groups] share a 'community of interest' sufficient to justify their inclusion in a single bargaining unit." Spring City Knitting Co. v NLRB (9^th Cir. 1981) 647 F2d 1011, 1015. Reinforcing lack of employee interchange as a factor in this case is the difference in wages between the north and the south and Coastal's own determination to keep the labor pools separate by discouraging the northern migration of its Oxnard employees.

Similarly, in Esco Corp. (1990) 298 NLRB No. 120, centralized administration and centralized labor relations policy, including the power to hire, fire and discipline, (which Farley possesses, were held not to warrant a multi-location unit when there was not only no interchange of employees, but also not even any significant contact between employees at the different locations. See also, Courier Dispatch Group, Inc. (1993) 311 NLRB No. 72.

With the different union majorities reflected in the individual tallies, added to the differences in the labor pools and the degree of autonomy possessed by the various Regional Managers, I find the separate geographic areas lack the requisite community of interest to constitute a statewide unit.

S/THOMAS SOBEL

INVESTIGATIVE HEARING EXAMINER

DATED: March 6, 2000