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Gerawan Farming, Inc. v. Agricultural Labor Relations Board

California Court of Appeals, Fifth District

May 30, 2018


          ORIGINAL PROCEEDING; petition for writ of review 42 ALRB No. 1.

          Irell & Manella, David A. Schwarz, S. Adina Stohl; Barsamian & Moody, Ronald H. Barsamian; Michael P. Mallery; and Michael W. McConnell for Petitioner.

          Laura F. Heyck and Todd M. Ratshin for Respondent.

          Martinez Aguilasocho & Lynch, Mario Martinez and Edgar Iván Aguilasocho for Real Party in Interest.

          LEVY, J.

         This case involves the intersection of two of the fundamental purposes of the Agricultural Labor Relations Act (Labor Code, [1] § 1140 et seq.; the ALRA): one is the policy to provide agricultural workers with the right to choose in questions of labor representation through a secret ballot election process (§§ 1140.2, 115');">152, 115');">156-115');">156.7');">7; see J.R. Norton Co. v. Agricultural Labor Relations Bd. (197');">79) 26 Cal.3d 1, 8, 34); the other is the policy to prevent and remedy unfair labor practices committed by employers.[2" name="ftn.FN2" id="ftn.FN2">2] (§§ 1160-1160.9.) Both of these important statutory goals were directly at stake-and to some extent at odds-in the proceedings below before the Agricultural Labor Relations Board (the Board). An election to decide whether to decertify an incumbent union (the United Farm Workers of America or the UFW) had been ordered by the Board based on an employee petition, and a vote was actually taken, but from the Board's perspective there were lingering issues of whether alleged misconduct by the employer, Gerawan Farming, Inc. (Gerawan), may have tainted the employees' decertification effort. The ballots were impounded and administrative proceedings conducted. In the end, as reported in its decision in Gerawan Farming, Inc. (2016) 42 ALRB No. 1, the Board nullified the employees' election as a remedy for Gerawan's purported unfair labor practices. By petition for review under section 1160.8, Gerawan challenges not only the Board's findings of unfair labor practices, but also the remedy imposed of setting aside the election. As more fully explained herein, we conclude the Board erred in several of its findings of unfair labor practices as well as in the legal standard applied in reaching its remedial conclusions. Accordingly, we set aside 42 ALRB No. 1, in part, and remand the matter to the Board to reconsider its election decision in a manner consistent with the views set forth in this opinion.[3]


         Our factual introduction to this case is presented in two parts. In this initial part, we focus attention on key procedural events that culminated in Gerawan's writ of review, including the election itself. We also provide an introductory outline of our legal analysis of certain of the material issues. By framing these core events and issues up front, we hope to minimize the risk to the reader of losing the forest for the trees in this lengthy and complicated opinion. After this focused synopsis is given, a more comprehensive overview of the factual and procedural background will follow.

         On October 25, 2013, farmworker Silvia Lopez (also referred to as the petitioner) filed a petition for decertification to the Board, signed by herself and a considerable number[4] of her coworkers at Gerawan, seeking an election to allow the agricultural workers at Gerawan to decide for themselves whether or not the incumbent union, the UFW, would continue to be their certified bargaining representative.[5] Under the relevant provisions of the ALRA, an election will be ordered if an adequate threshold showing has been made such that the Board has reasonable cause to believe that a bona fide question of representation exists. (See §§ 115');">156.3 & 115');">156.7');">7.)[6] Here, in response to the petition for decertification, and based upon its Regional Director's determination that the petition met the statutory requirements for holding an election, [7');">7" name="ftn.FN7');">7" id="ftn.FN7');">7">7');">7] the Board ordered an election “be held on Tuesday, November 5, 2013.” On that date, the farmworkers at Gerawan cast their votes in a secret ballot election conducted by Board staff. It was arguably the largest election in ALRA history. However, rather than promptly tallying the ballots[8] preliminary to a consideration of any election objections, the Board had ordered the ballots impounded. To the present day, the ballots remain impounded (i.e., in storage under the Board's possession and control), and they have never been opened and counted.

         In September of 2014, more than 10 months after the election, a consolidated evidentiary hearing was commenced before an administrative law judge (ALJ) assigned by the Board to hear the following issues together: (i) the UFW's election objections, and (ii) the General Counsel of the Board's (the General Counsel's)[9] related claims that Gerawan committed unfair labor practices (e.g., employer instigation of and improper assistance to the decertification movement) which allegedly impacted the validity of the decertification petition and required the election to be set aside.[10] Four distinct parties participated through their respective counsel in the lengthy ALJ hearings, including the General Counsel/the Board, Gerawan, the UFW, and Silvia Lopez (as the petitioner). After the conclusion of the evidentiary proceedings, the ALJ issued a written decision finding that Gerawan committed pre-election unfair labor practices that, in the ALJ's view, tainted the decertification petition. Although the ALJ rejected as unsupported the allegations of employer instigation, the ALJ found that unlawful employer assistance and other violations had occurred. Gerawan's offending conduct was found to include, among other things, assistance of the workers' decertification movement by means of discriminating in favor of the pro-decertification signature gatherers, allowing Silvia Lopez to work reduced hours (which she often used to gather more signatures), and failing to take action in response to certain protests and work stoppages on the part of pro-decertification workers. As a remedy for Gerawan's misconduct, the ALJ concluded that the petition for decertification would have to be dismissed and the election set aside. Exceptions to the ALJ's decision were made to the Board, and the matter came before the Board for its review. With minor changes, the Board affirmed the ALJ's decision and rationale in its entirety, including the relief granted. Thus, the Board upheld the dismissal of the decertification petition and nullification of the election based upon the findings that Gerawan committed pre-election unfair labor practices that tainted the decertification effort. The Board's decision was reported as Gerawan Farming, Inc., supra, 42 ALRB No. 1.

         By petition for review under section 1160.8, Gerawan challenges the decision of the Board in Gerawan Farming, Inc., supra, 42 ALRB No. 1. As noted, Gerawan's petition for review not only attacks the findings that it committed unfair labor practices, but also the drastic remedy imposed by the Board of setting aside the employees' secret ballot election. The Board and the UFW object to any review by this court of the Board's election-related decision, insisting that Gerawan must first follow the technical refusal to bargain procedure before any judicial review of that particular determination may be obtained.

         Under the unique procedural posture of this case, where (i) the technical refusal to bargain procedure was wholly inadequate under circumstances created by the Board's own doing, [11] and (ii) the relief granted by the Board of setting aside the election in the consolidated hearing was based upon and inextricably intertwined with the Board's unfair labor practice findings, we agree with Gerawan that our review may include both the unfair labor practice findings and the legal soundness of the conclusions and the election-related relief premised on those findings. To some extent, then, we will consider the remedy imposed by the Board of setting aside the election. At the same time, we take a guarded approach. Since the Board has been entrusted by the Legislature with discretion to make election certification decisions (§§ 115');">156.3, 115');">156.7');">7), our intention is to correct legal error, not substitute our discretion for that of the Board.

         Having reviewed the entire record, we conclude that several of the unfair labor practice findings relied on by the Board were unsupported by the record as a whole. This alone would warrant returning the case to the Board to reconsider its remedy. More than that, however, it appears that the Board applied an incomplete or inadequate legal standard in reaching its decision to set aside the election. Specifically, the Board applied a narrow “taint” (or taint on the petition) standard under which it failed to meaningfully consider whether a reasonable basis existed to conclude that Gerawan's misconduct interfered with the employees' ability to exercise free choice in the election. Without that issue being squarely addressed by the Board and such interference reasonably found to have occurred on the record before it, the drastic remedy of throwing out the election in a case such as this one[2" name="ftn.FN12" id="ftn.FN12">12] would appear to be either arbitrary or punitive (or both)-i.e., unnecessarily disenfranchising the employees as a punishment for the employer's wrongdoing. In essence, the Board so narrowly focused on punishing the employer that it effectively lost sight of the correlative statutory value of protecting the farmworkers' right to choose, which was and is a fundamental part of the Board's mission under the ALRA. We believe the Board's one-sided approach constituted legal error, as more fully explained in the discussion portion of this opinion. For these and other reasons, we vacate the portion of the Board's decision in Gerawan Farming, Inc., supra, 42 ALRB No. 1 dismissing the petition and setting aside the election, and remand the matter back to the Board to reconsider its decision in light of the corrected findings and legal standard set forth in this opinion.[13] For purposes of remand, we also address certain recurring issues that bear upon the remanded proceedings, including the need to issue a tally of ballots.


         At this point, we present a more comprehensive factual and procedural background. We do so in an effort to provide the surrounding context within which the relevant events occurred as well as to summarize the historical flow of factual and procedural events. This is a complicated case, the particular events of which are difficult to appreciate apart from an understanding of the larger whole, and so we think it is best not to view matters in a vacuum. Although we summarize some of the testimony in this background section, we do so merely to set the stage for our later discussion. We are not competing here with the formal findings of the ALJ or the Board. Any disagreements we have with the Board's factual findings on particular issues are separately discussed, later herein, in the “Discussion” portion of this opinion.

         Gerawan and the UFW

         Gerawan is the largest grower of tree fruit in California, both in terms of the number of employees and the amount of fruit that it grows. A family-owned farming business, Gerawan's owners and officers include Ray Gerawan, Daniel (Dan) Gerawan and Mike Gerawan, among others. In addition to growing and harvesting tree fruit such as peaches, nectarines, plums and apricots, Gerawan also grows and harvests substantial quantities of table grapes and wine grapes. Gerawan's extensive farming operations are conducted on thousands of acres of farmland in two main locations: the west side ranches in the Kerman area, and the east side ranches in the Reedley/Sanger area. Although the number of agricultural workers employed by Gerawan during the time frame of the second decertification[14] petition in the fall of 2013 is not precisely stated in the record, it was estimated that, during the tree fruit harvest, there would be about 50 to 55 crews, with 20 to 50 workers per crew.[15');">15" name="ftn.FN15');">15" id="ftn.FN15');">15">15');">15]

         The UFW is a labor organization (or union) as defined by section 1140.4. In 1992, following a 1990 election, the UFW was duly certified by the Board as the collective bargaining representative of Gerawan's agricultural employees. According to Gerawan, after some initial bargaining sessions at that time, the UFW disappeared from the scene and made no contact whatsoever for nearly two decades before it returned in late 2012. At the administrative hearing below, the scope of examination was generally limited to the four- or five-year period prior to the decertification election. The ALJ did not permit evidence to establish an abandonment “defense, ” but did allow workers to testify whether they felt abandoned by the UFW in a colloquial sense, rather than as a legal conclusion.[16" name= "ftn.FN16" id="ftn.FN16">16]

         Gerawan asserted that during the intervening years after the UFW disappeared, Gerawan's agricultural operations and workforce grew substantially in size, its methods of production changed and evolved, while Gerawan allegedly “became and maintained its position as the highest paying tree fruit and table grape farming operation” in the region.

         The UFW Returns in Late 2012

         In October of 2012, the UFW sent a letter to Gerawan reasserting its status as the certified bargaining representative of Gerawan's agricultural employees and demanding that Gerawan bargain in good faith. The letter also insisted that Gerawan provide to the UFW the names and addresses of all of Gerawan's agricultural employees. Gerawan provided employee information to the UFW, and negotiations between Gerawan and the UFW commenced in early 2013.

         Gerawan's Communications to its Employees

         Gerawan communicated with its employees about these significant new developments. A series of written notices (or mailers) were distributed to Gerawan's employees, either by mail or as an enclosure in the envelopes that contained the employees' paychecks. The first of these mailers, dated November 13, 2012, was signed by “Ray, Mike, and Dan Gerawan” and told the field workers the following message: “22 years ago, the United Farm Workers won an election to represent the agricultural employees of Gerawan Farming. However, except for one meeting 20 years ago, they have not contacted us since then. A few weeks ago we received the attached letter from the UFW demanding that we turn over your personal information to them and that we begin negotiating with them. [¶ ] One of the reasons we have to turn over your personal information to the UFW, including your home address, is because the UFW normally uses such information to visit employees' homes. It is up to you whether you wish to talk to them if they visit your home. [¶ ] As your employer, we did not want this to happen but we have no control over this. The UFW says they represent you, even though you probably did not even work here 22 years ago and some of you were not even born yet.”

         Over the next several months, Gerawan sent follow-up mailers. The follow-up mailers were written in a question-and-answer format. They purported to respond to a few basic, recurring questions or misconceptions (e.g., will the union likely make the workers pay dues?), but otherwise referred the employees to the ALRB as the appropriate agency to which they may express concerns or ask any further questions, noting that “[e]mployers are prohibited from helping their employees in such matters.”[7');">7" name= "ftn.FN17');">7" id="ftn.FN17');">7">17');">7] A subsequent mailer in April of 2013 was more specific, informing employees that the UFW was seeking “3%” of their paychecks as dues (per the most recent negotiations), and that it (the UFW) would have Gerawan fire employees who refused to pay any money to the union. This last mailer also told the workers, “AS ALWAYS, OUR DOOR IS OPEN, ” and listed a phone number for Ray, Mike, or Dan Gerawan, and also for Jose Erevia, the human resources manager at Gerawan who had the title “Employee Outreach and Regulatory Compliance Manager.”

         Additionally, hourly pay raises were announced by a series of flyers sent out by Gerawan in March of 2013 (e.g., from $9 to $10 per hour), indicating that the decisions to grant such pay raises were from “Ray, Mike and Dan, ” and claiming that Gerawan consistently pays higher wages than other companies in the industry. The flyers did not credit the UFW for these pay raises, but expressed that they were solely Gerawan's decision, while noting the union was properly informed of the raises and that “we assume they will not cause any unnecessary delay.” Jose Erevia was typically listed as the contact person on such flyers.

         Months later, after the filing of the first petition for decertification in September 2013, Dan and Norma Gerawan[18] visited each of the crews with Jose Erevia. The basic message communicated to the crews was the same: An election was likely going to be scheduled soon, and the workers were reminded that they were free and had a right to choose whatever they thought was in their best interest.[19" name="ftn.FN19" id= "ftn.FN19">19] Other pre-election communications included a consultant who spoke to the crews and expressed anti-union sentiments (i.e., that in her personal experience, unions often do not keep promises), and a DVD that was distributed to employees in October 2013, containing statements which, according to the General Counsel, solicited grievances concerning the union and generally cast the union in a negative light.[20" name="ftn.FN20" id= "ftn.FN20">20]

         Gerawan Trains its Crew Bosses to Avoid Union-Related Activity or Discussion

         Beginning in November 2012, Gerawan provided a series of training sessions to its crew bosses and supervisors.[21" name="ftn.FN21" id="ftn.FN21">21] The training was primarily conducted by Jose Erevia, and its ostensible purpose was to ensure that the crew bosses and supervisors understood and respected proper boundaries concerning union issues. The crew bosses and supervisors were told that they should not get involved in union-related discussions or activities (either pro or con) and should not attempt to answer workers' questions.[22" name="ftn.FN22" id="ftn.FN22">22] If workers had questions, the crew bosses were instructed to have them contact Jose Erevia. In separate meetings with each of the crews, Gerawan's agricultural workers were informed that their crew bosses and supervisors were not going to be responding to questions about the union. The workers were told that if they had questions, they could contact Jose Erevia.

         MMC is Commenced

         During the first three months of 2013, approximately 10 or 12 bargaining sessions took place between Gerawan and the UFW. In late March of 2013, the UFW filed a declaration with the Board seeking to have the bargaining parties (Gerawan and UFW) ordered to commence a statutory process referred to as “mandatory mediation and conciliation” (or MMC) (see § 1164 et seq.).[23" name= "ftn.FN23" id="ftn.FN23">23] The Board granted that request in April of 2013, and the MMC process was underway in approximately May of 2013.[24" name= "ftn.FN24" id="ftn.FN24">24]

         A Chance Meeting Outside of the Mediation in Modesto

         In June of 2013, Angel Lopez, an agricultural worker at Gerawan, heard that a mediation was taking place between Gerawan and UFW in Modesto, California. Angel was concerned that the union would begin taking 3 percent from the workers as soon as a contract was in place. He wanted to learn what was going on at the mediation, so he asked his mother-in-law, Silvia Lopez, to drive him to Modesto to attend. When they arrived at the mediation location in Modesto on June 11, 2013, neither of them were allowed to enter the mediation session. While waiting in the hallway outside the mediation session, an attorney, Paul Bauer, who was there representing another worker against the union, introduced himself and explained the nature of what was going on. Angel and Silvia Lopez asked what, if anything, could be done, and attorney Bauer mentioned that under the ALRA workers had a right to file a petition to seek an election. Angel and Silvia Lopez asked attorney Bauer if he would help them. Attorney Bauer said that he might be able to help, he gave them his card, and an appointment was scheduled for a later date at attorney Bauer's office.

         Silvia Lopez Restarts Employment at Gerawan

         Approximately two weeks after the trip to Modesto but before the appointment with attorney Bauer, Silvia Lopez returned to work at Gerawan as an agricultural worker. She had been employed by Gerawan in the past, but that was prior to 2010. Beginning in 2010, she had tried selling Herbalife instead, but that did not work out for her financially, so she planned on returning to Gerawan. She did so on or about June 25, 2013. Silvia Lopez stated that her decision to resume employment at Gerawan was also motivated, in part, by a concern she had to protect Angel.[25" name= "ftn.FN25" id="ftn.FN25">25] Sometime during the summer of 2013, Silvia Lopez's daughters Belen and Lucerita also began working at Gerawan.

         Appointment With Attorney Bauer-Silvia Lopez Agrees to Be The Petitioner

         A number of agricultural workers employed at Gerawan came to the appointment at attorney Bauer's office along with Silvia and Angel Lopez. Attorney Bauer explained to them more fully about the decertification process, the need to gather a sufficient number of signatures, and the rules that had to be followed in doing so. According to Silvia Lopez, attorney Bauer informed them that the signature gathering should be done during the lunch break, [26" name= "ftn.FN26" id="ftn.FN26">26] or before or after work hours, and that they should not ask for the help of anyone who was a foreman or supervisor. The workers decided that they would attempt to gather the requisite signatures for obtaining a decertification election. However, there was a need for one person to serve as the petitioner. Silvia Lopez agreed to take that lead role. She testified that she did so partly because she wanted to protect her son-in-law, Angel, from undertaking that task himself.[27');">7" name="ftn.FN27');">7" id="ftn.FN27');">7">27');">7]

         Signature Gathering Begins

         Silvia Lopez, Angel Lopez, and a core group of about seven other agricultural workers at Gerawan became the main participants in the signature-gathering effort, although there were estimated to be about 20 or more workers who helped in some capacity or turned in some signature sheets. A few of the signature gatherers were family members of Silvia Lopez.[28" name="ftn.FN28" id= "ftn.FN28">28] The signature-gathering effort began within a week or two after Silvia returned to work, or approximately in late June or early July of 2013. Silvia Lopez testified that as signature sheets were completed and turned in to her by the other signature gatherers, she did not check the names, but she counted and kept track of the total number of signatures.

         Lobbying Trip to Sacramento Regarding Senate Bill No. 25 (SB No. 25)

         In August 2013, Dan Gerawan planned to meet with legislators and others in Sacramento to oppose a pending bill known as SB No. 25. He believed SB No. 25 would unfairly expand the MMC process and effectively make it perpetual. The day before the trip, he asked Jose Erevia to identify for him five or six agricultural employees who might have an interest in opposing the bill. Jose Erevia called back with a list of names that included Silvia Lopez, Rolando Padilla, Carlos Uribe Estrada, Jose de la Rosa and Rosa Madrigal.[29" name= "ftn.FN29" id="ftn.FN29">29] Dan Gerawan contacted these workers by telephone and made it known to them that they were welcome to join him the following day in Sacramento, if they wanted to attend and speak their minds concerning the bill. The lobbying trip took place on August 14, 2013, and the invited workers arrived in Sacramento at the designated location. They met up with Dan Gerawan and walked as a group to talk to various legislators and staff. Barry Bedwell, the President of the California Fresh Fruit Association, was also there. Dan Gerawan introduced him to the workers, and Bedwell came with them for some of the lobbying visits that day. It was the first time Bedwell had met Silvia Lopez.

         Fruit Giveaway Program Upgraded

         Gerawan had a practice of giving away fresh fruit to its employees at certain locations, on a particular day each week (e.g., Friday after work). The program helped to reduce theft of fruit from the fields. In years past, the fruit was in large bins for the workers to select the fruit in a self-serve fashion. By 2013, the setting for the fruit giveaways was improved. The fruit was situated in smaller trays or containers on tables, and fruit flavored beverages were often provided. The fruit giveaway events were under a shaded canopy, and sometimes Dan Gerawan and his wife would attend and greet the workers.[30]

         The Board Seeks Injunction in Superior Court and Conducts Remedial Training

         On July 15');">15, 2013, the UFW filed an unfair labor practice charge against Gerawan, alleging that certain of Gerawan's supervisors or foremen were involved in the circulation of a decertification petition and/or coerced or encouraged employees to sign a petition to decertify the UFW. This led to an investigation by the Regional Director of the Board, Silas Shawver. On August 19, 2013, the Board (by Silas Shawver on behalf of the General Counsel) filed an ex parte application for a temporary restraining order (TRO) in the Fresno County Superior Court. The Board alleged three separate incidents of direct supervisor involvement in the circulation of the decertification petition.[31] The Board's application sought injunctive relief under section 1160.4[2" name="ftn.FN32" id= "ftn.FN32">32] to prevent such conduct from continuing, and also sought an order granting the Board access to Gerawan's employees to train them in their rights under the ALRA. The purpose, as stated by Mr. Shawver at the TRO hearing, was to protect the employees' ability to exercise their free choice and to increase the likelihood that any future decertification election would not be fatally tainted. He acknowledged that notifying the workers of their rights under the ALRA would be a factor to be considered in a decision concerning an election because all of the workers would have been informed of their rights to involve themselves in union decertification activities (or not) without interference: “[T]hat is helpful in finding that there has been more of a democratic process, free from interference when we know that workers have been properly informed of their rights.”

         The Superior Court granted the TRO, but denied the Board's request for access. The following day, Dan Gerawan personally invited the Board to conduct company-wide noticing and training of all of its employees and supervisors. The Board accepted the proposal. Access was granted to the Board, and the Board conducted noticing or training of over 2, 000 Gerawan employees on August 28, 2013 and August 29, 2013. Separate training of the supervisors occurred on Saturday, August 24, 2013. The Board's noticing or training meetings were conducted by Regional Director, Silas Shawver.

         On August 22 and 23, 2013, Jose Erevia personally met with all Gerawan crew bosses and supervisors to explain the TRO and the need to comply fully with it.

         At the September 11, 2013, preliminary injunction hearing in the Superior Court, Silas Shawver reported to the court on the Board's training of the employees: “We went and spoke with all of the crews to give them information about-about their rights under the Act and also about the process and the importance of not having interference in their ability to make a decision as to supporting the union or supporting an effort to decertify the union as a representative.” He also reported that the training of Gerawan's supervisors was a positive experience, including “full” discussions of the law and the consequences of supervisor involvement. Finally, he informed the Superior Court that, since the time the temporary restraining order issued, he had not learned of any further incidents of direct supervisor involvement. In short, the remedial process appeared to have been a success regarding the alleged problem of supervisor involvement.

         Gerawan Asserts That UFW Sought to Entrap Crew Bosses

         Jose Erevia testified that on August 26, 2013, he received an anonymous telephone call, alerting him that the UFW was planning to have pro-UFW workers attempt to trap crew bosses into turning down requests to gather pro-union signatures during worktime. The next day, Jose Erevia directed all crew bosses to read a statement to their crews that included the following message: “To avoid false accusations of wrongdoing or being trapped into committing violations, do not ask me for … permission to gather signatures or distribute promotional material. If you choose that activity then do it during your rest periods, meal period, and off-the-clock periods when you are free to use your time that way.” Later, as predicted by the anonymous tip, there were multiple incidents in several crews where the crew bosses were approached by individuals who asked for permission to circulate documents or obtain signatures for the union during work hours.[33] Consistent with their training, the crew bosses did not grant the requesting workers permission to gather signatures during their work hours, but only at lunchtime or on breaks.

         The ALJ found that “there was credible evidence that pro-UFW workers requested permission from their crew bosses to circulate pro-UFW petitions during work time, and that the foremen rejected those requests.”[34] As will be seen, the ALJ further concluded that the requests made by pro-UFW workers together with the crew bosses' qualified denials were sufficient to show that Gerawan treated pro-union workers differently in regards to petitioning activity.

         First Petition Filed and Rejected by Regional Director

         On September 18, 2013, Silvia Lopez filed the first petition for decertification with the Board. On September 25, 2013, Regional Director Silas Shawver dismissed the first petition. The reasons given for the dismissal included that the petition fell short of making a sufficient showing of interest (i.e., not enough signatures), and that several signatures appeared to have been forged.[35]

         Worker Protests and Stoppages

         In response to the dismissal of the first petition, the decertification proponents did not cease their efforts, but immediately began gathering signatures for a second petition. More than that, on September 30, 2013, only a few days after the rejection of the first petition, Silvia Lopez and others in the pro-decertification group reacted by carrying out a work stoppage, which involved blocking work entrances to the fields early in the morning and urging all the arriving workers to gather at a designated location where a massive protest took place. Silvia Lopez and other individuals spoke at the protest, many of the workers carried protest signs, and television news reporters arrived and interviewed participants. Silvia Lopez testified that the main reason for the September 30 work stoppage and protest was not to gather signatures, but to protest the dismissal of the first petition and send a message to the Board that the workers really wanted an election. The ALJ did not find credible Silvia Lopez's testimony that the work stoppage was not to gather signatures. Several other decertification proponents had used the stoppage as an opportunity to gather signatures, and Silvia Lopez acknowledged that about 800 to 1, 000 new signatures (for the second petition) were collected during the work stoppage.

         On October 2, 2013, after Silvia Lopez's plea for financial help while on a talk radio program resulted in the California Fresh Fruit Association (or CFFA)[36] agreeing to sponsor a bus trip to Sacramento, hundreds of workers traveled to Sacramento to protest and/or seek redress from the Board at its main office. The CFFA is comprised of numerous grower members, and Gerawan was a prominent member of that Association. Dan Gerawan knew the Association's President, Berry Bedwell, and communicated with him on a regular basis during that time period.

         There were also other protests engaged in by the pro-decertification workers, including in front of the Visalia regional office of the Board, where Silas Shawver's office as Regional Director was located.

         Second Petition Filed and the November 5, 2013 Election

         Silvia Lopez filed the second petition for decertification on October 25, 2013.[7');">7" name="ftn.FN37');">7" id= "ftn.FN37');">7">37');">7] On October 31, 2013, Regional Director Silas Shawver issued a letter finding that an adequate showing of interest had been made, but nevertheless blocking the prospective election on the ground that Gerawan had committed unfair labor practices that allegedly made it “impossible” to conduct an election “in an atmosphere where employees can exercise their choice in a free and uncoerced manner.” The Board vacated Shawver's blocking decision and ordered that a secret ballot election be conducted on November 5, 2013. (Gerawan Farming, Inc., Admin. Order No. 2013-46 (Nov. 1, 2013) p. 4');">p. 4.) The Board's order criticized Shawver's failure to mention “the degree to which remedial efforts by the General Counsel and agreed upon by Employer” may in fact have successfully done so, particularly when such efforts were “represented … to the Fresno Superior Court” as having “remedied some of the alleged unfair labor practice charges ….” Also, many of the charges were up to 10 months old, yet no complaint had been filed by the General Counsel until the day prior to the blocking letter. The Board held: “There are enough questions regarding the degree to which any taint has been remedied, as well as questions as to the appropriateness of relying on the late-filed complaint to block the election, to justify holding the election, impounding the ballots, and resolving these issues through election objections and litigation of the complaints.” Accordingly, the Board ordered that “the election be held on Tuesday, November 5, 2013, ” and that “the ballots be impounded pending resolution of any election objections and related unfair labor practice complaints.”

         The election was duly conducted on November 5, 2013. Presumably, thousands of Gerawan's agricultural employees cast their secret ballot votes that day. As noted, all of the workers' ballots were impounded by the Board and remain uncounted.

         UFW's Election Objections Filed

         On November 13, 2013, the UFW filed its written election objections. The election objections asserted that numerous unfair labor practices and/or other misconduct by Gerawan, as the employer, warranted the dismissal of the election petition and setting aside the election. The categories of employer wrongdoing alleged in the UFW's election objections included the following: (1) instigation of the decertification campaign; (2) unlawful assistance to the decertification campaign through the involvement, coercion or encouragement of crew bosses to pressure workers into signing the petition; (3) unlawful assistance to the decertification campaign through favorable (i.e., disparate) treatment of decertification signature-gatherers that was not shown toward pro-union employees; (4) unlawful assistance by providing the decertification petitioner with an attorney; (5) unlawful assistance to the decertification campaign by paying for, supporting or coercing worker participation in anti-UFW protests; (6) unilaterally granting wage increases and other benefits (e.g., fruit giveaways) to influence employees; (7');">7) hiring the decertification petitioner solely to engage in the decertification campaign; (8) communications to employees that tended to disparage or undermine the union; (9) direct dealing and solicitation of grievances; (10) threats of bankruptcy, closure, or loss of jobs if the union were not removed; and (11) threats of violence directed at UFW supporters.

         Consolidated Hearing of Election-Related Issues Ordered

         On December 19, 2013, in response to the election objections, [38] the Board issued an order in Gerawan Farming, Inc. (2013) 39 ALRB No. 20, to indicate which matters would be set for hearing. The Board determined that the objections alleging the employer unlawfully instigated or significantly assisted the decertification campaign would be set for a hearing.[39] Additionally, the objection alleging disparate treatment would also be set for hearing, conditioned on the outcome of the General Counsel's pending investigation.[40] Many of the other objections were also set for hearing, conditioned on the outcome of the General Counsel's investigation thereof, but with the further proviso that, as to such other objections, “a ballot count” would be required to determine whether the misconduct at issue “had a tendency to affect free choice in the November 5, 2013 election.” (Id. at pp. 5-15');">15.) Among the specific claims of objectionable conduct as to which a ballot count would have to be considered was the alleged employer support of anti-UFW protests (including the October 2, 2013 bus trip), the one-day piece-rate increase, and the claims of direct dealing or solicitation of grievances. (Id. at pp. 5-13.)[41]

         The Board notified the parties that (i) the UFW's election objections and (ii) the related unfair labor practice allegations (in the General Counsel's complaint) potentially affecting the validity of the election would be heard together in a consolidated administrative hearing; however, the Board was awaiting the completion of the General Counsel's investigation of pending unfair labor practice charges. On July 31, 2014, the Board finally ordered that the executive secretary cause the matter to be set for hearing on September 29, 2014.

         On September 9, 2014, after a 10-month investigation and only 20 days before the scheduled hearing date, the General Counsel filed an Amended Consolidated Complaint, which included greatly expanded allegations of unfair labor practices against Gerawan.[2" name="ftn.FN42" id= "ftn.FN42">42] When other parties objected to this last-minute pleading, the Board directed the ALJ to focus the hearing on “the pre-election issues and thus to resolve the ballot box dispute ….”

         The Amended Consolidated Complaint included allegations that Gerawan had committed unfair labor practices which were described as follows: (1) undermining the UFW's status as bargaining representative by a series of communications to employees; (2) unilaterally improving the terms or conditions of employment in order to undermine the union (i.e., granting unilateral pay increases or other benefits); (3) instigating, supporting or assisting the decertification campaign in a variety of ways, including hiring Silvia Lopez for that purpose; (4) assisting the decertification effort through the conduct of various crew bosses who either directly involved themselves in the signature gathering process and/or allowed worktime signature gathering; (5) assisting the decertification effort by allowing the decertification proponents preferential attendance flexibility; (6) assisting the decertification effort by supporting or facilitating protest activities engaged in by decertification proponents against the Board and against the UFW; (7');">7) assisting the decertification effort by providing legal representation to the decertification petitioner; and (8) threatening workers that the company would go out of business or their jobs would be lost if UFW were to obtain a collective bargaining agreement. In the prayer of the Amended Consolidated Complaint, the Board's General Counsel sought, as a specific remedy for the alleged unfair labor practices, “the destruction of the ballots and the dismissal of the Petition for Decertification.”

         Administrative Hearings and ALJ Decision

         The consolidated administrative hearings conducted by the ALJ began on September 29, 2014, and ended on March 12, 2015');">15, consisting of 105 hearing days and the examination by respective counsel of approximately 130 witnesses. On September 17');">7, 2015');">15, the ALJ's written decision was issued. The ALJ framed the “overall question” in the matter as “whether the employer, Gerawan Farming, Inc., … committed unfair labor practices or other objectionable conduct with respect to the decertification election that was held on November 5, 2013.” A large part of the ALJ's decision consisted of weighing and evaluating the credibility of the many witnesses and of particular portions of their testimony.[43]

         In the ALJ's decision, a number of the more serious allegations against Gerawan were rejected as unsupported. According to the ALJ's decision, the evidence failed to show that Gerawan instigated the decertification movement. The evidence also failed to show that Gerawan hired Silvia Lopez for the purpose of organizing the decertification campaign or that she was otherwise acting as Gerawan's agent. As found by the ALJ, Gerawan did not pay for Silvia Lopez's legal representation, either directly or indirectly, and there was no credible evidence that Silvia Lopez was paid anything by her employer other than for the hours she worked in the fields. Moreover, the evidence failed to show any credible threats were made to workers of jobs being lost, the company going bankrupt, closure of operations, or other such threats of what would happen if the union stayed. Nor was there any credible evidence of reprisals against pro-UFW workers, nor of threats of violence or any actual violence.

         Although the ALJ found that worktime signature gathering incidents had occurred in six crews, and that there was an instance of a crew boss's direct involvement in one FLC crew, the ALJ stated that these violations were not sufficient by themselves to set aside an election. According to the ALJ, it was only in combination with the other violations committed by Gerawan that the ALJ decided that the appropriate remedy would be to set aside the election.

         The other violations, as found by the ALJ, included various forms of unlawful assistance by Gerawan to the decertification campaign, including disparate treatment of pro-decertification workers in regard to signature gathering activity during work hours; allowing Silvia Lopez to take extensive time off work (a “virtual sabbatical”) which was often devoted to signature gathering; and facilitating and/or failing to prevent, intervene in or respond to the occurrence of several pro-decertification protests and work stoppages.[44] Additional employer misconduct found by the ALJ included granting a unilateral well-timed piece-rate increase for one day during grape harvest; and solicitation of grievances against the union through various flyers and mailers suggesting that the union was worthless and impotent and the person to contact to resolve any issues was Jose Erevia.

         In holding that the election should be set aside, the ALJ stated in a conclusory manner that the cumulative effect of the employer's conduct made “it impossible to know if the signatures collected represent the workers' true sentiments, ” and likewise that the employer's conduct “created an environment which would have made it impossible for true employee free choice when it came time to vote.” No reasoned explanation or analysis, grounded in the factual record, was provided by the ALJ to substantiate these particular conclusions or to show that any reasonable causal connection existed between Gerawan's conduct and the purported loss of employee free choice.

         The Board's Decision

         Exceptions to the ALJ's decision were presented to the Board, and the matter came before the Board for its review. On April 15');">15, 2016, in Gerawan Farming, Inc., supra, 42 ALRB No. 1, the Board affirmed with minor changes[45] the unfair labor practice findings and the conclusion of the ALJ to dismiss the decertification petition and set aside the election. The Board summarized its holding as follows: “[T]he ALJ correctly held that Gerawan engaged in objectionable conduct and committed numerous unfair labor practices. Although we affirm the ALJ's conclusion that Gerawan did not instigate the decertification effort, we agree that Gerawan improperly inserted itself into the campaign.” The Board held that Gerawan, as employer, inserted itself into the decertification campaign when it did the following: (1) “discriminatorily permitted anti-Union signature gathering during worktime while prohibiting pro-Union activity of the same kind”; (2) “granted [Silvia] Lopez a ‘virtual sabbatical' to conduct the decertification effort, ” and “did not discipline signature gatherers for missing work, but continued to enforce its absence policies among the rest of the crew”; (3) “tacitly approved an unlawful work blockage, which, although instigated by the decertification petitioner supporters, directly facilitated the gathering of the signatures for the showing of interest”; (4) “colluded with the CFFA to make arrangements for the decertification petitioners to travel by bus to Sacramento in order to protest the dismissal of the first decertification petition, thus condoning employees' taking time off from work to join the protest”; and (5) “granted a wage increase during the decertification campaign and unlawfully solicited grievances.”

         Regarding the remedy of setting aside the election, the Board adopted the same bare conclusions expressed by the ALJ. The Board's language mirrored that of the ALJ, stating: “Given the totality of the circumstances and Gerawan's unlawful actions, we conclude that it is impossible to know whether the signatures gathered in support of the decertification petition represented the workers' true sentiments. We affirm the ALJ's conclusion that Gerawan's unlawful and/or objectionable conduct tainted the entire decertification process, [and] we adopt his recommended remedy dismissing the decertification petition, and setting aside the election ….” (See Gerawan Farming, Inc., supra, 42 ALRB No. 1, p. 69.) As with the ALJ decision, the Board decision in 42 ALRB No. 1 focuses almost entirely on the employer's wrongdoing, without meaningfully addressing, considering or analyzing the impact of the employer's conduct on employee free choice or the outcome of the election.

         Petition for Writ of Review

         On May 13, 2016, Gerawan filed the instant petition for writ of review. On January 20, 2017');">7, after receiving the administrative record and considering the parties' briefing, we agreed to review this matter.


         Due to the length of this opinion, we offer the following roadmap of what our discussion below will entail, in sequential order: (1) a summary of the appellate standard of review for our consideration of the unfair labor practice findings; (2) our review of each of the challenged findings of unfair labor practices; (3) an explanation of why we may consider the Board's election-related remedies; (4) our conclusion that the Board applied an incomplete or improper legal standard in deciding to dismiss the election in this case; and (5) a summary of our disposition and the matters to be considered by the Board on remand.

         I. Standard of Review

         When reviewing questions of fact, we uphold the Board's findings if supported by substantial evidence on the record considered as a whole. (§ 1160.8; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (197');">79) 24 Cal.3d 335');">24 Cal.3d 335, 349; Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 20-21.) Under this standard: “[W]e do not reweigh the evidence. If there is a plausible basis for the Board's factual decisions, we are not concerned that contrary findings may seem to us equally reasonable, or even more so.” (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 7');">743');">34 Cal.3d 7');">743, 7');">756-7');">757');">7.) “Furthermore, those findings and conclusions that are within the Board's realm of expertise are entitled to special deference. [Citation.] And, because the evaluation of witnesses' credibility is a matter particularly for the trier of fact, the Board's findings based on the credibility of witnesses will not be disturbed unless the testimony is ‘incredible or inherently improbable.' [Citations.]” (Harry Carian Sales v. Agricultural Labor Relations Bd. (1985) 209');">39 Cal.3d 209, 220.)

         However, we may not take a rubber stamp approach to our review of the Board's factual findings. (Vessey & Co. v. Agricultural Labor Relations Bd. (1989) 210 Cal.App.3d 629, 643.) “‘[T]he test of substantiality must be measured on the basis of the entire record, rather than by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence.' [Citations.]” (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 7');">721');">29 Cal.3d 7');">721, 7');">727');">7, italics added.) Thus, the substantiality of evidence “‘must take into account whatever in the record fairly detracts from its weight' [citation].” (Merrill Farms v. Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 17');">76, 182.) “‘Substantial evidence' is not established by just ‘any evidence' [citation] and is not shown by mere suspicions of unlawful motivation [citation]. The burden of proving unlawful conduct is on the ALRB [citation], and such conduct will not lightly be inferred [citation]. The standard of review is met, however, if there is relevant evidence in the record which a reasonable mind might accept in support of the findings. [Citation.]” (Vessey & Co. v. Agricultural Labor Relations Bd., supra, 210 Cal.App.3d at p. 642.)

         The language in section 1160.8 prescribing the substantial evidence standard of review based on “the record considered as a whole” was taken from the corresponding section of the National Labor Relations Act (29 U.S.C. § 15');">151 et seq. (NLRA); see 29 U.S.C. § 160(f)), and federal decisions relating to that standard are of precedential value in fleshing out its parameters. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 111 Cal.App.3d 258, 264.)[46] Relevant NLRA case law has held that in reviewing board decisions, the Courts of Appeal have “a responsibility for assuring that the Board keeps within reasonable grounds.…” (Id. at p. 266, citing Universal Camera Corp. v. Labor Bd. (1951) 7');">74');">340 U.S. 47');">74, 489-490.) Thus, a reviewing court “‘is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view.'” (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd., supra, 111 Cal.App.3d at p. 265, citing Universal Camera Corp. v. Labor Bd., supra, 340 U.S. at pp. 4');">p. 487');">7-488.)

         Our review is not limited to the question of whether substantial evidence supported the Board's decision. We may also consider whether an error of law was made and whether the decision was procedurally sound. (Phillip D. Bertelsen, Inc. v. Agricultural Labor Relations Bd. (1992) 2 Cal.App.4th 506');">2 Cal.App.4th 506, 519.) Board decisions that rest on “erroneous legal foundations” will be set aside. (Artesia Dairy v. Agricultural Labor Relations Bd. (2008) 168 Cal.App.4th 598');">168 Cal.App.4th 598, 605.) Such an error of law would include the Board's failure to apply the correct legal standard. (J.R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d 1');">26 Cal.3d 1, 38-39.) We review all such questions of law de novo.

         As to our review of remedies granted by the Board, we are guided by several core principles. In stating these principles, we do not yet address the issue of whether we may reach the election-related aspects of the Board's decision and order. That discussion will come in a later section of this opinion. Generally speaking, because the Board has broad discretion to fashion remedies to effectuate the purposes of the ALRA, courts take a cautious approach and will interfere only where the remedy is patently unreasonable under the statute (Nish Noroian Farms v. Agricultural Labor Relations Bd. (1984) 35 Cal.3d 7');">726, 7');">745), or where the remedy seeks to achieve ends other than those which can fairly be said to effectuate the policies of the ALRA. (Carian v. Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654, 67');">74; see Jasmine Vineyards, Inc. v. Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 968, 982.) Of course, because the Board's remedial power exists to effectuate the ALRA, it may not be exercised in a manner that defeats the ALRA's provisions or policies. (See, e.g., J.R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at pp. 29, 37');">7, 40 [the Board's blanket approach to application of make-whole remedy violated statutory language and eviscerated important policies of ALRA]; see also, Perry Farms, Inc. v. Agricultural Labor Relations Bd. (197');">78) 86 Cal.App.3d 448, 47');">73-47');">74 [“To ignore the disenfranchisement which may have occurred in this case in order to proceed with the imposition of sanctions upon an employer [was] unconscionable” due to its gross disregard of the ALRA public policy to allow workers the right to organize and vote].)[7');">7" name= "ftn.FN47');">7" id="ftn.FN47');">7">47');">7]

         Accordingly, even though the Board's discretion in fashioning an appropriate remedy or remedies to redress unfair labor practices is broad, it is not without boundaries. Among other things, such discretion must be exercised reasonably, not punitively. (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1987');">7) 192 Cal.App.3d 87');">74');">192 Cal.App.3d 87');">74, 908.) When an order of the Board is so severe in comparison to the conduct involved in the unfair labor practice that it is clearly punitive in character, the order will be annulled. (Ibid.; accord, Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (197');">79) 93 Cal.App.3d 922, 940; Laflin & Laflin v. Agricultural Labor Relations Bd. (1985) 166 Cal.App.3d 368');">166 Cal.App.3d 368, 380.)

         II. Review of Unfair Labor Practice Findings

         We now undertake our review of the unfair labor practice findings under the above standards. Gerawan argues that multiple findings of unfair labor practices were not supported by the record considered as a whole. Gerawan also characterizes the purported violations, to the extent they did occur, as relatively minor, sporadic and/or isolated, rather than pervasive or egregious in nature, particularly if the size and scope of the operations and the widely-dispersed workforce is taken into account. As to certain findings, Gerawan also argues that the challenged conduct did not constitute an unfair labor practice as a matter of law. We proceed to consider each of the particular unfair labor practice findings that are at issue.

         A. Worktime Signature Gathering and Supervisor Assistance of Signature Gathering

         Gerawan first challenges the sufficiency of the evidence to support the findings of worktime signature gathering and/or supervisor assistance regarding signature gathering in certain of the crews. We discuss each of the findings according to the particular crew in which the incident allegedly occurred, identifying the respective crew based on the name of its crew boss. The challenged findings are considered under three headings or categories: (i) the ALJ's findings of supervisor assistance, (ii) the ALJ's findings of worktime signature gathering without supervisor assistance, and (iii) the Board's own additional findings of worktime signature gathering beyond what the ALJ found.

         As previously indicated, we apply the substantial evidence test to the Board's factual determinations. Under that test, the Board's findings will be affirmed where they are supported by substantial evidence on the record considered as a whole. (§ 1160.8; Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd., supra, 24 Cal.3d at p. 3');">p. 349; Montebello Rose Co. v. Agricultural Labor Relations Bd., supra, 119 Cal.App.3d at pp. 20-21.) “[W]e do not reweigh the evidence. If there is a plausible basis for the Board's factual decisions, we are not concerned that contrary findings may seem to us equally reasonable, or even more so.” (Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d at pp. 7');">756-7');">757');">7.) Although we do not reweigh the evidence, we do consider the entire record, and affirm only if there is a reasonable basis for the Board's determination that unlawful conduct occurred. (See, Martori Brothers Distributors v. Agricultural Labor Relations Bd., supra, 29 Cal.3d at p. 7');">727');">7; Merrill Farms v. Agricultural Labor Relations Bd., supra, 113 Cal.App.3d at p. 182; Vessey & Co. v. Agricultural Labor Relations Bd., supra, 210 Cal.App.3d at p. 642.)

         1. Supervisor Assistance

         The ALJ and the Board[48] found that supervisor (i.e., crew boss) assistance with signature gathering took place on two occasions: Once in the crew of Jose Evangelista, and once in the crew of Leonel Nuñez.

         (a) Jose Evangelista

         The ALJ found that in mid-September 2013, [49] FLC crew boss Jose Evangelista received a signature sheet for the decertification petition from a woman who came by, and he signed it on behalf of 18 to 20 crew members and later told his crew what he did. The ALJ's findings were based entirely on the testimony of crew member Jesus Madrigal. Madrigal testified that while he and other workers were engaged in picking peaches and conversing (primarily about the benefits of having a union), Evangelista, who was about 14 feet away at the time, made a comment that he “had already signed.” According to Madrigal, Evangelista did not say anything else. Although Evangelista did not state to whom he had given his signature or what its purpose was, Madrigal assumed it was something to support the union. According to Madrigal, on the day before Madrigal's testimony at the ALJ hearing, he asked Evangelista about the matter and Evangelista told him that what had been signed was actually against the union.[50]

         In contrast, Evangelista testified that a blank paper was brought out to him by a woman indicating that signatures were needed. The crew was on a break at the time. Evangelista thought the paper merely related to safety training, so he just grabbed the paper and asked his crew to sign it. The woman left after handing him the piece of paper and did not stay or talk to the crew. After a majority of the crew signed, he gave the paper to a supervisor.

         The ALJ decided that Evangelista's testimony (i.e., that he thought the paper concerned safety training) was not credible because, according to the ALJ, no training had occurred on that day or the preceding day. However, on that point the ALJ clearly misread or misunderstood the testimony. Although it is true that Evangelista stated he did not have a safety class on that morning, he went on to say, in responding to the question of whether he had the class the day before, that he did not recall the exact date of the training, “but yes” it definitely had occurred, in which the workers were “told what we're-we are supposed to do, about how to handle the ladder, about symptoms.” Since there had been very recent training, the ALJ's rationale for discrediting Evangelista's testimony was unfounded. Moreover, Madrigal's testimony that Evangelista said he “already signed” something is so vague in what it may have referred to that we conclude it did not reasonably substantiate that Evangelista knew he signed the decertification petition. Mere suspicion or speculation of wrongdoing is inadequate. (Vessey & Co. v. Agricultural Labor Relations Bd., supra, 210 Cal.App.3d at p. 642.) For these reasons, we conclude that the finding by the ALJ of assistance by Evangelista was not supported by substantial evidence under the record as a whole.

         We note the ALJ also found that Evangelista's FLC crew stopped working at Gerawan as of the first week of October 2013, and thus, “none of the crew members would have voted in the November 5, 2013 decertification election unless in the interim they had obtained a position with a Gerawan direct hire crew.” This aspect of the ALJ's decision was not disputed.

         (b)Leonel Nuñez

         The ALJ found that crew boss Leonel Nuñez gathered his crew together during worktime at the request of one Virginia Chairez, and that Chairez proceeded to request signatures on the decertification petition. This finding was based on the testimony of a crew member by the name of Rulber Gonzalez. Other testimony by Gonzalez, however, was flatly rejected by the ALJ as not credible, including Gonzalez's assertion that Nuñez made verbal threats the company would go bankrupt if the union remained or that Nuñez expressed anger toward workers who did not sign the petition.[51]

         In his explanation of the pertinent events, Nuñez testified that he had already gathered his crew together for the purpose of giving updated instructions when Chairez arrived, asking for permission to speak to his crew. No attendance counter had yet arrived that day to count the workers. Nuñez assumed Chairez to be a counter and that she possibly had an announcement to read from the office, which counters sometimes did, so he gave her permission to speak as long as it was brief. Just before Chairez started talking to the crew, Nuñez walked away from the area to take a call from his supervisor about updated instructions for his crew. He did not hear what was being said at the meeting. He returned a few minutes later to see signatures being obtained by Chairez from several workers, but he did not know what they were for. He also noted that sometimes signatures were needed to confirm that safety training had occurred.

         Crew member Armando Flores testified that a woman had come to the crew in October 2013, and that she requested signatures during worktime relating to the union. Flores did not think that Nuñez was nearby at that time. Flores personally declined to sign.

         In evaluating credibility, the ALJ found implausible Nuñez's testimony that he (Nuñez) misunderstood the purpose of the visit from Chairez. The ALJ reasoned that if Nuñez had actually thought Chairez was there to read an official announcement from the office (i.e., at the direction of a manager), Nuñez would not have treated the matter as depending on his permission for her to speak and he would not have insisted that she keep it brief. The ALJ also noted that Nuñez's testimony describing how he introduced Chairez to the workers sounded as though listening to Chairez was optional.[2" name="ftn.FN52" id="ftn.FN52">52] If no mandatory message from the office was being read, then Nuñez's own testimony confirmed it would be highly irregular for a counter to be speaking to the assembled group for several minutes. Finally, the ALJ noted that Nuñez had never seen Chairez work as a counter or a checker in the tree fruit area.

         This is an instance where, if we were the trier of fact, we might have reached a different conclusion on this matter because Nuñez's explanation of events (i.e., that he thought Chairez was there as a “counter” on official business) was, despite any minor discrepancies, an account that seemed to make sense of what happened in a reasonable and believable way. Nevertheless, the inconsistencies and other circumstances cited by the ALJ in evaluating the credibility of Nuñez's testimony could reasonably lead one to a different conclusion. Therefore, we cannot say that the ALJ's credibility determination in this instance was inherently improbable or unreasonable. As our Supreme Court has stated, “[i]f there is a plausible basis for the Board's factual decisions, we are not concerned that contrary findings may seem to us equally reasonable, or even more so.” (Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d at pp. 7');">756-7');">757');">7.) Furthermore, “because the evaluation of witnesses' credibility is a matter particularly for the trier of fact, the Board's findings based on the credibility of witnesses will not be disturbed unless the testimony is ‘incredible or inherently improbable.' [Citations.]” (Harry Carian Sales v. Agricultural Labor Relations Bd., supra, 39 Cal.3d at p. 220.) We conclude that the ALJ's findings on this matter were supported by substantial evidence.

         2. Worktime Signature Gathering

         The ALJ found worktime signature gathering (without direct supervisor assistance) in five crews. When the worktime signature gathering that occurred in the crew of Leonel Nuñez is included (see above), there were a total of six incidents of worktime signature gathering found by the ALJ. Gerawan challenges each of these particular findings. Preliminarily, we note the Board's position on when worktime signature gathering may constitute unlawful assistance. “Merely permitting the circulation of the petition on company time or allowing employees to discuss, during working hours, decertifying a union” is not objectionable. (D'Arrigo, supra, 39 ALRB No. 4, pp. 12-13; see also, Nash De Camp Company (1999) 25 ALRB No. 7');">7; TNH Farms, Inc. (1984) 10 ALRB No. 37');">7.) “However, it is objectionable if the employer discriminates in favor of anti-union activity” (D'Arrigo, supra, 39 ALRB No. 4, p. 13), or if the circulation of the petition and signature gathering is with the obvious approbation or active involvement of supervisors. (Gallo, supra, 30 ALRB No. 2.) As will be seen, the theory affirmed by the Board in the present case was that Gerawan discriminated by allowing pro-decertification workers to gather signatures during worktime, while denying that same opportunity to pro-union workers.

         In reviewing the findings, we shall first consider the several individual findings of worktime signature gathering, and then we shall separately examine the question of whether there was substantial evidence to establish that such conduct was discriminatory.

         (a) Santos Efrain Rios

         The ALJ concluded that worktime signature gathering for the decertification petition had occurred in the crew of Santos Rios, but the ALJ made no factual finding to support that conclusion. Moreover, the record does not support the ALJ's conclusion. One crew member, Gustavo Vallejo, testified that he witnessed Santos Rios give papers to his brother, Oscar Rios, and asked Oscar to obtain signatures. Vallejo testified that he witnessed Oscar getting signatures on the papers from approximately 15');">15 workers. However, Vallejo's testimony did not establish the content or purpose of the papers. The ALJ found Vallejo was not credible to the extent that he (Vallejo) was suggesting that the papers given by Santos Rios to Oscar were decertification papers. The only other evidence in the record concerning the papers and signatures was Rios's testimony that he asked his brother to obtain signatures relating to workers picking up their paychecks.

         We conclude there was no substantial evidence in the record as a whole to support the ALJ's finding that worktime signature gathering on the decertification petition occurred in the crew of Santos Rios.

         (b)Martin Elizondo Cruz

         The ALJ found that worktime signature gathering occurred in the crew of Martin Elizondo Cruz. Two workers in that crew, Gustavo Vallejo and Jorge Aguirre, said they witnessed three individuals gathering decertification signatures on the outskirts of where Cruz was conducting a training class. Aguirre also remembered an additional occasion when two people came to Cruz's crew for signatures during worktime after the crew had moved from the trees to the grapes. Another worker, Maria Gonzales Espinoza, recalled that on one occasion, about 30 minutes after work began, a woman she did not recognize wearing clean (non-work) clothes, asked her to sign a paper to help get rid of the union.

         Cruz testified that the only time a worker came to gather signatures was when Rolando Padilla did so once during a lunch break, but the ALJ did not credit Cruz's testimony and noted certain discrepancies. The ALJ's credibility decision was not inherently improbable or unreasonable, but was within the ALJ's prerogative as finder of fact under all the circumstances. We conclude the ALJ's finding that worktime signature gathering took place in the crew of Martin Elizondo Cruz was supported by substantial evidence in the record.

         (c) Gloria Mendez

         The ALJ found that there was worktime signature gathering in the crew of Gloria Mendez, but also concluded that Mendez did not see it happen. Two members of Mendez's crew, Alma Delia Patiño and Severiano Salas, testified to an incident in which Erika Solano had sought signatures for the decertification petition during work hours. Their accounts were consistent and found to be credible by the ALJ. Salas noted that Mendez was not facing their direction when this occurred. Another crew member, Reina Ibanez, gave similar testimony about Solano soliciting signatures. Mendez denied that she ever saw or became aware of any signature gathering in her crew during worktime. The ALJ concluded that worktime signature gathering by Solano did occur, but Mendez was not aware of it. Substantial evidence supported the ALJ's factual findings.

         (d)Francisco Mendoza

         In finding worktime signature gathering in the crew of Francisco Mendoza, the ALJ credited the testimony of crew member Adela Castillo. Castillo testified that while she was engaged in work lifting peach buckets onto a trailer, a man and a woman approached and asked if she would like to sign a paper to stop the union from taking 3 percent. Castillo said “no” because she did not know what to do, and the woman responded “[t]hat was fine.” Castillo said that after the couple spoke to her, they moved on and talked to people in another row. Castillo did not know the location of her crew boss, Mendoza, when this incident occurred. We agree with the ALJ that Castillo's testimony supported the finding of this lone incident of worktime signature gathering, and also that there was no evidence it was seen or known by her crew boss, Mendoza.

         (d)Telesforo Mendoza

         The ALJ found worktime signature gathering in the crew of Telesforo Mendoza based on the testimony of one witness, Jaime Montano Dominguez (Montano). Although Montano technically reported to Mendoza, he was not working in the trees or grapes but was building structures or canopies under the direction of “Julio.” While at work building the structures, he was approached by a woman asking for a signature. Montano told her he would not sign because he was a union member. He identified the woman as Silvia Lopez.

         Gerawan argues that the ALJ should have discounted Montano's testimony since he was an active union supporter and no corroborating evidence was presented by the General Counsel. We disagree. Although the ALJ could have taken that approach, he also was entitled to conclude that Montano was telling the truth regardless of union sympathies. Mendoza himself did not testify, which Gerawan claims was due to unavailability at the time of the hearing. In any event, no other evidence was presented by either side. We conclude that Montano's testimony constituted substantial evidence of an isolated incident of worktime signature gathering in Telesforo Mendoza's crew.

         3. Additional Findings by Board of Worktime Signature Gathering

         As noted, the Board found two additional instances of worktime signature gathering, not found by the ALJ. The additional findings related to the FLC crew of Alejandro Vasquez and the direct hire crew of Reynaldo Villavicencio. Gerawan challenges both of these findings by the Board.

         (a)Alejandro Vasquez

         The Board relied on the testimony of Javier Blanco in concluding that there was worktime signature gathering in the FLC crew of Alejandro Vasquez. Blanco testified that on one occasion in July 2013, Silvia Lopez visited his crew to collect signatures during worktime. There were about 20 members of the crew present. The crew boss, Alejandro Vasquez, briefly mentioned to Blanco that a lady was coming to talk to them. Blanco was just returning from the bathroom when Vasquez, who was walking away from the crew, said this to Blanco. At that point, the crew boss left the area, while the members of the crew formed into a circle. There was no evidence the crew boss actually gathered the crew together, rather than simply informing them (while walking away from the area) that someone was coming to speak to them. Silvia Lopez arrived and spoke about supporting the company rather than the union, and she had a paper to sign. The time period involved was during the circulation of the first petition for decertification. This FLC crew (as with the other FLC crews) was finished for the season and was no longer working at Gerawan by the time of the second petition drive and the election.

         Gerawan argues that Blanco's testimony was obviously biased, inconsistent and unreliable. In this regard, Gerawan notes that Blanco appeared to have harbored animus against Gerawan because he was suspended from direct-hire employment at Gerawan based on his job performance. Blanco was under the impression that if he supported the union, the union might be able to get his direct-hire job back. Shortly before the hearing, Blanco received visits from UFW organizers at his home, where Blanco was urged to “support the union and not the company, ” and he agreed that he would do so. At the hearing, Blanco changed his testimony several times regarding what Silvia Lopez allegedly said during her visit to the crew. At first, Blanco testified that Lopez said that the signatures were to get rid of the union. Then Blanco claimed that Lopez refused to say anything about the purpose for the signatures and that he did not learn why she was gathering signatures until he heard about it later from other workers. Later, he shifted back to saying that Silvia Lopez had stated the reason for the signatures and that he had understood her. The ALJ interjected: “I'm confused why then, a couple questions ago, it sounded like you didn't know why she was there. Did I misunderstand something?” Blanco responded: “No. No.” Blanco's testimony also changed without explanation on other topics. When asked the date he started working in Vasquez's crew at Gerawan in 2013, he first represented it was in March of that year, then he said it was late July, and after that he claimed it was June.

         In finding worktime signature gathering in Vasquez's crew, the Board implicitly found that Blanco's account of Silvia Lopez's visit to that crew was credible. In reaching that conclusion, the Board did not address Blanco's potential bias or his inconsistent, vacillating testimony. Instead, the Board simply noted in its findings that the crew boss, Vasquez, did not testify and no other witnesses specifically contradicted Blanco's testimony. What the Board failed to acknowledge was that worktime signature gathering in Vasquez's crew was not alleged in the General Counsel's Amended Consolidated Complaint; nor was it referenced in the UFW's election objections.[53] The lack of allegations or charges regarding Vasquez's crew appears to account for the dearth of testimony regarding that crew and the ALJ's failure to make findings.

         The matter stands or falls on the question of whether the Board could reasonably credit Blanco's testimony. As noted, we will not disturb the Board's credibility findings unless the testimony is “‘incredible or inherently improbable.' [Citations.]” (Harry Carian Sales v. Agricultural Labor Relations Bd., supra, 39 Cal.3d at p. 220.) Although Blanco vacillated on a number of points and obviously had strong feelings in favor of the union, we are unable to conclude that all of his testimony was so unreliable as to be incredible or inherently improbable. Despite Blanco's many inconsistencies, the Board might have credited material portions of his testimony. Blanco was relatively clear and stable on at least the main part of what he was trying to get across: i.e., he recalled that Silvia Lopez visited the crew on a particular day, she was there during worktime, and she was seeking signatures. Although a close call, on balance we are unable to conclude from the record as a whole that Blanco's testimony was “incredible or inherently ...

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