Originally printed in . . .

ALRB Ruling on Discharge After Recall Protest

The following Agricultural Labor Relations Board decision is adapted with permission from Agricultural Employers Labor Report, Vol. XVIII, No. 7, April 10, 1992, published by the Agriculture Department, California Chamber of Commerce.

Background

Peltzer Groves, the employer, recalled certain persons of its harvesting employees, including Heliodoro Valencia, from layoff to begin work on November 9, 1989. Valencia and other workers, including Moises Ruiz, who had worked for the company the previous season but who had not been recalled, reported for work on that day.

Ruiz was informed that he would not be rehired. He told Valencia and his other co-workers, and they wanted to know why, since several of the workers were new. Ruiz and Valencia were friends and had commuted to work together regularly, and Valencia was designated to speak on behalf of the workers to ascertain the reason Ruiz was not rehired.

The workers repeated that they would not work until Ruiz was returned to his job. The employer stated he would not hire Ruiz, and that the workers could decide for themselves if they wanted to work or go home. The workers decided to go home. In a one-on-one conversation with Valencia, Richard Peltzer told Valencia that he was fired for leading the protest, according to the general counsel. The employer contends that Valencia quit and was not fired.

ALJ Decision

The Administrative Law Judge (ALJ) credited the testimony of Valencia, who stated that Richard Peltzer, employer, insulted him when he defended the co-worker and demanded that he be rehired or the crew would not start work. After Peltzer told the workers that they could decide for themselves whether to work or go home and several workers left, Peltzer told Valencia that he was causing all the trouble. Peltzer said that he did not want to see Valencia on his property anymore, and told him to "get out."

Richard Peltzer died shortly after the incident, but his son Larry Peltzer, who was harvest superintendent at the time of the incident, testified that he overheard the conversation between his father and Valencia. Larry Peltzer claimed that his father told Valencia he was not discharging him, but that if he wanted to leave, the choice was his. On the basis of Peltzer's demeanor, as well as inconsistency and a lack of plausibility in his account, the ALJ discredited Peltzer's testimony and found that he was not close enough to the participants to hear the conversation.

Finding that Valencia was a more convincing witness than Peltzer and that his account of the incident was more plausible, the ALJ concluded that Valencia had been unlawfully discharged because he encouraged the crew not to work.

Board Decision

The Board affirmed the ruling, findings, and conclusions of the ALJ. Valencia did not seek reinstatement, and the parties had agreed that, if the employer was found liable, the amount of back pay owing would be $415.83 plus interest. Therefore, the Board's order omitted the usual provisions for reinstatement and continuing back pay.

 

Back to: Contents | LMD Main Page | APMP Home