Gerawan Farming, Inc. v. Agric. Labor Relations Bd.

bargaining representative.^[4] 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 §§ 1156.3 & 1156.7.)^[5] 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,^[6] 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^[7] 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

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^[11] 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

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^[13] 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.^[14]

$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^[17] 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.^[18] 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.^[19]

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.^[20] The training was primarily

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.).^[22] The Board granted that request in April of 2013, and the MMC process was underway in approximately May of 2013.^[23]

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.^[24] 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

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.^[32] 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."^[33] 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

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)^[35] 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.

29, 2014, and ended on March 12, 2015, consisting of 105 hearing days and the examination by respective counsel of approximately 130 witnesses. On September 17, 2015, 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.^[42]

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.

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, 2016, in Gerawan Farming, Inc., supra, 42 ALRB No. 1, the Board affirmed with minor changes^[44] 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

Jasmine Vineyards, Inc. v. Agricultural Labor Relations Bd . (1980) 113 Cal.App.3d 968 , 982, 170 Cal.Rptr. 510 .) 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, 40, 160 Cal.Rptr. 710 , 603 P.2d 1306 [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 . (1978) 86 Cal.App.3d 448 , 473-474, 150 Cal.Rptr. 495 ["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].)^[46]

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) 192 Cal.App.3d 874 , 908, 238 Cal.Rptr. 87 .) 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 . (1979) 93 Cal.App.3d 922 , 940, 156 Cal.Rptr. 152 ; Laflin & Laflin v. Agricultural Labor Relations Bd . (1985) 166 Cal.App.3d 368 , 380, 212 Cal.Rptr. 415 .)

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.

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. 349, 156 Cal.Rptr. 1 , 595 P.2d 579 ; Montebello Rose Co. v. Agricultural Labor Relations Bd., supra, 119 Cal.App.3d at pp. 20-21, 173 Cal.Rptr. 856 .) "[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. 756-757, 195 Cal.Rptr. 651 , 670 P.2d 305 .) 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. 727, 175 Cal.Rptr. 626 , 631 P.2d 60 ; Merrill Farms v. Agricultural Labor Relations Bd., supra, 113 Cal.App.3d at p. 182, 169 Cal.Rptr. 774 ; Vessey & Co. v. Agricultural Labor Relations Bd ., supra , 210 Cal.App.3d at p. 642, 259 Cal.Rptr. 77 .)

1. Supervisor Assistance

The ALJ and the Board^[47] 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,^[48] FLC crew boss Jose Evangelista received a signature sheet for the decertification petition from a

worktime. According to Aguirre, Cruz denied his request, saying he had no authorization to grant such permission and that Aguirre would have to get special permission from the office for that.^[55] Cruz testified that when Aguirre asked for permission to gather signatures, he told him that he could do it during breaks or at lunchtime, but not during work.

The ALJ inferred from the above evidence, together with the prior findings of worktime signature gathering by pro-decertification workers, that Gerawan had allowed pro-decertification workers to gather signatures during worktime but refused to allow pro-union workers to do the same thing. In challenging the ALJ's decision on this issue, Gerawan contends that, when viewed in

by the Board was issued by the Superior Court, and in response Erevia read the TRO to crew bosses and supervisors and explained what it meant and the importance of complying fully with its terms.^[57] Thus, the need for crew bosses' careful compliance had been strongly and recently reinforced, both by the Board's own training and by Gerawan's instruction. The obvious thrust of that training and instruction was to prevent or avoid

pro-decertification workers Silvia Lopez or Belen Solano.^[61] In further contrast, when Bernal sought a second day off work for a legitimate reason, he was denied and was told by his crew boss (who was also Silvia Lopez's crew boss) that the company does not want people missing that much work.

Looking to the record as a whole, it appears that greater flexibility to be absent from work was extended by Gerawan to Silvia Lopez and Belen Solano, both of whom were decertification proponents. Additionally, on this

30 work stoppage.^[65]

Silvia Lopez testified that the September 30, 2013 work stoppage and protest was not for the purpose of gathering signatures, but was 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 credit Silvia Lopez's testimony that the work stoppage was not to gather signatures. Other decertification proponents had testified that at least one of the reasons for the September 30 work stoppage was 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 and protest.

The Board found that although Gerawan did not know about the work stoppage in advance and did not give permission to its workers to walk off the job or gather signatures, nonetheless, Gerawan's failure to intervene in the unfolding events of that morning^[66] proved that Gerawan "acquiesced" in or gave "tacit approval" to what was happening. The Board reasoned that because it was improper for employees to block work entrances, and given that some employees may have wanted to work and/or arguably did not wish to be part of the protest, Gerawan should have immediately sent people over to rectify the situation. According to the Board, when Gerawan failed to do so, its inaction constituted culpable acquiescence allowing the decertification proponents to gather 800 to 1,000 signatures they would not otherwise have been able to obtain. Under this line of reasoning, the Board found Gerawan guilty of unlawfully assisting in the decertification movement by virtue of its failure to intervene in the September 30, 2013 work stoppage and protest.^[67] Gerawan challenges the Board's findings as unsupported by the record as a whole. Moreover, Gerawan asserts there were no facts creating a duty to intervene, and, quite to the contrary, it was both reasonable and permissible for it not to do so under all the circumstances. On the record before us, Gerawan is clearly right.

stages of the worker protest.^[68] To summarize, Erevia testified that on September 30, 2013, he received a call around 6:00 a.m. from the security manager who reported "that there was a congregation of people on Lincoln Avenue and Central ... and they [the security guards] did not know exactly what's going on[,]" but there were "a lot of rumors and hearsay." The security manager called Erevia back at about 6:30 a.m. and reported that traffic was getting worse in the area of the worker demonstration, law enforcement was being contacted, and it appeared that the protest was "a worker protest" and it "was not the union." Erevia interjected during his account of this conversation that the contacting of law enforcement was a common sense precaution because "[o]bviously, when something like that happens there's always a concern about safety." Erevia testified that he asked the security manager to keep him posted, and he then instructed his field auditors heading out to various ranch locations to be observant and let him know what they learned. He also sent Mike Gerawan an e-mail, with a copy to legal counsel, to let them know what was going on.^[69] Erevia continued his testimony: "After that, constant questions started coming in, people wanted to know more, so I was on the phone pretty much the first half of the day trying to figure out what was going [on] and trying to keep attorneys, and in this case Mike Gerawan, informed of what was going on." While it was evident to Erevia that "something big was happening" in the way of a worker protest on the west side involving a "large number of workers," the situation was "very chaotic" and unlike anything he had encountered before.

Erevia further testified that, based on conversations with the security manager and field auditors (between 6:00 a.m. and 7:30 a.m.), he came to understand that entrances to fields had been blocked. Erevia said he did not have any precise information, but based on the prior report that there was a

Newton Brothers Lumber Company , supra , unlike the present case, the employer was advised that the rights of a pro-union employee had been and still were being interfered with in the workplace by certain antiunion employees (i.e., through means of violence, forced exclusion from the workplace and threats) and the employer did nothing to prevent that situation's continuation. ( Id . at pp. 567-569.)^[73]

To reiterate, we conclude that the isolated testimony of Erevia, and the record as a whole, fail to support the Board's premise that Gerawan had knowledge giving rise to an affirmative duty to intervene in the protest.

connection with the workers' Sacramento trip, which donation by CFFA was purportedly wrongful^[77] under the ALRA as a violation of section 1155.4, subdivision (c) (§ 1155.4(c) ); and two, that CFFA's financial contribution and the workers' bus trip may be attributed to Gerawan under ALRA case law. Gerawan challenges both aspects of the Board's overall finding of an unfair labor practice.

Before proceeding, we provide some additional background facts in order to furnish adequate context to our discussion. Silvia Lopez was on a Fresno talk radio program hosted by Ray Appleton, at which time she made an appeal for financial help so that workers in the decertification movement could go to Sacramento to protest before the Board's main office there. The Regional Director had recently rejected the workers' first decertification petition, and Silvia Lopez and others believed that by going to Sacramento, to the site of the Board's headquarters, it would help get their message across that the workers really wanted a chance to vote. According to Silvia Lopez, the trip to Sacramento was to have their voices heard and to pressure the Board into allowing an election to go forward. However, there was one obstacle: the workers needed funds for transportation-hence the appeal for help on the radio broadcast. On October 1, 2013, Berry Bedwell (president of the CFFA) received a call from one of CFFA's members, Kent Stevens of Sunview Vineyards, who had heard the radio interview. Stevens asked Bedwell if the CFFA could help the workers with the expense of getting to Sacramento. Although Bedwell was in Washington, D.C. at that time, he was able to contact by telephone all the members of CFFA's executive committee^[78] and obtain authorization from them for CFFA to make a financial contribution to pay for buses and food to help the interested workers get to Sacramento.

but she did not take any action at that time. She testified that she did not learn until later that day that the buses took workers to Sacramento. Dan Gerawan testified he did not learn about what happened until later that morning, when he found out that approximately 400 of his workers went to Sacramento on buses.^[80] Bedwell testified that he did not tell Dan Gerawan in advance that the CFFA was paying for hundreds of his workers to go to Sacramento for a protest in the midst of Gerawan's busy harvest season. Dan Gerawan claimed he did not know in advance that CFFA paid for the buses, but he learned of that fact sometime during the week after the October 2 bus trip. Dan Gerawan stated that, based on advice of counsel, he did not call Bedwell to complain about the events of October 2, but he was upset that the company lost revenue that day and had to scramble to make sure it fulfilled all of its orders. The sudden loss of 400 workers had a big effect on the harvesting and packing schedule.

In its determination that Gerawan could be held responsible for CFFA's payment of the workers' transportation and food expenses on October 2, 2013, the Board found two facts to be particularly significant. One was the fact that Dan Gerawan and Bedwell had been in regular contact by e-mail or telephone regarding the events of the decertification movement, but they failed to e-mail one another about the October 2 bus trip and protest.

employer or association of agricultural employers^[83] to give money or other things of value to "[a]ny employee or group or committee of employees of such employer in excess of their normal compensation for the purpose of causing such employee or group or committee directly or indirectly to influence any other employees in the exercise of the right to organize and bargain collectively through representatives of their own choosing." The goal of the statute is "protecting against corruption and undue influence in the collective bargaining process." ( United Farm Workers of America v. Dutra Farms (2000) 83 Cal.App.4th 1146 , 1156, 100 Cal.Rptr.2d 251 ( Dutra Farms ).) The corresponding provision of the NLRA has consistently been construed by the

access" to government].)^[87] "The Supreme Court has stated that 'the rights to assemble peaceably and to petition for redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights.' " ( City of Long Beach v. Bozek (1982) 31 Cal.3d 527 , 532, 183 Cal.Rptr. 86 , 645 P.2d 137 , judg. vacated and cause remanded (1983) 459 U.S. 1095 , 103 S.Ct. 712 , 74 L.Ed.2d 943 , reiterated (1983) 33 Cal.3d 727 , 190 Cal.Rptr. 918 , 661 P.2d 1072 .)

The workers were able to travel to Sacramento and exercise these precious freedoms because of the financial assistance provided by a third party, CFFA. Of course, the mere fact that Gerawan's workers were assisted by the gifts of a third party in the exercise of their First Amendment freedoms does not by itself create an unfair labor practice. Indeed, in constitutional jurisprudence, it has been recognized that third-party support is often essential to effective public advocacy or petitioning for redress. (See, e.g., N.A.A.C.P. v. Button (1963) 371 U.S. 415 , 436, 83 S.Ct. 328 , 9 L.Ed.2d 405 [penalizing third party participation and support "could well freeze out of existence" essential petitioning activity].)

In summary, we conclude that the employees' October 2, 2013 bus trip and protest entailed the exercise of concerted activity under the ALRA, as well as the exercise of rights recognized under the First Amendment to peaceably assemble, protest and to petition the government for redress. On the record before us, Gerawan was not required to interfere with, repudiate or punish the employees for doing so, whether or not Gerawan may have learned or suspected that CFFA funded the transportation costs. We conclude that the

to indicate involvement with respect to CFFA's financial gift.^[89] Thus, the Board's finding of actual complicity by Gerawan in CFFA's financial donation went far beyond what the evidence reasonably showed and, in our review of the entire record, cannot be affirmed. (See George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd ., supra , 111 Cal.App.3d at p. 266, 168 Cal.Rptr. 537 [courts of appeal have a "responsibility for assuring that the Board keeps within reasonable grounds," citing Universal Camera Corp. v. Labor Bd., supra, 340 U.S. at pp. 489-490, 71 S.Ct. 456 ]; see also, Vessey & Co. v. Agricultural Labor Relations Bd ., supra , 210 Cal.App.3d at p. 642, 259 Cal.Rptr. 77 [burden of proving unlawful conduct is on the Board, such unlawful conduct will not be lightly inferred, and mere suspicions are insufficient].)

In summary, nothing in the record reasonably shows that Gerawan was in any way involved in or exerted influence over the series of events or decisions leading to CFFA's making of a gift to assist the interested workers regarding transportation costs. We conclude that the Board's finding that

Orbit Lightspeed Courier Systems (1997) 323 NLRB 380 , 393.) On the other hand, if there has been a past practice of soliciting employee grievances, the employer may continue to carry out that same practice during an organizational campaign without creating a rebuttable presumption of an implied promise to remedy the grievances. ( Carbonneau Industries (1977) 228 NLRB 597 , 598.) However, past practices may not be used to justify the solicitation of grievances during an organizational campaign if the employer significantly increases or intensifies its past method and scope of solicitation. ( Id. at p. 598.) In any event, regardless of the manner of proof (i.e., with or without a rebuttable presumption), the solicitation of grievances is not an unfair labor practice unless proven to be accompanied by an express or implied promise that the grievances will be remedied. ( N.L.R.B. v. K & K Gourmet Meats, Inc ., supra , 640 F.2d at p. 466.) As we have stressed, an employer's mere willingness to listen and consider employees' concerns is insufficient. ( Id . at p. 467.)^[91]

Gerawan had a practice or policy of implementing piece-rate increases as a reward to workers on past occasions where extended work hours were needed. We conclude that the theory of a business necessity or of an economic exigency necessitating an immediate unilateral rate increase was not clearly established; that is, the evidence was not of such a character that the Board was required to find for Gerawan on that issue.

Based on the foregoing, we conclude there was substantial evidence to support the Board's conclusion that the piece-rate increase prior to the election constituted an unfair labor practice. With certain qualifications noted below, we affirm the Board's determination of that issue.

In regard to the probable impact of this violation on the workers' freedom of choice, Gerawan contends that even if there was a violation, what occurred here was materially distinguishable from the usual or hallmark violation where an across-the-board pay increase is given prior to an election. We agree with Gerawan's contention. Here, we are dealing with a very brief (i.e., one day only), relatively modest (i.e., 25 cents per box) increase in the piece rate for a subset of workers (i.e., grape packers) under circumstances in which there was an apparent need to get a considerable volume of grapes packed with fewer workers on hand. Because of these unique circumstances, it was unreasonable and arbitrary for the Board to mechanistically (or per se ) presume that the workers were coerced or lost their freedom of choice due to the one-day piece-rate increase.^[95] Indeed, it was not merely possible, but arguably more likely than not, that the workers would have reasonably perceived the temporary increase to stem from the company's special need to complete the packing backlog with fewer workers.^[96] Therefore, the Board clearly erred when it applied an automatic presumption of the existence of coercion as a bare conclusion without supporting facts and analysis and

decision is not such a final order for purposes of judicial review. ( Nishikawa Farms, Inc. v. Mahony, supra, 66 Cal.App.3d at p. 787, 136 Cal.Rptr. 233 .) "[A] certification order under section 1156.3 of the ALRA is not a 'final order' of the board; therefore, it is not normally subject to judicial review except as it may be drawn in question by a petition for review of an order made under section 1160.3^[100] of the act restraining an unfair labor practice." ( Id . at p. 788, 136 Cal.Rptr. 233 .) Thus, in the absence of extraordinary circumstances, the only way an employer may obtain judicial review of the Board's order(s) in an election certification proceeding is to (1) refuse to bargain with the representative whose election it challenges; (2) be found guilty by the Board of an unfair labor practice because of such refusal to bargain; and (3) obtain review

that exist between the two types of proceedings (i.e., unfair labor practice proceedings and election certification proceedings), the present appeal illustrates that in a mixed or consolidated case the two types of proceedings may be exceedingly difficult to parse or segregate when reviewing a particular order. We believe that in such cases as this one, a reviewing court may undertake reasonable judicial construction to determine the nature of the order before it.

Here, not only were the unfair labor practice proceedings consolidated with the election objections, but the Board's election-related decisions in Gerawan Farming, Inc., supra, 42 ALRB No. 1 were specifically grounded upon, and constituted a remedy directed for, Gerawan's unfair labor practices. The Amended Consolidated Complaint filed by the General Counsel expressly sought, as specific relief for the asserted unfair labor practices described therein, the dismissal of the petition for decertification and destruction of the ballots.^[107] That relief was asserted in the prayer to be "just and proper to remedy the unfair labor practices alleged herein."^[108] The Board granted the essence of these requested remedies for unfair labor practices when it directed the dismissal of the petition for decertification and consequently set aside the election. In its analysis in 42 ALRB No. 1, the Board considered each of the purportedly unlawful practices found to have been committed by Gerawan, and on the basis of such practices, affirmed the ALJ's remedial decisions to both dismiss the decertification petition and set aside the election. Where the UFW raised parallel election objections, it generally did so based on the same categories of wrongdoing and the same events or conduct raised by the General Counsel as unfair labor practices.

Thus, although formally the case included proceedings under section 1156.3 (i.e., the UFW's election objections) alongside the unfair labor practice

is highly questionable. In fact, 42 ALRB No. 1 is reasonably susceptible to being construed as a single, unitary, final order in all of its parts.^[109] When this assessment of the character of the order is combined with the fact that the Board has deprived the employer of the adequacy of the technical refusal to bargain remedy by refusing to tally the ballots, we believe the proper balance to be struck is to construe the entirety of the Board's order in 42 ALRB No. 1, including the election remedies, as constituting "the final order" under section 1160.8, and thus within our power to judicially review. (See In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964 , 989, 138 Cal.Rptr.3d 44 [in interpreting an order or judgment, we may resolve uncertainty by avoiding a construction which will make it harsh, unjust or inequitable].) In other words, we construe the Board's decision and order in 42 ALRB No. 1 to be one final, indivisible order under section 1160.8, both because it is a reasonable construction and because that rendering is necessary to avoid the

and employer's chosen legal counsel together]; S & J Ranch, Inc ., supra , 18 ALRB No. 2 [employer's agents instigated, openly assisted and participated in circulation of petition]; Peter D. Solomon and Joseph R. Solomon, dba Cattle Valley Farms/Transco Land and Cattle Co. , supra , 9 ALRB No. 65 [instigation and direct assistance]; M. Caratan, Inc . (1983) 9 ALRB No. 33 [petition filed by agent of employer].)

More recently, beginning with Gallo, supra, 30 ALRB No. 2, the Board expanded the parameters of what would "taint" the petition enough to allow the Board to set aside an election. In that case, the Board held that if there was "significant" assistance by the employer in the signature gathering process, the Board could declare the petition itself void, and throw out the decertification election without applying the standard of review applicable to election challenges.^[113] ( Id . at pp. 16-17.) In Gallo , the Board expressly rejected an argument that the election challenge standard of review should be

Gallo , as were forcefully pointed out in the dissenting opinion in D'Arrigo . (See D'Arrigo , supra , 39 ALRB No. 4, p. 35 et seq. (con. & dis. opn. of Mason, Boardmember).)^[115] First, the Gallo approach appears to be premised on a faulty legal supposition that the petition is a jurisdictional pleading, the dismissal of which would somehow require the election to be set aside. That is simply not the case. The "showing of interest" requirement, which is what the petition's signature threshold represents (see §§ 1156.3 &

added.) As we have repeatedly emphasized, the ALRA strongly favors elections, it creates a presumption in favor of certification of elections, and to overturn an election under the ALRA based on purported misconduct there must be specific evidence not only that the misconduct occurred but that it tended to interfere with employee free choice to such an extent that it affected the results of the election. ( Mann Packing Company, Inc ., supra , 16 ALRB No. 15, pp. 4-5; Oceanview Produce Company, supra, 20 ALRB No. 16, p. 6; see also, J.R. Norton Co. v. Agricultural Labor Relations Bd ., supra , 26 Cal.3d at pp. 25-26, 160 Cal.Rptr. 710 , 603 P.2d 1306 [violation not sufficient ground to set aside election "in absence of proof that ... [it] was of such a character as to have had an intimidating impact on employees or in any other way affected the outcome of the election"].) In view of the importance of elections under the ALRA, we conclude the Board is not at liberty to disregard the rigorous ALRA standard for setting aside elections on the pretext that it is reevaluating workers' true sentiments in signing the petition-at least not in the absence of egregious or pervasive interference on the part of the employer (e.g., instigation or other conduct showing the employer was engineering the decertification process instead of the employees, as occurred in the pre- Gallo taint-on-the-petition cases).^[118]

As was pointed out by Boardmember Mason in his dissenting opinion in D'Arrigo , supra , 39 ALRB No. 4, pages 42-43, when the Board sets aside an election under the low-threshold Gallo standard (i.e., significant employer assistance creating a taint on the petition), it tends to undermine the fundamental principle of employee choice by unnecessarily disenfranchising employees: "This is because under the Gallo standard a decertification election will be set aside even where there is a distinct possibility that the assistance had no effect on the validity of the showing of interest, let alone any significant effect on free choice in the election itself. Such an approach thus runs the risk of penalizing the genuine supporters of

additional factor, the nature and extent of the alleged misconduct in light of the margin of victory"]; J.R. Norton Co. v. Agricultural Labor Relations Bd . , supra, 26 Cal.3d at p. 22, 160 Cal.Rptr. 710 , 603 P.2d 1306 [as confirmation that conduct by UFW near the balloting place did not potentially interfere with employees' free choice, the Supreme Court observed "[m]oreover, the election results were not close"]; Bud Antle, Inc ., supra, 3 ALRB No. 7, p. 3 [concluding based on review of the entire record and the facts established therein that the party challenging election failed to show that "particular events or a cumulation of events ... affected the outcome of this election in which a high turnout of voters chose a representative by a 600 vote margin."].) Accordingly, and since no impediment exists to completing the statutory election process by issuing a tally (see Cal. Code Regs., tit. 8, § 20360, subd. (c) [if ballots were initially impounded, "the election will not be deemed complete until a ballot count has been conducted ...."] ), we instruct the Board to open the ballots and issue a tally, so that all relevant factors will be in view when it reconsiders the election decision on remand. (See also Cal. Code Regs., tit. 8, §§ 20363, subd. (d) & 20365, subd. (c) [election objection proceedings are to include tally of ballots]; cf., Cal. Code Regs., tit. 8, § 20360, subd. (a) [as soon as possible after completion of balloting, a Board agent "shall count the ballots and shall prepare both a tally ...."].)^[120]

A secret ballot election under the ALRA is intended to embody and reflect the workers' fundamental right to choose concerning a question of representation. That right is at the heart of what the ALRA is designed to protect and promote. ( J.R. Norton Co. v. Agricultural Labor Relations Bd . , supra, 26 Cal.3d at p. 30, 160 Cal.Rptr. 710 , 603 P.2d 1306 [it is the "principal purpose" of the ALRA].) The sustainability of the election held by Gerawan's workers, which in this case will depend upon careful evaluation by the Board of whether Gerawan's misconduct

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, 1152, 1156-1156.7; see J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1 , 8, 34, 160 Cal.Rptr. 710 , 603 P.2d 1306 ); the other is the policy to prevent and remedy unfair labor practices committed by employers.^[1] (§§ 1160-1160.9.) Both of these

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.^[2]

SYNOPSIS OF CASE

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^[3] of her coworkers at Gerawan, seeking an election

General Counsel's)^[8] 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.^[9] Four distinct parties participated

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,^[10] 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 (§§ 1156.3, 1156.7), 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

back to the Board to reconsider its decision in light of the corrected findings and legal standard set forth in this opinion.^[12] 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.

FACTUAL AND PROCEDURAL BACKGROUND

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

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.^[15]

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 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."^[16] 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."

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.^[21] 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

Bauer informed them that the signature gathering should be done during the lunch break,^[25] 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.^[26]

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.^[27]

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.^[28] 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.^[29]

The Board Seeks Injunction in Superior Court and Conducts Remedial Training

On July 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.^[30] The Board's

1160.4^[31] 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

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.^[34]

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

Second Petition Filed and the November 5, 2013 Election

Silvia Lopez filed the second petition for decertification on October 25, 2013.^[36] 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.) 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,

(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) 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,^[37] 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.^[38] Additionally, the objection alleging disparate treatment would also be set for hearing, conditioned on the outcome of the General Counsel's pending investigation.^[39] 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

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.)^[40]

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.^[41] 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) 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

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.^[43] Additional employer misconduct found by the ALJ included granting a unilateral well-timed

the corresponding section of the National Labor Relations Act ( 29 U.S.C. § 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, 168 Cal.Rptr. 537 .)^[45] 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, 168 Cal.Rptr. 537 , citing Universal Camera Corp. v. Labor Bd . (1951) 340 U.S. 474 , 489-490, 71 S.Ct. 456 , 95 L.Ed. 456 .) 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, 168 Cal.Rptr. 537 , citing Universal Camera Corp. v. Labor Bd., supra, 340 U.S. at pp. 487-488, 71 S.Ct. 456 .)

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 , 519, 3 Cal.Rptr.2d 58 .) 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 , 605, 86 Cal.Rptr.3d 91 .) 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 , 38-39, 160 Cal.Rptr. 710 , 603 P.2d 1306 .) 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 726 , 745, 201 Cal.Rptr. 1 , 677 P.2d 1170 ), or

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.^[49]

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

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.^[50]

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

the workers sounded as though listening to Chairez was optional.^[51] 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. 756-757, 195 Cal.Rptr. 651 , 670 P.2d 305 .) 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, 216 Cal.Rptr. 688 , 703 P.2d 27 .) 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

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.^[52] The lack of allegations or

standard to set aside an election as the Board discussed in the D'Arrigo and Gallo cases. ( D'Arrigo Bros. of California [, supra ,] 39 ALRB No. 4, at pages 28-29; Gallo Vineyards, Inc .[, supra ,] 30 ALRB No. 2.)"^[53] The Board, while quibbling with

Passavant defense. Since that assessment would appear to be correct, we conclude that the Board did not err in concluding the defense was not applicable.

However, even though an affirmative defense may not have been shown, we agree with Gerawan that the ALJ and the Board should have considered Shawver's statements to the Superior Court giving his assessment of the nature and efficacy of the training, and describing the likely impact of such training on the workers' understanding of their rights. In that regard, we have granted the request by Gerawan for judicial notice of the court records regarding the injunctive proceedings in the Superior Court, which records were presented in the ALJ hearing but were not considered by the ALJ or the Board. Since those records were potentially relevant to the Board's evaluation of the issue of whether workers would likely have been coerced or intimidated, the Board should have considered them.^[54] As set

light of the entire factual context, the evidence was insufficient to establish preferential treatment. As explained below, we conclude that Gerawan is correct.

According to Jose Erevia, on August 26, 2013, he received an anonymous telephone call alerting him that the UFW was planning to have pro-UFW workers attempt to entrap 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." The wording of the announcement was clear that, regardless of who asked or whether they were pro-union or pro-decertification, the answer would be the same. Soon afterwards, consistent with the anonymous tip, there were multiple incidents in several crews where the crew bosses were approached by individual workers who requested permission to gather signatures for the union during worktime. These worker requests, and the crew bosses' responses to them, constituted the critical evidence relied on by the ALJ in finding disparate treatment. However, both the ALJ and the Board glossed over or sidestepped the evidence demonstrating the staged^[56] nature of the requests and the facially-neutral character of Gerawan's announcement in response. We, however, may not do so but are required to consider the whole record. ( Martori Brothers Distributors v. Agricultural Labor Relations Bd . , supra, 29 Cal.3d at p. 727, 175 Cal.Rptr. 626 , 631 P.2d 60 ; Merrill Farms v. Agricultural Labor Relations Bd., supra, 113 Cal.App.3d at pp. 181-182, 169 Cal.Rptr. 774 .)

Furthermore, as pointed out by Gerawan, the orchestrated requests made by pro-UFW workers occurred soon after the crew bosses had received training from Silas Shawver on behalf of the Board, which included instruction on the importance of not assisting signature gathering. At about the same time, the TRO sought

there was any substantial or solid evidentiary support for the latter theory.^[58]

Silvia Lopez and Belen Solano was based on those workers being pro-decertification.^[59] Furthermore, Gerawan points out that once it became clear that Silvia Lopez was gathering signatures from workers for the petition and discussing union issues with them, for Gerawan to have intervened by terminating her employment could itself be deemed a form of interference with concerted activity. As explained below, we agree with some of Gerawan's arguments on this issue, but nonetheless conclude that at least a technical violation was substantiated by the record.

To begin with, we agree with Gerawan that this case is not on all fours with Abatti Farms . In Abatti Farms , the Board concluded that the employer was guilty of pervasive interference and unlawful assistance with the decertification campaign based on a combination of multiple factors. One of those factors was that the petitioner

supported the Board's finding of assistance through preferential treatment with respect to allowing time off work.

Next, Gerawan maintains that by allowing Silvia Lopez and Belen Solano to take extensive time off, it was merely giving deference to and/or avoiding interference with concerted activity on the part of its workers. In support of this proposition, Gerawan points out that crew member Francisco Severiano testified that when he complained to the crew boss, Reynaldo Villavicencio, about Silvia Lopez's absences, Villavicencio responded that he could do nothing about that.^[60] According to Gerawan, even the different treatment received by Bernal could plausibly be explained under this theory-that is, Bernal only had personal reasons to be absent, while Silvia Lopez and Belen were engaged in concerted activity.

Although Gerawan's explanation is arguably a reasonable one, it is not the only plausible interpretation of the evidence. Further, there is an additional piece of the factual puzzle that goes against Gerawan's position. As the ALJ found, Gerawan denied a request from the UFW to allow three or four workers to attend a negotiating session. Later, with respect to subsequent negotiating sessions, Gerawan ultimately agreed to release the workers under conditions where their absences would only be for a couple of hours to attend afternoon negotiating sessions. It is apparent that Gerawan's solution was to allow the pro-UFW workers time off to participate in the negotiating sessions after adjustments to the timing of the negotiating sessions minimized the disruption to the workers' work schedules. Thus, an interest in minimizing the loss of worktime was shown by Gerawan with respect to the pro-UFW workers, but that same concern as employer was not applied toward

coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Similarly, section 1152 states: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities ...." Section 1153 states it is an unfair labor practice for an employer "(a) To interfere with, restrain, or coerce agricultural employees in the exercise of the rights guaranteed in Section 1152."

1. The September 30, 2013 Work Stoppage

On September 30, 2013, only a few days after the Regional Director of the Board rejected the first decertification petition, Silvia Lopez and other leaders in the pro-decertification campaign responded by carrying out a large work stoppage^[62] and protest, 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. Entrances to the fields were blocked by people, cars, colored tape and ladders.^[63] As the workers arrived early that morning and discovered what was happening, they made their way to the main protest location at Road 145 (145)^[64] and Central Avenue. The arriving workers were informed by protest organizers of the news that the Board had rejected their signatures and were told that the stoppage and protest was going to help make their voices heard. Silvia Lopez and other advocates of decertification spoke at the protest using a megaphone, while many other workers chanted that they wanted a vote or carried protest signs. During the protest at 145 and Central, several of the decertification proponents were busy gathering signatures. News reporters arrived at the scene and interviewed protest participants. Nearby the main protest, a small group of pro-UFW workers also gathered. At one point, an ALRB van, with ALRB staff inside, drove very slowly through the crowds of people at 145 and Central to observe what was happening. Estimates of the total number of people at the September 30 protest ranged from between 1,000 to over 2,000 of Gerawan's agricultural workers. The walkout caused a huge disruption to

the record. At about 10:45 a.m., Marco Luna telephoned Projkovska to have her cancel plant operations for that day. At noon, Projkovska drove home to complete some payroll computations, and when she passed by 145 and Central, "there was nobody there."

Based on the above summary of the pertinent record, we conclude that the Board's premise that Gerawan's managers had knowledge of facts creating a duty to immediately intervene in the workers' protest is simply not borne out by Erevia's testimony or by the record as a whole. The Board relied on Erevia's testimony, but at most that testimony (and the remainder of the record) consistently showed the following: A massive worker protest was underway that morning, and the situation was highly chaotic and fluid. After some initial confusion, it was learned that the union was not the instigator. Workers were arriving, but they were also walking away from the work entrances toward a larger protest. While there were initial reports of entrances being blocked, no precise details were known, and the crowds of workers themselves were a likely explanation for the obstruction. In any event, the workers were moving down toward the site of the protest, at 145 and Central.^[70]

of force implicit in the circumstances were not lost upon the design employees, and they reacted to the directions and ultimatums ... accordingly." ( Id . at p. 1507.) Since the employer in that case knew of these events over the entire 10-day period, and had remained passive, it is not surprising that the NLRB found a violation of the employer's duty "to maintain discipline in the plant and to provide his employees with the opportunity to work without interference from their coworkers." ( Id . at pp. 1506-1507.)^[71] Nothing of the sort occurred in the present case. There was no evidence of threatening conduct or coercive confrontations, and plainly nothing in that category of which Gerawan was aware.^[72] Rather, it appeared that a peaceful but massive worker protest and walkout was underway. By the time Gerawan had more than sketchy information about the blocked entrances, the workers were already engaged in their large-scale protest at 145 and Central, and several hours later, the protest was over. For these reasons, the present case is distinguishable factually from the Newport News Shipbuilding case.

Similarly, the case of K.B. Specialty Foods Co. (2003) 339 NLRB 740 represents a stark contrast to the present case. In that case, a group of anti-union employees confronted union representatives, yelled insults, hurled several rocks, made a threat to run over the union representatives, and set union flyers on fire. ( Id . at p. 748.) Other cases cited by the Board are of the same sort factually, and hence, distinguishable. (See, e.g., Newton Brothers Lumber Company (1953) 103 NLRB 564 , 567-569 ; Fred P. Weissman Company (1946) 69 NLRB 1002 .) For example, in

The Board also seized upon the failure by the crew bosses to intervene when each one individually arrived at their respective field entrance early that morning. The Board found the crew bosses' confusion, inaction and avoidance of the situation to be "surreal." In the Board's view, this purportedly "surreal" and hands-off response by the crew bosses in the field was further evidence that Gerawan was guilty of wrongdoing. However, the Board's assessment strangely failed to reckon with two prominent factual realities that were clearly present and shown by the record, and in the light of which the crew bosses' reactions were not "surreal" at all: (i) the crew bosses were confronted with a highly extraordinary and unexpected situation of a massive worker walkout and protest, and (ii) they had been taught not to intervene in concerted activity engaged in by workers. On the latter point, Gerawan manager Jose Erevia testified that the company would not expect the crew bosses to interfere with what clearly appeared to be concerted activity by the workers, emphasizing that crew bosses had been repeatedly instructed by Gerawan (and by the Board itself, through Silas Shawver) not to intrude into or interfere with workers engaging in concerted activity.^[74] Thus, on September 30, 2013, when the crew bosses encountered crowds of workers calling for or already engaging in a work stoppage and protest, with many such workers also gathering in front of and/or obstructing entrances, the crew bosses reacted in accordance with their training when they did not interfere but kept back or distanced themselves from the concerted activity.^[75]

The crew bosses' testimony, although at times less than clear in describing initial reactions to the work stoppage, was entirely consistent with the circumstances noted above. Most of the crew bosses testified that they left the area or distanced themselves from the workers while awaiting word from supervisors on what to do. Two stated they were somewhat fearful or concerned for their own safety. Other crew bosses were more explicit in recalling their training and/or expressing a concern to not interfere with concerted activity. For example,

because "we cannot get involved in things related to the union." Crew boss Emma Cortez testified that when she heard workers talking about a protest, she "didn't want to intervene."^[76] Crew boss Santos Rios said he decided to leave the area where people were protesting because, "what could I be doing there?" Another crew boss, Martin Elizondo Cruz, stated that although he could easily have removed the ribbon, he did not do so for fear of being "scolded," since he did not understand all that was going on with the workers and entrances or why the ribbon was there.

Based on the foregoing, the Board's conclusion that the crew bosses' reactions to the work stoppage were "surreal" or somehow revealed purported wrongdoing on Gerawan's part was not supported by substantial evidence in the record as a whole. At most, the crew bosses' deferential and hands-off response was-from an evidentiary standpoint-equivocal and inconclusive concerning the issues at hand. If anything, as the above summary of the larger record indicates, the crew bosses' reactions more closely and coherently aligned with the factual explanations offered by Gerawan-i.e., that the crew bosses were acting in accordance with their training to avoid concerted activity. In short, the crew bosses' nonintervention into the workers' protest that morning did not constitute substantial evidence of unlawful conduct on Gerawan's part.

Finally, in an ironic twist, the Board criticizes Gerawan for issuing a press release on the day of the walkout that expressed approval for the workers' fundamental right to choose. The September 30, 2013 press release provided the following statement by Dan Gerawan on behalf of the company: "It is unfortunate that our employees felt they needed to take such a drastic action to have their voices heard. We are still hopeful that the Ag Labor Board will protect the workers' right to choose. We believe that the right to choose is a fundamental right of all employees. So too is the right to express one's views in a peaceful and respectful manner." Remarkably, the Board concludes that this statement of worker rights and freedoms is evidence that Gerawan was actually trying to coerce its workers. We see no reasonable basis for the Board's position. As Gerawan aptly remarks, "[t]he Board fails to explain its Orwellian conclusion that championing workers' 'fundamental right to choose' constitutes coercion." Moreover, "an employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board." ( NLRB v. Gissel Packing Co ., supra , 395 U.S. at p. 617, 89 S.Ct. 1918 .) The only exception is where the communication contains a "threat of reprisal or force or promise of benefit." ( Id . at p. 618, 89 S.Ct. 1918 .) As a relevant ALRA provision puts it: "The

Bedwell called the talk radio host, Ray Appleton, to obtain contact information for attorney Joanna MacMillan,^[79] one of the attorneys who represented Silvia Lopez. On October 1, 2013, Bedwell told attorney MacMillan that CFFA would pay for the workers' transportation expenses, including food costs, up to a total of $20,000. Bedwell made his CFFA credit card available to attorney MacMillan so that the workers could charter buses to get to Sacramento the next day, which was October 2, 2013. Bedwell understood that multiple buses would be needed and at least hundreds of workers would likely be going. MacMillan used the credit card to charter the buses, and food was also purchased during the bus trip using the same credit card. In all, the CFFA paid expenditures totaling $13,348 in support of the bus trip to Sacramento.

As to the logistics, before sunrise on October 2, 2013, at about 5:15 or 5:30 a.m., multiple buses were parked outside one of the company offices on the west side. Hundreds of workers met there and boarded the buses. Office manager Projkovska was awakened by an early morning call alerting her to the presence of buses parked on the street in front of the west side office,

Considering that Bedwell and CFFA had facilitated the absence of 400 of Gerawan's workers from the fields during peak harvest, the ALJ and the Board thought this lack of communication was telling. The other fact of note was that office manager Projkovska testified that she had called several charter bus companies to inquire about availability of buses. The call was apparently made only a day or two prior to the October 2 bus trip and protest. Projkovska claimed it was a routine inquiry she regularly made at about that time of year, pursuant to Marco Luna's instructions, in case there was a need to move any remaining workers from the east side over to the west side during peak season.^[81] The ALJ and the Board believed that Projkovska's inquiry about buses showed that Gerawan knew about the impending bus trip and/or the donation of funds.^[82] From these and other circumstances, the Board concluded that Gerawan was fully complicit in the financial contribution made by CFFA.

(a) The Purported Violation of Section 1155.4

As noted, one part of the Board's finding of unlawful employer assistance was that CFFA's contribution to support the October 2, 2013 bus trip and protest violated ALRA section 1155.4(c), and further, that Gerawan was somehow complicit in that unlawful financial contribution.

We begin by examining the question of whether CFFA's donation to pay transportation and food expenses relating to the workers' October 2, 2013 bus trip to Sacramento constituted a violation of section 1155.4(c) of the ALRA. Section 1155.4(c) makes it "unlawful" for an agricultural

NLRB and federal courts in a manner to avoid loopholes that might defeat or weaken the statutory objective, and the same approach has been followed in construing section 1155.4. ( Dutra Farms , at p. 1155, 100 Cal.Rptr.2d 251 .)

Gerawan argues that section 1155.4(c) was inapplicable because CFFA's donation was not "for the purpose of" causing the recipients thereof to influence other employees regarding representation or bargaining issues. Rather, it was for the purpose of allowing a group of interested workers to protest before the Board in the state capitol, so that those workers could have their voices heard by the government agency with decisionmaking power over them. In other words, the bus trip subsidized by CFFA was not to influence other employees , but to speak to and influence the government through the employees' exercise of their First Amendment right to petition for redress and peaceably assemble and protest. Gerawan emphasizes that the purpose requirement in section 1155.4(c) may not be disregarded or treated as surplusage.^[84] Under the clear terms of subdivision (c) of the statute, only gifts that are "for the purpose of" causing the recipients thereof to influence "other employees" concerning representation or collective bargaining are deemed unlawful. According to Gerawan, since the gift under consideration here was not for that purpose, the statutory prohibition was inapplicable and CFFA did nothing wrong.

The Board disagrees, arguing that a broad construction of section 1155.4(c) is warranted to prevent corruption of the process through such financial contributions. The Board asserts that Dutra Farms , supra , 83 Cal.App.4th 1146 , 100 Cal.Rptr.2d 251 , supports its position. In that case, after the UFW announced a campaign to organize strawberry pickers into a union, a committee of anti-union employees was formed by employees who worked for two employers that grew strawberries. Those two employers provided financial assistance to the committee. One employer made monetary contributions and the other paid for latrines used at an employee-led march organized by the committee. The committee's purpose or agenda was solely to oppose the UFW, and it sought to further that cause through

evidence that appellants were unaware of the nature of the Committee, unaware that it opposed the UFW, or ignorant that the donations had been made. [¶ ] These facts satisfy the statutory 'for the purpose of' requirement. Section 1155.4(c) does not ... require evidence that the donations caused the recipient to engage in any particular conduct, or require evidence that the thing of value was used in a particular setting." ( Dutra Farms, at pp. 1159-1160, 100 Cal.Rptr.2d 251 .)^[85]

To summarize, the Board argues that CFFA's conduct was substantially the same as the two employers in Dutra Farms , supra , and urges that we reach the same result. Gerawan responds that the present case is clearly distinguishable because, here, there was evidence of a special or distinctive purpose for the gift that would bring it outside the scope of the statutory prohibition-namely, that the gift was to allow interested workers to go to Sacramento to seek redress, peaceably assemble and protest in order to influence the government , not to influence other employees.^[86] Thus, unlike the situation in Dutra Farms , where the committee's sole agenda was to influence other employees, here the workers were seeking in this particular instance to influence or persuade the government . Gerawan further points out that its position best accommodates workers' rights to engage in concerted activities and exercise their First Amendment freedoms. Finally, Gerawan notes that there was no testimony whatsoever that any employee believed that Gerawan had funded the bus trip.

The Board replies that even if a more particularized showing was required to establish the "for the purpose of" requirement of the statute, such purpose could reasonably be inferred here since decertification proponents would likely seek to influence other employees in all of their activities, including during this trip to Sacramento. In that regard, the Board notes that the events occurring in Sacramento on October 2, 2013 included a pro-decertification protest, and it assumes that worker signatures would likely have been gathered for the second petition during the course of the bus trip and protest. The Board also posits that news of what happened that day in Sacramento may have had an impact on other workers who learned about it.

Having framed the section 1155.4(c) issue and stated the parties' respective positions on it, we conclude that it is unnecessary for us to decide whether

Board erred in characterizing Gerawan's deference to its employees' concerted or expressive activities as an unfair labor practice.^[88]

Third, the evidence purportedly showing that Gerawan was "complicit" in the financial contribution provided by CFFA (for travel and food) was patently insufficient to give rise to such an inference. As noted, the primary evidence relied on by the Board were the facts that (i) Bedwell and Dan Gerawan did not communicate about the events of October 2, 2013, despite their otherwise regular communications about events relating to decertification, and (ii) one or two days before the October 2 bus trip, Gerawan's office manager, Projkovska, made an inquiry about the availability of buses. These circumstances, if viewed liberally and considered together with Silvia Lopez's talk radio statements, may allow an inference that Gerawan somehow learned, suspected or anticipated that some of its workers would soon be traveling to Sacramento by bus for a protest and that CFFA was potentially the source of the needed transportation assistance for the workers. However, there is no reasonable and non-speculative foundation in the record for concluding anything of substance beyond that; and certainly nothing

company was a nonunion company and would not attempt to continue operations under a union]; Colson Corporation. v. N.L.R.B. (8th Cir. 1965) 347 F.2d 128 , 136 [employees could have reasonably believed a group of "businessmen" who contacted them to dissuade them from joining were "still connected with or at least were agents of" the employer because they had previously operated the company].) No comparable material falsehood existed in the present case that would require Gerawan to speak up and disavow it.

For the reasons explained above, Vista Verde Farms is distinguishable and does not provide a sufficient legal basis for attributing legal responsibility to Gerawan for the donation made by CFFA, a distinct third party. (See, e.g., Superior Farming Co. v. Agricultural Labor Relations Bd . (1984) 151 Cal.App.3d 100 , 122-123, 198 Cal.Rptr. 608 [ Vista Verde Farms rule must not "be applied mechanically, without regard to circumstances, reasonableness, and fairness"].) There was no substantial evidence in the record to indicate that any workers were coerced or misled by CFFA's donation. Moreover, because of the important conjunction and interplay of free speech and concerted activities in this matter, we hold that Gerawan was not required to prevent, intervene in or repudiate the workers' bus trip and protest, and its failure to do so was not an unfair labor practice.^[90] Accordingly, the Board's finding that Gerawan committed an unfair labor practice in connection with the events surrounding the October 2, 2013 bus trip was not supported by substantial evidence.

D. Solicitation of Grievances and Direct Dealing

1. Solicitation of Grievances

The Board found that Gerawan was guilty of an unfair labor practice based on its purported solicitation of grievances. The finding was premised on a series of communications made by Gerawan to its employees after the UFW suddenly returned to the scene following a nearly two-decades-long absence. Upon returning, the UFW sought to bargain and soon afterwards, applied for the commencement of the MMC process to the Board. Gerawan sought to apprise its employees of these major developments. The question before us is whether substantial evidence shows that, in doing so, Gerawan's communications crossed the line by making an improper solicitation of grievances.

As summarized previously herein, Gerawan's communications to its employees were primarily through a series of flyers, mailers or paycheck inserts.

evidence in the record to support Gerawan's assertion that it was responding to questions actually received from its employees. It is also noteworthy that the workers were advised to contact the ALRB for more specific help or guidance beyond the basic information provided by Gerawan. Gerawan, for its part, would also have a legitimate free-speech right to explain to its employees what had happened and what the new developments might potentially mean, so that its employees would not only have the benefit of more adequate information but also a general understanding of their employer's perspective on it. (See NLRB v. Gissel Packing Co ., supra , 395 U.S. at p. 617, 89 S.Ct. 1918 [employer has free speech right to communicate its views on union to employees]; § 1155 [same]; Beverly Enterprises, Inc. v. N.L.R.B., supra, 139 F.3d at p. 144 [employer entitled to respond to factual inquiries of employees].)

Under these unique circumstances, then, the fact that Gerawan had not previously engaged in such extensive or frequent communications with its employees, or solicited employee questions or concerns, prior to the UFW's reappearance is not even remotely suspicious given that the UFW's sudden reappearance was itself highly out of the ordinary and an unprecedented development impacting both employer and employees. (See, e.g., Intertape Polymer Corp. v. NLRB (4th Cir. 2015) 801 F.3d 224 , 240 [not every instance of out-of-the-ordinary behavior by an employer can be deemed coercive, threatening or suspect in nature; some actions are "entirely ordinary" when considered in light of the special circumstances]; Edwin Frazee, Inc . (1978) 4 ALRB No. 94 [change from ordinary business patterns not suspicious or indicative of improper motive where justification evident from circumstances].) For this reason, the "no past practice" basis for applying a rebuttable negative inference (i.e., the presumption of an implied promise to remedy any grievances) was clearly overcome and rebutted. Lacking the effect of the presumption, the Board's case for unlawful solicitation collapses because there is nothing in the record supporting an implied promise to provide benefits or to remedy grievances. Moreover, to the extent that these particular communications also contained something of Gerawan's own view or perspective on the recent events or on the union, we reiterate that such expressions were protected free speech since they did not include any form of coercive expression such as a reprisal, threat, or a promise of a benefit if the union was gone. (See NLRB v. Gissel Packing Co ., supra , 395 U.S. at p. 617, 89 S.Ct. 1918 ; § 1155; Intertape Polymer Corp. v. NLRB, supra, 801 F.3d at p. 238 [" '[P]ermitting the fullest freedom of expression by each party nurtures a healthy and stable bargaining process.' [Citation.]"].)^[92]

Mike Gerawan testified that, at mid-morning on that date, he learned that "a significant number of packers" had walked off the job. He had no knowledge or expectation that any of those who had walked off would be returning that day. He testified that he was concerned whether the grapes picked that day would be able to be packed on that same day, because otherwise the quality of the grapes would be detrimentally affected. Because it appeared that a longer-than-normal day of packing would be required by the remaining grape packers to get the job done, Mike Gerawan ordered food be provided for a dinner meal (i.e., pizza and tacos) in the packing areas. Ordering food was not uncommon when the workers were asked to work unusually late. Additionally, "as a reward ... and encouragement" to those who chose to stay late and complete the packing, Mike Gerawan increased the piece rate per box for that day. As it turned out, the workers who had left that morning returned later in the day and resumed working. Thus, any returning worker who chose to resume working that day would have received the increased rate per box actually packed by him or her, and would also have been able to partake of the free pizza and tacos.^[93]

The ALJ substantially credited Mike Gerawan's testimony. The ALJ found: "Some of the workers left in the middle of the day on October 25, 2013, to participate in a protest timed to announce the filing of the second decertification petition. This may have resulted in the need for workers to stay later that evening to finish packing the grapes. There was credible testimony that the grapes need to be packed quickly to be marketable." The ALJ further found that "Mike Gerawan was credible in testifying that the piece-rate was sometimes changed due to the quality of the grapes."

Nonetheless, the ALJ found that the piece-rate increase created an unfair labor practice. Although Mike Gerawan's testimony was credited on a number of points, his explanation for the piece-rate increase was deemed insufficient to provide an adequate

company joy over the decertification petition filing." The Board affirmed the ALJ's unfair labor practice finding.

Gerawan argues that the Board erred because the presumption of an improper motive for granting the pre-election piece-rate increase was adequately rebutted, based on the testimony of Mike Gerawan credited by the ALJ. According to applicable law, an improper motive for the subject wage increase must be shown. "The motive of the employer is critical in determining whether the granting of a wage increase prior to an election is an unfair labor practice. An important indicator of that motive is whether there has been a change from the status quo. [Citation.] Moreover, the law is well established that there is a presumption of illegal motive adhering to wage increases granted prior to an election. [Citations.]" ( N.L.R.B. v. Anchorage Times Pub. Co . (9th Cir. 1981) 637 F.2d 1359 , 1367 ; see also, Nick J. Canata (1983) 9 ALRB No. 8, pp. 11-12 ["Any announcement by an employer of a new economic benefit during an election campaign is presumed improper and, to rebut that presumption, the employer must adequately explain the reason for granting the benefit"].)^[94]

Although the explanation offered by Mike Gerawan for the piece-rate increase appears reasonable, the Board was not required as a matter of law to conclude that it adequately justified the piece-rate increase. Other factors were present which, in combination with the proximity to the anticipated election, permitted an inference of improper motive. One such factor was that the increase did not appear to fit into the normative status quo as reflected by past practices, or at least there was an absence of specific facts to show that it did. (See, e.g., NLRB v. Anchorage Times Pub. Co ., supra , 637 F.2d at p. 1367 [change from status quo can be indicator of improper motive]; N.L.R.B. v. Styletek , Division of Pandel-Bradford, Inc . (1st Cir. 1975) 520 F.2d 275 , 281, fn. 5 [it is "perilous" for an employer to grant benefits before an election "unless the employer can support with very specific facts the reason for granting benefits just then," such as "a past history" of wage adjustments on a particular date or occasion]; cf., Jimmy Dean Meat Co. (1977) 227 NLRB 1012 , 1034 [demonstrated consistency of pay raise with past policy and practice showed it was not for improper purpose].) Here, Mike Gerawan testified that "from time to time" he would change the piece rate "depending on the quality of the grapes [or] the time of year," explaining that "[l]ater in the year we get sweating on the grapes and there's delays in packing until the grapes dry. So, it varies with conditions." He did not mention extended work hours or the need to encourage and

without a consideration of the entire record. (See, e.g., Peerless of America, Inc. v. N.L.R.B. (7th Cir. 1973) 484 F.2d 1108 , 1120 [where non-egregious violations involved, it was improper for the Board to make a conclusory assumption that otherwise resilient workers can be "cowed" by such "marginal indiscretions" into abandoning their voting intentions].)^[97] Although it appears highly questionable that this piece-rate increase could have resulted in significant coercion under the circumstances, we stop short of deciding the matter for the Board. Rather, as will be more fully presented in the dispositional section of this opinion, the issue of whether this violation, together with other unfair labor practices affirmed by us, reasonably interfered with the workers' freedom of choice in the election to such an extent that such misconduct was likely to have affected the results, will have to be considered by the Board on remand based upon the totality of facts and circumstances in the record.

In passing, we note that the Board's conclusory finding of coercion regarding this unfair labor practice suffered from

its approach to the question of whether to set aside the election, we must first address the Board's (and the UFW's) contention that we have no jurisdiction to consider such matters. At this point in our discussion, we explain why we believe it is proper for us to address the Board's election-related conclusions and remedies without requiring Gerawan to engage in a technical refusal to bargain.

Under the Board's decision in Gerawan Farming, Inc., supra, 42 ALRB No. 1, as we view it, the primary remedy (or remedies) imposed by the Board for Gerawan's pre-election unfair labor practices was the dismissal of the decertification petition and the setting aside of the election.^[98] The question before us is this: may such election-related remedies be reviewed by this court in the present context? The Board argues that we have no jurisdiction to consider its election determination because the only method for judicial review of such a decision is through the technical refusal to bargain procedure. Since Gerawan has not yet engaged in a technical refusal to bargain, allegedly we have no basis to review the Board's election-related decisionmaking at this time. Under the unique procedural posture of this case, we disagree with the Board.

A. Technical Refusal To Bargain

We begin by briefly summarizing the technical refusal to bargain process. Section 1160.8 of the ALRA provides for judicial review of a "final order" of the Board in unfair labor practice proceedings.^[99] However, an election certification

of the election and certification in the course of judicial review of the unfair labor practice decision. ( Perry Farms, Inc. v. Agricultural Labor Relations Bd. , supra , 86 Cal.App.3d at p. 470, 150 Cal.Rptr. 495 ; see J.R. Norton Co. v. Agricultural Labor Relations Bd ., supra , 26 Cal.3d 1 at p. 27, 160 Cal.Rptr. 710 , 603 P.2d 1306 ; Yamada Brothers v. Agricultural Labor Relations Bd . (1979) 99 Cal.App.3d 112 , 120, 159 Cal.Rptr. 905 ["board decisions in certification proceedings normally are not directly reviewable in the courts and only become reviewable when drawn into question in conjunction with an unfair labor practice proceeding"]; Agricultural Labor Relations Bd. v. Superior Court (1996) 48 Cal.App.4th 1489 , 1497-1498, 56 Cal.Rptr.2d 409 [orders in certification proceedings not directly reviewable, but may be judicially reviewed following a final order on an unfair labor practice complaint].) This indirect method for obtaining judicial review of an election certification decision is commonly referred to in the case law as a "technical refusal to bargain." ( Rivcom Corp. v. Agricultural Labor Relations Bd ., supra , 34 Cal.3d at p. 772, 195 Cal.Rptr. 651 , 670 P.2d 305 ; J.R. Norton Co. v. Agricultural Labor Relations Bd. , supra , 26 Cal.3d at pp. 27-28, 160 Cal.Rptr. 710 , 603 P.2d 1306 ; Artesia Dairy v. Agricultural Labor Relations Bd ., supra , 168 Cal.App.4th at p. 602, 86 Cal.Rptr.3d 91 .) Although the technical refusal to bargain process creates significant delay in testing board decisions regarding employee representation, Congress, in enacting the NLRA, intended that result ( Boire v. Greyhound Corp . (1964) 376 U.S. 473 , 477-478, 84 S.Ct. 894 , 11 L.Ed.2d 849 ), and the same rule is applicable under the ALRA. ( Agricultural Labor Relations Bd. v. Superior Court , supra , 48 Cal.App.4th at pp. 1497-1498, 56 Cal.Rptr.2d 409 .)^[101]

Nevertheless, "the general statutory insulation from direct judicial review of board decisions other than final orders in unfair labor practice proceedings is not impermeable. Under both federal and California law, courts may exercise their equitable powers to review board determinations

Belridge Farms v. Agricultural Labor Relations Bd . (1978) 21 Cal.3d 551 , 556-557, 147 Cal.Rptr. 165 , 580 P.2d 665 .)^[102]

B. Why Direct Review is Available Here

Here, we need not consider whether this case comes within an exception to the rule limiting review to final orders of the Board under section 1160.8 because, as explained below, we conclude that Gerawan Farming, Inc., supra, 42 ALRB No. 1 is such a final order, including the election-related remedies. For this reason, Gerawan was not required to engage in a technical refusal to bargain as a precondition to our judicial review of such remedies. Rather, in this unique case, review of the entire order was available under section 1160.8. We so conclude in light of the combination of the following material considerations: (i) the Board has foreclosed any adequate remedy via the technical refusal to bargain process by failing to count the ballots; (ii) the Board's decision and order in Gerawan Farming, Inc. , supra , 42 ALRB No. 1 may reasonably be construed by this court as one indivisible final order under section 1160.8 because the election-related remedies ordered by the Board therein were predicated upon and inextricably intertwined with the unfair labor practice holdings in the consolidated proceedings below; and (iii) the ultimate remedy granted by the Board in this case of setting aside a decertification election did not, under the circumstances, implicate the policy rationale for precluding direct review. We now proceed to discuss these reasons for our conclusion in greater detail.

First, by refusing to tally the ballots,^[103] the Board effectively deprived Gerawan of

Cadiz v. Agricultural Labor Relations Bd ., supra , 92 Cal.App.3d 365 , 155 Cal.Rptr. 213 . In that case, the Board had impounded the ballots in a decertification election and ultimately vacated the election after sustaining the UFW's objection that the petition for decertification was untimely and/or subject to a contract bar under the wording of section 1156.7, subdivision (c). The Court of Appeal disagreed with the Board's interpretation of that statute, concluding that the petition for decertification was timely and not barred. ( Cadiz v. Agricultural Labor Relations Bd ., supra , at pp. 371-376, 155 Cal.Rptr. 213 .) In a separate procedural argument in that case, the Board and the UFW insisted that the Board's order could not be judicially reviewed unless or until there was a technical refusal to bargain culminating in an unfair labor practice finding. The Court of Appeal rejected that argument, in part because the Board's failure to count the ballots rendered that potential remedy inadequate: "[ S ] ince the results of the election are unknown and cannot be known until the ballots are counted , the legal remedy is patently inadequate . To pursue the procedures under section 1160.8 would require that the employer refuse at its peril to bargain with the union at the conclusion of the one-year contract, an act which may or may not ultimately be an unfair labor practice, depending upon who wins the election, the results of which could remain uncertain indefinitely. This differs from the usual case where the ballots have been counted and the results of refusing to bargain are more clearly predictable. In this case if the employer won on the principal issue and the count went against decertification it would still be guilty of an unfair labor practice. It therefore introduces an element of blind uncertainty which in effect is equivalent to gambling on a throw of the dice. No litigant should be required to assume such a burden for lack of an expeditious remedy." ( Id . at p. 383, 155 Cal.Rptr. 213 , italics added.)^[104]

Here, rather than counting the ballots and issuing a tally, the Board has opted to leave the parties (and the public) completely in the dark regarding that information.^[105] As recognized in Cadiz , supra , the

tally has deprived Gerawan of an adequate remedy under the technical refusal to bargain process.^[106]

Second, the election-related remedies in this consolidated case were specifically premised upon and arose out of the unfair labor practice findings such that the election-related remedies may reasonably be construed as an integral part of the one final order under section 1160.8. This fact, and why it is important, requires some elaboration.

Section 1160.8 expressly provides for judicial review from "the final order of the board granting or denying in whole or in part the relief sought" in an unfair labor practice proceeding. (§ 1160.8.) This statutory language reflects that a final order of the Board would ordinarily encompass not only the unfair labor practice findings but also the relief granted or denied based upon those findings. (See, e.g., Harry Carian Sales v . Agricultural Labor Relations Bd . , supra, 39 Cal.3d at p. 229, fn. 13, 216 Cal.Rptr. 688 , 703 P.2d 27 [defining final order under this section as one that either dismisses an unfair labor practice complaint or "direct[s] a remedy" for an unfair labor practice].) Thus, it is not unusual for findings and remedies adopted by the Board in unfair labor practice proceedings to be reviewed together by the appellate court under section 1160.8, as aspects of the same final order. (See, e.g., George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd . , supra, 111 Cal.App.3d at pp. 262-264, 168 Cal.Rptr. 537 ; Laflin & Laflin v. Agricultural Labor Relations Bd . , supra, 166 Cal.App.3d at pp. 375-382, 212 Cal.Rptr. 415 .)

gross contradiction and inequity of requiring the employer to pursue an indirect review process (concerning the Board's election-related decisions) where the Board itself has rendered that process inadequate.^[110]

Third, although the two factors enumerated above were, in combination, dispositive of this issue, we note as an additional factor that the legislative rationale for postponing judicial review until there has been a technical refusal to bargain is not implicated here. The Board's election-related relief of dismissing the decertification petition and setting aside the decertification election did not result in any change to the long-standing representational status quo. Instead, the historically certified union (UFW) remained in place, exactly as before, with the same authority continuing unabated to bargain on behalf of the workers, file unfair labor practice charges based on the employer's alleged failure to recognize or negotiate with the union, and file MMC requests. Thus, permitting direct review in this case would not postpone an election, delay the union's representative status or recognition, or otherwise undermine the worker's choice of representative through delay or attrition. As a result, the main concerns behind the technical refusal to bargain rule are not even remotely at stake. (See Boire v. Greyhound Corp . , supra, 376 U.S. at pp. 478-479, 84 S.Ct. 894 ; Associated Gen. Contractors, Etc. v. N.L.R.B. (9th Cir. 1977) 564 F.2d 271 , 276-277.) Furthermore, in light of the fact that Gerawan Farming, Inc., supra, 42 ALRB No. 1 did not make any change in representation based on the results of an election, but left everything the same as it was before (by setting aside the decertification election), it defies common sense to insist that Gerawan first be ordered "to do something predicated upon the results of the election" (see

decertification petition, it could dispense with the need to weigh and consider the extent to which the employer's misconduct may have affected the workers' freedom of choice in the election. We hold the Board's approach was erroneously one-sided in this case. By focusing almost exclusively on punishing the employer, the Board failed to give due regard to one of the most important policy mandates under the ALRA-namely, the protection of workers' right to choose in representational matters by secret ballot election. (§§ 1140.2, 1152, 1156-1156.7; see J.R. Norton Co. v. Agricultural Labor Relations Bd. , supra , 26 Cal.3d at p. 34, 160 Cal.Rptr. 710 , 603 P.2d 1306 .) As was stated in Perry Farms, Inc. v. Agricultural Labor Relations Bd ., supra , 86 Cal.App.3d at page 459, 150 Cal.Rptr. 495 : "It is not the function of the board to impose punitive measures upon recalcitrant employers at the expense of the rights of the employees whom the ALRA was designed to protect." The Board's truncated analysis constituted legal error, as we endeavor to explain more fully in the discussion that follows.

A. Established Standard for Considering Whether to Set Aside Election Based on Misconduct

The Board's established standard for evaluating whether misconduct has affected free choice in an election has been articulated as follows: "It is well established that the party objecting to an election bears a heavy burden of demonstrating not only that improprieties occurred, but that they were sufficiently material to have impacted on the outcome of the election. [Citation.] The burden is not met merely by proving that misconduct did in fact occur, but rather by specific evidence demonstrating that it interfered with the employees' exercise of their free choice to such an extent that the conduct changed the results of the election." ( Oceanview Produce Company (1994) 20 ALRB No. 16, p. 6; see, Nightingale Oil Co. v. N.L.R.B. (1st Cir. 1990) 905 F.2d 528 , 531.) These rigorous requirements comport with the express language of the ALRA, which refers to "misconduct affecting the results of the election " as a basis for refusing to certify an election due to misconduct. (§ 1156.3, subd. (e)(2), italics added.)^[111]

Similarly, in Mann Packing Company, Inc . , supra, 16 ALRB No. 15, the Board described the established standard for election challenges as follows:

particular events or a cumulation of events which affected the outcome of this election in which a high turnout of voters chose a representative by a 600 vote margin."].)^[112]

B. Taint on the Petition

As previously discussed, in this case the Board did not meaningfully evaluate whether Gerawan's purported misconduct affected employee free choice in the election itself. Rather, the Board took the approach that Gerawan's actions created an invalidating taint on the petition for decertification, which purportedly warranted the dismissal of the petition and nullification of the election. In years past, the Board has reserved the taint-on-the-petition approach to egregious employer interference in the petitioning process, such as where the employer was its instigator or provided pervasive and substantial assistance to procuring signatures on the petition. (See, e.g., Abatti Farms, supra, 7 ALRB No. 36 [entire petition tainted by employer's broad-ranging affirmative assistance to decertification campaign that included payment of large bonuses to decertification proponents while granting them leaves of absence to facilitate circulation of petition, sponsoring holiday party where petition circulated in presence of supervisors, and affirmatively bringing petitioner

applied in deciding whether to set aside the election: "We find these cases [e.g., Oceanview Produce Company, supra, 20 ALRB No. 16] to be inapposite because they deal with misconduct in the context of election objections, not with whether an election petition was valid when filed, the issue before us." ( Gallo , supra , at p. 15.) Gallo was subsequently followed by the Board in the case of D'Arrigo, supra, 39 ALRB No. 4, pp. 27-29). In D'Arrigo , the Board found it appropriate (based on Gallo ) to set aside a decertification election where there was "significant employer involvement" in the solicitation of signatures, which had tainted the petition. ( D'Arrigo , supra , at pp. 27-29.)

In the present case, were Gallo a correct statement of the law, the Board could properly set aside the decertification election by Gerawan's workers on the theory of an invalidating taint on the petition, as long as the Board found there was at least "significant" employer assistance or involvement in the decertification petitioning process. Moreover, if Gallo is correct, the Board could do so without ever evaluating the impact of Gerawan's purported misconduct on the workers' free choice in the election itself to determine whether such misconduct would have made any difference in the result. In substance and in practical effect, that is precisely what the Board did in this case because the Board applied a taint on the petition approach and set aside the election based on misconduct that did not involve instigation or egregious wrongdoing, and the Board did so without evaluating the impact of the misconduct on the election.^[114] However, we are convinced that the approach articulated in Gallo is fatally inconsistent with the ALRA because it fails to accord sufficient value, weight and importance to the employees' fundamental right to choose via secret ballot election. Indeed, it virtually ignores that right. Before we turn our attention to the correct standard that should have been applied here, we shall first explain with greater specificity why we believe Gallo is legally flawed and is the wrong standard.

There are several legal deficiencies with the Board's approach adopted in

1156.7),^[116] is merely an administrative screening mechanism to assist the Board in determining whether there is a bona fide question of representation that would warrant the time and expense of conducting an election. ( Nishikawa Farms, Inc. v. Mahony, supra, 66 Cal.App.3d at p. 793, 136 Cal.Rptr. 233 .) Thus, the showing-of-interest requirement is not jurisdictional, not reviewable, does not create a right not to have an election when unmet (i.e., there is no statutory bar to directing an election even without such a showing), but is merely an administrative tool to permit the agency to devote its time and resources more efficiently to those cases where an election is reasonably warranted. ( Id . at pp. 792-793, 136 Cal.Rptr. 233 ; Thomas S. Castle Farms, Inc. v. Agricultural Labor Relations Bd . (1983) 140 Cal.App.3d 668 , 675, 189 Cal.Rptr. 687 [showing of interest not a jurisdictional prerequisite to an election].)

Despite the minimal legal significance of the showing of interest and despite the fact that it is the workers' only available avenue to seek an election, the Board in Gallo placed exacting requirements on it, requiring something akin to laboratory conditions-that is, if any employer interference occurred it must have been less than significant or else the employees' petition would be subsequently dismissed and the election thrown out. As the dissent in D'Arrigo aptly put it: "In Gallo , the Board held that in evaluating the effect of employer assistance on the validity of a decertification petition, 'significant' assistance would render the petition void, without regard to whether the number of directly affected employees was sufficient to negate the requisite showing of interest. Thus, a more stringent standard was applied to the sufficiency of the showing of interest, a non-reviewable administrative matter, than the outcome-determinative standard applied to conduct affecting free choice in the election itself. This is both unsupported by any authority and fundamentally illogical. All other types of employer misconduct potentially affecting free choice in a decertification election, including the most serious types such as threats or promises of benefits, remain subject to an outcome-determinative standard. The carving out of a stricter standard for conduct affecting a non-reviewable administrative matter simply makes no sense." ( D'Arrigo , supra , 39 ALRB No. 4, pp. 37-38, fn. omitted.) Not only does that not make sense, but it places an onerous burden on employees seeking to obtain a decertification election (who have no control over the employer's missteps) and improperly downplays the importance of secret ballot elections under the ALRA. As was rightly stated by the Board in one of its older cases, once an election has taken place the focus of review should be on the election itself, not

based on the premise that after an election, the best reflection of the interest and allegiance of the employees is the election tally." ( Jack or Marion Radovich (1976) 2 ALRB No. 12, p. 10.)

A second reason the Gallo approach is flawed is that it appears to adopt a presumption that knowledge of "significant" employer assistance will be widely disseminated throughout the employee workforce. (See Gallo , supra , 30 ALRB No. 2, pp. 22-24.) Although the precise nature and contours of this newfound presumption are unclear, to the extent the Board was (or still is) attempting to create a per se rule presuming dissemination whenever employer assistance is deemed to be significant, such a rule would clearly conflict with well-established and better-reasoned Board precedent that requires a reasonable factual basis to prove dissemination. (See, e.g., Ace Tomato Co., Inc . (1992) 18 ALRB No. 9, fn. 13; Ace Tomato, Co., Inc . (1994) 20 ALRB No. 7, pp. 11-13.) Furthermore, and contrary to the Board's analysis in Gallo , the Supreme Court case of Triple E Produce, supra, 35 Cal.3d 42 , 196 Cal.Rptr. 518 , 671 P.2d 1260 does not support Gallo's broad presumption. Triple E Produce involved direct threats made by union organizers during an election, the effect of which created an atmosphere of fear and coercion. Under such circumstances, it made sense to follow NLRB case precedent that reasonably inferred widespread dissemination in similar situations where the character of the coercive threats at the time of an election made dissemination highly likely. ( Triple E Produce , supra , 35 Cal.3d at pp. 51-52, 196 Cal.Rptr. 518 , 671 P.2d 1260 .) Thus, to the extent that Triple E Produce applied a presumption, it did so in an egregious case of threats where there was a reasonable factual basis upon which to expect that dissemination occurred and that the information would be interpreted in a manner to have a coercive effect. We find no legal support in Triple E Produce for a presumption of dissemination in any other circumstances. Instead, where dissemination is necessary for making a prima facie case that an election should be set aside, a reasonable factual basis for inferring dissemination must be shown by the record. (See Dish Network Corp . (2012) 358 NLRB 174 , 183 [proof, not presumption, of dissemination required to show impact on election]; accord, Ace Tomato, Co. Inc ., supra, 18 ALRB No. 9, fn. 13; Ace Tomato, Co. Inc ., supra, 20 ALRB No. 7, pp. 9-14.)^[117]

the Board's decision in this case because, as discussed above, we reject and decline to follow Gallo . Rather, the focus of the Board's analysis here should have been on the election itself , and the reasonable impact (if any) of the employer's misconduct on the employees' ability to freely choose in the election.

Therefore, and in accordance with the foregoing discussion, we hold that the Board applied the wrong standard in this case. Instead of the taint-on-the-petition approach, the Board should have evaluated the purported misconduct under the established outcome-determinative standard for considering whether to set aside the election, which standard would require the Board to focus its scrutiny on whether the misconduct tended to interfere with employee free choice to such an extent that it affected the results of the election.^[119]

Unfortunately, the Board was apparently so zealous to punish this employer, it lost sight of the importance of the election itself under the ALRA, and embraced a one-sided approach to the issues that unnecessarily disenfranchised the workers without any meaningful consideration of whether the employer's conduct reasonably impacted the worker's freedom of choice in the election. Under the fundamental statutory policies of the ALRA, that one-sided approach cannot be countenanced, a least not on the facts of this case. (See Perry Farms, Inc. v. Agricultural Labor Relations Bd., supra, 86 Cal.App.3d at p. 474, 150 Cal.Rptr. 495 ["To ignore the disenfranchisement which may have occurred in this case in order to proceed with the imposition of sanctions upon an employer is unconscionable"]; see also, J.R. Norton Co. v . Agricultural Labor Relations Bd . , supra, 26 Cal.3d at pp. 29, 37, 40, 160 Cal.Rptr. 710 , 603 P.2d 1306 [the Board's blanket approach to application of make-whole remedy violated statutory language and eviscerated important policies of ALRA].)