Wonderful Orchards v. Agricultural Labor Relations Board CA5

Filed 3/1/22 Wonderful Orchards v. Agricultural Labor Relations Board CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

WONDERFUL ORCHARDS LLC,

F081172

Petitioner,

(46 ALRB No. 2)

v.

AGRICULTURAL LABOR RELATIONS

BOARD,

OPINION

Respondent;

IMELDA VAZQUEZ-LOZANO,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for writ of review. Mary Miller Cracraft,

Administrative Law Judge.

Roll Law Group and Kristen E. Bass; Barsamian & Moody, Ronald H. Barsamian

and Patrick S. Moody for Petitioner.

Santiago Avila-Gomez, Todd M. Ratshin and Scott P. Inciardi for Respondent.

No appearance for Real Party in Interest.

-ooOoo-

In this writ proceeding, Wonderful Orchards (Wonderful) seeks review of a

decision and order of the Agricultural Labor Relations Board (ALRB or Board). The

Board found Wonderful had engaged in an unfair labor practice and ordered remedies for

that practice. We affirm the Board’s decision and order.

FACTUAL BACKGROUND

A. Wonderful and the Van Crew

Wonderful is an agricultural employer that grows pomegranates and nuts in the

San Joaquin Valley. The events at issue in this case occurred in December 2016 at

Wonderful in Kings County where pomegranate trees were being weeded by agricultural

workers.

On December 27 and 28, 2016, Wonderful hired eight workers, including charging

party Imelda Vazquez-Lozano, through a farm labor contractor, Family Ranch, to weed

pomegranate trees—an activity that involves cutting down weeds around the trees with

hoes—at its Kings County orchard. Vazquez-Lozano drove a van to transport herself and

the other seven workers (collectively, the van crew) to and from the orchard.

Family Ranch employee, Alicia Prudencio, was the foreperson supervising the van

crew at the orchard, as well as other workers engaged in weeding alongside the van crew.

Jacinto Alavez was Prudencio’s supervisor.

B. Members of the Van Crew Complained About Working Conditions;

Prudencio Told the Van Crew Workers That If They Did Not Want to Work,

They Could Leave

The van crew worked a full shift at the orchard on December 27, 2016. However,

on that day, Prudencio indicated that some of the van crew workers were not keeping up

with the requisite pace of work and asked Vazquez-Lozano to help them keep up.

The van crew reported for their second day of work on December 28, 2016. Early

in the shift, the pace of work again became an issue. Vazquez-Lozano and another

member of the van crew, Dominga Hernandez Ortuno (Hernandez), both testified at the

hearing (before an administrative law judge (ALJ)) held in this matter, that Prudencio

2.

repeatedly pressured the van crew to work faster. The respective testimony of Vazquez-

Lozano and Hernandez on this point was credited by the ALJ.

According to Vazquez-Lozano, the van crew included older workers who could

not keep the pace that Prudencio was demanding. Hernandez testified that her “back was

hurting a lot,” which was also preventing her from keeping up with the faster workers.

Vazquez-Lozano testified that at least one other worker was similarly experiencing lower

back pain. The other crews working alongside the van crew were composed of younger

workers who were able to work faster. 1

Hernandez was concerned about the pressure to work faster and told Vazquez-

Lozano that she could not go as fast as was expected. Hernandez testified that Vazquez-

Lozano raised the issue with Prudencio. Vazquez-Lozano testified she told Prudencio,

“ ‘Alicia, you can’t be rushing the people that much.’ ” Vazquez-Lozano brought various

concerns to Prudencio’s attention in this context, including the fact that Vazquez-Lozano

“had two people with [her] who [were] … older” and that some workers were

experiencing back pain. Hernandez testified that she also told Prudencio, after the latter

had sharpened Hernandez’s hoe, that, even with the sharpened hoe, it was not possible to

work as fast as Prudencio was demanding. 2 Prudencio did not let up on the pressure.

Eventually, about two hours into the shift, Prudencio halted the van crew’s work

and called a meeting with the crew. Brenda Torres, a safety and/or registration employee

for Family Ranch, Wonderful’s farm labor contractor, was also nearby at the time.

Prudencio repeated her demand that the van crew must work faster; she said her own

1 Both Vazquez-Lozano and Hernandez also noted that the hoes given to the van

crew were not sharp; although the hoes were sharpened after the workers raised the issue

with Prudencio, Vazquez-Lozano explained the edges could be expected to become dull

again as the day progressed and Hernandez complained to Prudencio that, even with a

sharpened hoe, she could not keep the pace Prudencio was demanding.

2 Hernandez initially indicated she had this discussion with Prudencio on the first

day of work but then clarified that she was referring to the “last day” of work, that is

December 28, 2016.

3.

supervisor was pressuring her to increase the pace of the work to make it more

economical for the company. Vazquez-Lozano, who was aware that older members of

her crew were unable to work faster and who had discussed the issue with at least one

crew member (Hernandez), again objected that Prudencio could not expect the same pace

from older workers as she could from younger ones. Prudencio stated that if the van

crew did not want to work, they should put down their hoes and leave. 3 At this point,

Vazquez-Lozano and the rest of the van crew began to leave. Prudencio did not say or do

anything to stop them.

C. The Van Crew Departed the Orchard Without Any Intervention By

Prudencio; On Their Way Out, Vazquez-Lozano Told the Crew Not to Sign

Any Timesheets Because They Were Fired

As the van crew made their way towards their van, an individual named Crystal or

Chris approached the van crew. Crystal/Chris asked the van crew to sign timesheets so

they could be paid for the hours they had worked. Vazquez-Lozano, however, told the

van crew not to sign anything. She testified, “I told everyone not to sign it because it

seemed unfair to me that [Prudencio] was kicking us out like that. And if we signed it,

it’s almost as if we were telling them that we were leaving voluntarily.” Hernandez

confirmed that Vazquez-Lozano “did say for us not to sign, that we had been fired and

we should leave.” The ALJ credited the respective testimony of Vazquez-Lozano and

Hernandez on this issue. Prudencio and Torres also testified, respectively, that each

heard Vazquez-Lozano tell the crew not to sign the time sheets (the implication of which

statement was that the crew was not leaving voluntarily). Nonetheless, Prudencio did not

intervene or otherwise address the van crew’s situation and departure.

3 Prudencio denied making this statement and contended that she had merely asked

if the crew “could, please, as a favor, cut [the weeds] down shorter,” whereupon

Vazquez-Lozano abruptly threw down her hoe and told the crew to leave with her. The

ALJ discredited Prudencio’s testimony as to the progression of events, as well as Torres’s

similar testimony.

4.

After the van crew had reached and boarded their van, Torres approached and

asked Vazquez-Lozano to wait and talk to her. Vazquez-Lozano initially declined to

speak to Torres. However, subsequently she got out of the van and spoke to Torres.

Vazquez-Lozano asked Torres for the telephone number for the Labor Commissioner or

the “farmworker union.” Torres responded she did not have the requested telephone

numbers; Torres did not address the van crew’s employment status. 4 The van crew

thereafter departed.

Vazquez-Lozano filed a charge with the ALRB the same day, alleging that she and

her coworkers were unlawfully terminated for complaining about working conditions.

D. Vazquez-Lozano Had a Conversation with Jacinto Alavez (Prudencio’s

Supervisor) the Following Day; Alavez Offered to Return the Crew to Work,

but the Crew Had Already Found Other Employment

The next day, December 29, 2016, Alavez spoke with Vazquez-Lozano on the

telephone. Alavez offered the van crew work starting the following day, under a different

foreperson. Vazquez-Lozano declined the offer, stating she and her crew had already

found new jobs, which offered higher pay. Alavez also asked Vazquez-Lozano why she

had left work at the Wonderful orchard. Vazquez-Lozano answered that Prudencio was

“rushing people and she’s harassing people” and that she was “very demanding.”

PROCEDURAL HISTORY

A. The Charge, the Pleadings, and the Hearing

Vazquez-Lozano filed the underlying unfair labor practice charge with the

ALRB’s Visalia regional office on December 28, 2016 – the same day that the van crew

left the Wonderful orchard – alleging that she and her coworkers were terminated after

complaining about working conditions. The ALRB’s General Counsel issued a

4 Torres’s testimony about this event differed from Vazquez-Lozano’s testimony;

the ALJ credited Vazquez-Lozano’s version of events. The ALJ also discredited Torres’s

testimony, which was not corroborated by Prudencio, that Prudencio told the van crew,

“ ‘No one’s being fired.’ ”

5.

complaint on December 26, 2018, alleging in relevant part that Wonderful violated Labor

Code section 1153, subdivision (a), by terminating the van crew in retaliation for

protected activity. Wonderful denied liability in an answer filed on January 24, 2019.

The parties attended a prehearing conference with the ALJ during which they reached

stipulations as to some of the facts relevant to the case. A one-day hearing was held on

June 4, 2019. The General Counsel and Wonderful filed post-hearing briefs on July 12,

2019.

B. The ALJ’s Decision

The ALJ issued her decision on September 12, 2019. The ALJ framed the

question before her as follows: “At issue in this proceeding is whether Charging Party

Imelda Vazquez-Lozano … and her seven ride-share coworkers … were unlawfully

discharged on December 28, 2016 because of their protected concerted activity, as the

General Counsel claims, or whether they voluntarily quit, as Wonderful Orchards, LLC

… claims.” (Fns. omitted.) The ALJ also noted: “All parties were afforded full

opportunity to present witnesses and exhibits and to examine and cross-examine

witnesses.” The ALJ further indicated that she made her findings of fact and conclusions

of law “[o]n the record, as a whole, and after thorough consideration of briefs filed by the

parties.”

With respect to conflicting testimony presented at the hearing concerning the

departure of the van crew, the ALJ credited the respective testimony of Vazquez-Lozano

and Hernandez and discredited that of Prudencio and Torres (see fn. 3, ante). The ALJ

found it “inexplicable” that the van crew would have departed, giving up most of a day’s

pay, if Prudencio had merely asked them “as a favor” to cut the weeds closer to the

ground. The ALJ also discredited Torres’s claim that Prudencio had stated that the van

crew was not being terminated, noting that Prudencio herself did not claim to have made

any such statement (see fn. 4, ante). The ALJ generally credited Vazquez-Lozano and

Hernandez, finding both witnesses to be “thoughtful and clear” and their testimony

6.

“consistent and plausible.” She observed that neither witness claimed that Prudencio

explicitly stated they were fired, although it would have been in their interest to advance

such a claim.

The ALJ found Prudencio had repeatedly exhorted the van crew to work faster and

the members of the crew, including Vazquez-Lozano and Hernandez, objected to this.

The ALJ found the complaints constituted protected activity and that, in response,

Prudencio told the van crew that “if [they] didn’t want to work [they] should just put

down [their] hoes and leave,” which statement would reasonably be viewed by an

employee as discharge of the entire van crew; the discharge was a “mass discharge”

because the van crew “rode together and had no way home except to leave with Vazquez-

Lozano.” The ALJ noted that, in light of the timing of these events, a causal connection

between the concerns raised about the required pace of work and the discharge of the van

crew “could not be clearer.”

The ALJ concluded that “by the mass discharge of the van crew, [Wonderful]

retaliated against the workers due to their protected concerted activity,” and thus violated

section 1153, subdivision (a) of the Agricultural Labor Relations Act (ALRA), which

prohibits unfair labor practices, including interference with or coercion of agricultural

employees with respect to exercise of various rights, including the right to engage in

concerted activity (see below).5 (See Lab. Code, §§ 1153, subd. (a), 1152.)

The ALJ recommended various remedies, including a cease and desist order;

rescinding of the discharges; backpay; and posting, reading, and mailing of notices.

C. Wonderful’s Exceptions to the ALJ’s Decision and Recommended Order, and

the Board’s Subsequent Decision and Order

Wonderful filed 19 exceptions to the ALJ’s decision/recommended order and a

supporting brief. Wonderful took exception to various factual findings and credibility

determinations made by the ALJ. Wonderful also excepted to the ALJ’s conclusions that

5 The ALRA is codified at Labor Code section 1140 et seq.

7.

the van crew was terminated and that there was a causal connection between the

protected activity and the discharge. Finally, Wonderful excepted to the noticing

remedies recommended by the ALJ.

The Board denied Wonderful’s exceptions and upheld the ALJ’s decision that

Wonderful had engaged in an unfair labor practice under the ALRA by retaliating against

or disciplining the van crew for protected concerted activity. The Board found that

Wonderful had presented no basis to overturn the ALJ’s credibility determinations. The

Board agreed with the ALJ that the van crew reasonably believed under the

circumstances that Prudencio was terminating them. Furthermore, the Board noted the

situation created by Prudencio’s “work or leave” statement was, at the very least,

ambiguous, and Wonderful did not meet its burden to clarify the situation. The Board

upheld the ALJ’s recommended remedy with some modifications.

DISCUSSION

Standard of Review

“When reviewing questions of fact, we uphold the Board’s findings if supported

by substantial evidence on the record considered as a whole. [Citations.] Under this

standard: ‘[W]e do not reweigh the evidence. If there is a plausible basis for the Board’s

factual decisions, we are not concerned that contrary findings may seem to us equally

reasonable, or even more so.’ [Citations.] ‘Furthermore, those findings and conclusions

that are within the Board’s realm of expertise are entitled to special deference. [Citation.]

And, because the evaluation of witnesses’ credibility is a matter particularly for the trier

of fact, the Board’s findings based on the credibility of witnesses will not be disturbed

unless the testimony is “incredible or inherently improbable.” ’ ” (Gerawan Farming,

Inc. v. Agricultural Labor Relations Bd. (2018) 23 Cal.App.5th 1129, 1162 (Gerawan);

see Lab. Code, § 1160.8 (subsequent undesignated statutory citations are to the Labor

Code).) “ ‘The standard of review is met … if there is relevant evidence in the record

8.

which a reasonable mind might accept in support of the findings.’ ” (Gerawan, supra, at

p. 1162.)

“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. [Citation.] Board decisions that rest

on ‘erroneous legal foundations’ will be set aside. [Citation.] Such an error of law would

include the Board’s failure to apply the correct legal standard. [Citation.] We review all

such questions of law de novo.” (Gerawan, supra, 23 Cal.App.5th at p. 1163.)

“However, the ALRB’s interpretation of its own regulations is entitled to

deference. [Citation.] Further, as the agency entrusted with the enforcement of the

[Agricultural Labor Relations Act] (ARLA) [citation], the ALRB’s interpretation of this

act ‘is to be accorded “great respect by the courts and will be followed if not clearly

erroneous.” ’ ” (Artesia Dairy v. Agricultural Labor Relations Bd. (2008) 168

Cal.App.4th 598, 605 (Artesia).)

“As to our review of remedies granted by the Board, we are guided by several core

principles …. 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 [citation],

or where the remedy seeks to achieve ends other than those which can fairly be said to

effectuate the policies of the ALRA.” (Gerawan, supra, 23 Cal.App.5th at pp. 1163-

1164.)

“Under section 1148, the ALRB must follow all applicable precedents of the

National Labor Relations Act (NLRA). Thus, when reviewing ALRB orders, [appellate

courts are] also guided by decisions under the NLRA.” 6 (Artesia, supra, 168 Cal.App.4th

at p. 605.)

6 The NLRA is codified at 29 U.S.C. § 151 et seq.

9.

I. The Board’s Conclusion that Vazquez-Lozano and the Van Crew Engaged in

Protected Concerted Activity

Wonderful argues the Board’s conclusion that Vazquez-Lozano and the van crew

engaged in protected concerted activity is both unsupported by substantial evidence and

legally erroneous.

Under section 1152, agricultural employees have the right to engage in “concerted

activities for the purpose of collective bargaining or other mutual aid or protection.” The

task of defining the scope of protected activity under the ALRA “ ‘is for the Board to

perform in the first instance as it considers the wide variety of cases that come before it’

[citation] … and, on an issue that implicates its expertise in labor relations, a reasonable

construction by the Board is entitled to considerable deference.” (NLRB v. City Disposal

Systems, Inc. (1984) 465 U.S. 822, 829; Stephens Media, LLC v. NLRB (D.C. Cir. 2012)

677 F.3d 1241, 1250 [“ ‘The Board’s determination that an employee has engaged in

protected concerted activity is entitled to considerable deference if it is reasonable.’ ”].)

Aside from union activity, agricultural employee activity is protected by section

1152 when it is both concerted and engaged in for the purpose of “ ‘mutual aid or

protection.’ ” (Fresh & Easy Neighborhood Market, Inc. (2014) 361 NLRB 151, 152-

153; Sandhu Brothers Poultry and Farming (2014) 40 ALRB No. 12, pp. 16-19.)

Activity is concerted if it is “engaged in with or on the authority of other employees, and

not solely by and on behalf of the employee himself.” (Meyers Industries, Inc. (1984)

268 NLRB 493, 497, revd. sub. nom. Prill v. NLRB (D.C. Cir. 1985) 755 F.2d 941, on

remand Meyers Industries, Inc. (1986) 281 NLRB 882, affd. sub. nom. Prill v. NLRB

(D.C. Cir. 1987) 835 F.2d 1481.) “The concept of ‘mutual aid or protection’ focuses on

the goal of concerted activity; chiefly, whether the employee or employees involved are

seeking to ‘improve terms and conditions of employment or otherwise improve their lot

as employees.’ ” (Fresh & Easy Neighborhood Market, Inc., supra, 361 NLRB at p.

153.)

10.

The Board’s counsel point out that, here, “Wonderful presented no argument

before the Board that the ALJ’s conclusion that members of the van crew engaged in

protected concerted activity was incorrect,” and contended “only that the ALJ erred by

finding that the van crew was terminated.” The Board’s counsel further note that, having

failed to “argue its protected activity theory before the Board,” Wonderful “may not raise

it for the first time before this court.” (Unnecessary capitalization omitted.) We agree

with the Board’s counsel that Wonderful has waived its challenges, on appeal, to the

Board’s finding that Vazquez-Lozano and the van crew engaged in protected concerted

activity with regard to complaints made to Prudencio about the pace of work required of

the van crew, on December 28, 2016.

A “[p]etitioner’s failure to present [an] issue to the board precludes judicial review

since [the] petitioner failed thereby to exhaust its administrative remedies.” (Butte View

Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 971.) Thus, a

party’s failure to argue an issue before the Board waives that issue and the party is barred

from raising it in a subsequent judicial review proceeding. (See, e.g., George Arakelian

Farms, Inc. v. Agricultural Labor Relations Bd. (1985) 40 Cal.3d 654, 661-662

(Arakelian) [“the requirement of exhaustion of administrative remedies is

jurisdictional”]; Nish Noroian Farms v. Agricultural Labor Relations Bd. (1984) 35

Cal.3d 726, 737; Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743,

756, fn. 6; see also NLRB v. Legacy Health Sys. (9th Cir. 2011) 662 F.3d 1124, 1126 [“In

the absence of ‘extraordinary circumstances,’ [the] court does not have jurisdiction to

hear arguments that were not urged before the Board.”]; Sever v. NLRB (9th Cir. 2000)

231 F.3d 1156, 1171 [employee waived argument by not asserting it in exceptions to the

ALJ’s decision]; NLRB v. Inter. Assn. of Bridge, Structural, Ornamental & Reinforced

Iron Workers Union, Local 378 (9th Cir. 1973) 473 F.2d 816, 817 (per curiam) [party

must object with specificity to preserve issue for judicial review]; Woelke & Romero

Framing, Inc. v. NLRB (1982) 456 U.S. 645, 665-666.)

11.

Here, Wonderful noted in its first exception that Vazquez-Lozano and Hernandez

“offered inconsistent testimony as to whether or not they voiced any concerns about pace

to Prudencio.” In addition, in its third exception, Wonderful objected to the ALJ’s

finding that Prudencio testified that the entire van crew objected to the faster pace.

However, as reflected in its brief supporting its exceptions, Wonderful did not argue that

the ALJ erred in concluding that Vazquez-Lozano had engaged in protected concerted

activity, but rather challenged the ALJ’s conclusion that the van crew workers were in

fact discharged.7

The Board’s decision and order expressly noted that Wonderful had failed to offer

“any argument or authority” to challenge the ALJ’s conclusion that Vazquez-Lozano and

the van crew had engaged in protected activity. Citing its prior decision in Tri-Fanucchi

Farms (2014) 40 ALRB No. 4, page 9, for the proposition that a party waives objection

where an exception is unsupported by argument or authority, the Board concluded that

Wonderful had waived any challenge to the ALJ’s conclusion in this regard. Having

reviewed the record on this point, we similarly conclude Wonderful did not adequately

present to the Board, a challenge to the ALJ’s conclusion that Vazquez-Lozano and the

van crew had engaged in protected, concerted activity in complaining to Prudencio about

pace of work required of the van crew. Wonderful has therefore waived, for purposes of

appeal, its various instant challenges to the Board’s adoption of the ALJ’s conclusion in

this regard.

Wonderful asserts that it would have been futile for it to “argue [this] issue to the

Board.” However, Wonderful’s reliance on a putative “futility” exception is unavailing

given the conclusory discussion in its briefs of any potential application of this exception

here. (See Arakelian, supra, 40 Cal.3d at pp. 662-663.)

7 Indeed, in objecting to the remedies recommended by the ALJ, Wonderful

appeared to concede that Vazquez-Lozano had engaged in protected concerted activity,

stating, “it is enough to say that if Vazquez-Lozano’s activity is protected, it is barely

protected.”

12.

II. The Board’s Conclusion that Wonderful Terminated the Van Crew

Wonderful argues the Board’s finding that the van crew was discharged is not

supported by substantial evidence and is also legally erroneous. We disagree.

A. Framework Within Which the Board Assesses Discharge Questions

As noted by the Board’s counsel, when the parties dispute whether an employee

was involuntarily discharged, the issue is necessarily fact driven. However, the legal

framework within which the Board assesses discharge questions is well established.

Under this framework, the occurrence of a discharge “ ‘does not depend on the use of

formal words of firing.’ ” (Ridgeway Trucking Co. (1979) 243 NLRB 1048; Smith

Packing, Inc. (2020) 46 ALRB No. 3, p. 8-9 [“It is not necessary for the employer to use

any ‘magic words’ or to state explicitly an employee is ‘fired,’ ‘terminated,’ or

‘discharged.’ ”].) Rather, a discharge occurs when “an employer’s conduct or words

would reasonably cause employees to believe that they were discharged.” (P&M

Vanderpoel Dairy (2014) 40 ALRB No. 8, p. 21; H&R Gunland Ranches, Inc. (2013) 39

ALRB No. 21, pp. 6-7, fn. 3; Ridgeway Trucking Co., supra, 243 NLRB 1048, 1048.)

The analysis focuses on the perspective of the employee, not the employer, and whether

the employee reasonably believed that a termination had occurred. (Dole Farming, Inc.

(1996) 22 ALRB No. 8, pp. 2-3, fn. 3; Pennypower Shopping News, Inc. (1980) 253

NLRB 85, enfd. sub. nom. Pennypower Shopping News, Inc. v. NLRB (10th Cir. 1984)

726 F.2d 626, 629.)

In instances involving ambiguity as to whether employees were fired or quit, to the

extent “the employer’s acts created a climate of ambiguity and confusion which

reasonably caused [employees] to believe that they had been discharged or, at the very

least, that their employment status was questionable,” the “burden of the results of that

ambiguity must fall on the employer.” (Dole Farming, Inc., supra, 22 ALRB No. 8, p. 2,

fn. 3; Pennypower Shopping News, Inc. v. NLRB, supra, 726 F.2d at p. 630 [“we accept

the Board’s view that since the company created the ambiguity which reasonably caused

13.

the employees to believe they were discharged, or at least to believe their employment

status was questionable … the burden of the ambiguity must fall on the company”].)

Thus, where an employer’s conduct created ambiguity that caused employees to

reasonably believe their employment status was in question or they had been terminated,

the employer has a duty to clarify the ambiguity; absent such clarification, the ambiguity

regarding employment status militates against the employer. (H&R Gunlund Ranches,

supra, 39 ALRB No. 21, p. 5, fn. 3 [“A discharge occurs if an employer’s conduct or

words would reasonably cause employees to believe that they were discharged and in

such circumstances it is incumbent upon the employer to clarify its intent.”]; P&M

Vanderpoel Dairy, supra, 40 ALRB No. 8., p. 30 [same].)

B. The Board’s Conclusion that Vazquez-Lozano and the Van Crew

Reasonably Believed They Had Been Terminated is Supported by

Substantial Evidence

The ultimate issue in the administrative proceeding, as the ALJ summed it up, was

whether Vazquez-Lozano and the van crew “were unlawfully discharged on December

28, 2016 because of their protected concerted activity as the General Counsel claims, or

whether they voluntarily quit, as Wonderful Orchards, LLC … claims.” (Fn. omitted.)

The Board, in agreement with the ALJ, found that Vazquez-Lozano and the van crew

reasonably believed they had been terminated when Prudencio told them that if they did

not want to work, they should put down their tools and leave. Wonderful contends the

latter finding is not supported by substantial evidence.

The ALJ discredited the testimony of Wonderful’s witnesses, Alicia Prudencio

and Brenda Torres, regarding the circumstances surrounding the van crew’s departure

from Wonderful’s orchard on the day in question. The ALJ noted: “Prudencio’s denial

that she told the van crew they should leave is contextually inexplicable. According to

Prudencio, the van crew left after she asked them, ‘as a favor,’ to cut the weeds shorter.

In fact, both Prudencio and Torres testified that after Prudencio instructed the van crew

and others to cut the weeds shorter, Vazquez-Lozano said, ‘Let’s go.’ Then the van crew

14.

threw down their tools and left.” The ALJ found: “It makes no sense that after driving to

a jobsite, the van crew would forego a full day’s pay after being asked to cut the weeds

shorter. Prudencio acknowledged that the van crew wanted to work more slowly. Her

testimony that the van crew left after being told to cut the weeds shorter ‘as a favor’ is

discredited as implausible.”

The ALJ credited the testimony of Vazquez-Lozano and Hernandez about

Prudencio’s demands for faster work, the workers’ distress at the required pace, and

Hernandez and Vazquez-Lozano’s objections to these demands. The ALJ found that

Prudencio eventually called a meeting at which she admonished the van crew to work

faster, whereupon Vazquez-Lozano again objected to the pace-related demands. The

ALJ found that Prudencio then “told the van crew if they did not want to work, they

should put down their tools and leave.” The ALJ concluded that such words “would

reasonably be viewed by an employee as discharge of the van crew.”

The Board adopted the ALJ’s findings. The Board noted that the pace of work

was an issue throughout the time the van crew worked on weeding the pomegranate trees

on December 28, 2016. The Board also noted: “Approximately two hours into the

workday, Prudencio stopped work and called an impromptu meeting of the van crew.

[Torres,] a Family Ranch safety employee, was also nearby. Prudencio complained again

that they needed to work faster. Vazquez-Lozano again objected on behalf of the crew,

telling Prudencio that she could not expect the same pace of work from older workers as

she did from younger ones. Prudencio then stated that if they did not want to work, they

should put down their tools and leave. At this, Vazquez-Lozano and the rest of the van

crew began to leave. Prudencio did not take any action to prevent this.” (Fn. omitted.)

The Board further noted: “We find no basis to disturb the ALJ’s decision to credit the

testimony of Vazquez-Lozano and Hernandez concerning [Prudencio’s work or leave]

statement over the account given by [Wonderful’s] witnesses that the van crew abruptly

left after Prudencio politely asked them to weed closer to the ground.” Finally, the Board

15.

noted: “As the crew was leaving, an individual named ‘Crystal’ or ‘Chris’ … approached

the crew in order to get them to sign their timesheets. Vazquez-Lozano told the crew not

to sign anything because it was unfair that Prudencio was ‘kicking us out like that …

[a]nd if we signed it, it’s almost as if we were telling them that we were leaving

voluntarily.’ The record supports the conclusion that this statement was made and heard

by both Prudencio and Torres.”

The Board concluded: “We agree with the ALJ’s conclusion that a termination

occurred. We note that there was no testimony that anyone on the crew refused to work

or threatened to refuse to work. Vazquez-Lozano had merely objected that the crew

could not physically maintain the increased pace demanded by Prudencio. It was

Prudencio who halted the work and, in response to the continued objections to her

exhortations to work faster, stated that if the crew did not want to work, they should

leave. Given that it had already been explained that, due to the presence of the older

workers, the faster pace could not be achieved, a reasonable employee would construe

Prudencio’s statement as a termination.”

We conclude the Board’s relevant factual findings and conclusion that a

termination occurred are supported by substantial evidence in the record. We reject

Wonderful’s argument that the Board’s finding that Prudencio made the above-mentioned

work or leave statement is not supported by substantial evidence. Both Vazquez-Lozano

and Hernandez testified that this statement was made and the ALJ credited their

testimony. Wonderful argues their respective testimony should have been discarded

because Vazquez-Lozano and Hernandez were not consistent in recalling Prudencio’s

precise words. However, their respective accounts of the “work or leave” statement were

substantially consistent. Vazquez-Lozano testified Prudencio stated words to the effect,

“if we didn’t want to work, that we should just leave,” while Hernandez testified,

“[Prudencio] said if we didn’t want to work, that we should just leave, that we should –

should not be there.” Vazquez-Lozano testified that Prudencio additionally said,

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“ ‘Okay, just drop the hoes and you can leave.’ ” In other words, Vazquez-Lozano

testified Prudencio initially made the work or leave statement, then followed it up with a

more explicit directive to leave. 8 Thus, Vazquez-Lozano’s testimony was not

inconsistent with Hernandez’s testimony, nor was it internally inconsistent.

Wonderful also argues that its witnesses’ denials that the “work or leave”

statement was made should have been credited. However, the Board properly upheld the

ALJ’s assessment that the testimony of Wonderful’s witnesses on this point was not

credible, noting the implausibility of Prudencio’s account that a very polite request to

“please, as a favor, cut [the weeds] down shorter” prompted the van crew to abruptly

abandon their work and forego most of a day’s pay. Furthermore, Prudencio’s claim that

the height of the weeds, rather than the pace of the work, was the sticking point, was

undercut by her own testimony. For example, Prudencio testified that she pulled workers

aside on the second day of work to speak with “the ones that were farthest behind of

everybody.” She also complained, with respect to the events of the second day, that the

van crew was “already slower than everybody else and they wanted to work even slower

than that.” We see no basis to disturb the ALJ’s credibility determinations adopted by the

Board.

Wonderful further argues that since Vazquez-Lozano was aware Prudencio did not

have the authority to unilaterally terminate employees, she could not reasonably have

believed that Prudencio’s “work or leave” statement amounted to a termination. We are

not persuaded.

The Board found that the van crew never refused to work, rather it was Prudencio

who stopped the work; the van crew was simply objecting to working conditions that they

viewed as unreasonable. The Board concluded that, under these circumstances,

8 The Board found it unnecessary to determine whether the second statement was

made because it concluded the van crew would reasonably have believed, on the basis of

the first statement alone, that they had been terminated.

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Prudencio’s response to the effect that the van crew could leave if they did not want to

work was reasonably understood by the workers as a termination. The Board noted that

its conclusion in this regard was consistent with both ALRB and NLRB precedents

finding terminations in similar situations involving “work or leave” ultimatums. (See,

e.g., Ridgeway Trucking Co., supra, 243 NLRB 1048, 1049 [truckers reasonably believed

they had been terminated when employer told them to get in their trucks or leave the

premises]; Teresa Coal Co., Inc. (1981) 259 NLRB 317, 318-319 [finding termination

where protesting employees were told to work or go home]; P&M Vanderpoel Dairy,

supra, 40 ALRB No. 8, pp. 4-5, 21 [finding termination where employees demanding

wage increase were told “if you don’t want to work you can go”].)9

Here, Vazquez-Lozano responded affirmatively when asked, on cross-

examination, whether she knew that, as a general matter, Prudencio did “not have the

ability to fire people at Wonderful Orchards.” However, Prudencio testified that she had

the authority to recommend to her supervisor that particular employees be terminated. In

this context, it is significant that Prudencio told the van crew that she was in

communication with her supervisor, and he was unhappy with the slow pace of work and

had directed her to increase it. Thus, when Prudencio told the van crew that if they did

9 The Board’s decision was also consistent with ALRB and NLRB precedents

establishing that employees may not be required to abandon their protected activity as a

condition of remaining employed. (Smith Packing, Inc., supra, 46 ALRB No. 3, pp. 9-

10; Datwyler Rubber and Plastics, Inc. (2007) 350 NLRB 669, 676 [employer violated

NLRA by discharging employee who complained on behalf of others about mandatory

Sunday work]; Kolkka Tables & Finnish American Saunas (2001) 335 NLRB 844, 847

[“it was reasonable for the 15 employees who chose not to abandon their concerted

protest to believe that their choice meant they were discharged for engaging in protected

concerted activity, i.e., for continuing their concerted protest and failing to ‘get back to

work or go home’ ”].) The Board could properly find, as it did, that the van crew had not

refused to work, and that the implication of Prudencio’s work or leave ultimatum, from

the workers’ perspective, was that should the crew continue to protest the required pace

of work, they would be deemed to not want to work and would be required to leave. In

other words, Prudencio’s ultimatum conveyed the message that the van crew could either

drop their complaints about the required pace of work or leave the worksite.

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not want to work as required they could leave, the crew could reasonably believe that

Prudencio was authorized by her supervisor to enforce the pace requirements on pain of

termination. Furthermore, as the Board noted, Torres, whom Vazquez-Lozano regarded

as a supervisory figure, was present for the entire incident and did not countermand

Prudencio’s “work or leave” statement, thereby further indicating the termination was

authorized by management.

C. The Board’s Conclusions That It Was Incumbent On Wonderful To

Clarify Any Ambiguity Concerning the Van Crew’s Employment

Status and That Wonderful Failed To Do So, Are Supported By

Substantial Evidence and Are Not Legally Erroneous

As discussed above, the Board concluded that, under the applicable circumstances,

the van crew reasonably construed Prudencio’s “work or leave” statement as a discharge.

The Board further noted, in this context: “[Wonderful argues] that the ALJ failed to

consider its efforts to clarify that the van crew was not terminated. However, Prudencio’s

direction to work or leave was, at the very least, ambiguous and we find that subsequent

events, far from clarifying that the van crew was not terminated, would have confirmed

the initial impression created by Prudencio that a termination had occurred.” The Board

explained that both Prudencio and Torres heard Vazquez-Lozano tell the van crew not to

sign any timesheets (Prudencio and Torres testified as much); although Vazquez-

Lozano’s statement to this effect indicated the van crew was not leaving voluntarily,

neither Prudencio, nor Torres, told the van crew that they were not terminated.

Wonderful argues that the Board improperly placed the burden of clarifying any

ambiguity as to the van crew’s employment status on Wonderful, on the basis that

Wonderful created an atmosphere of confusion about the crew’s status. According to

Wonderful, it was Vazquez-Lozano who created the confusion by unilaterally walking

her crew off the job.

First, Wonderful’s position is premised on testimony that was discredited by the

ALJ, specifically the respective testimony of Prudencio and Torres that Vazquez-Lozano

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abruptly told her crew to leave after Prudencio politely asked them “as a favor” to cut the

weeds shorter. As discussed above, the Board properly upheld the ALJ’s credibility

determinations in this context, rendering Wonderful’s argument unavailing.

Moreover, in light of the Board’s factual findings, it could properly conclude that

Prudencio’s conduct rendered the van crew’s status, at a minimum, ambiguous.

Notwithstanding the van crew’s objections to Prudencio’s exhortations to work faster,

there was no evidence that anyone on the van crew suggested leaving the worksite. Even

when Prudencio stopped the van crew’s work in order to press them to work faster, no

member of the crew proposed leaving or threatened to leave. The situation changed only

once Prudencio articulated the “work or leave” ultimatum in the face of the crew’s

complaints about the required pace of work. Immediately after Prudencio made this

statement, the van crew began to depart, and Vazquez-Lozano noted the crew was being

unfairly fired. Thus, the Board’s conclusion that Prudencio caused the confusion over the

crew’s status is supported by substantial evidence. (Pennypower Shopping News, Inc. v.

NLRB, supra, 726 F.2d at p. 630.) As discussed above, the law provides that when an

employer’s actions create confusion or ambiguity regarding an employee’s employment

status, the employer has a duty to clarify the situation. The Board, therefore, did not

improperly shift the legal burden in this respect to Wonderful.

Wonderful also challenges the Board’s conclusion that Wonderful failed to clarify

the ambiguity it had caused as to the van crew’s employment status, and argues the Board

improperly minimized evidence regarding attempts by Torres to clarify the status of the

van crew. We conclude the Board properly considered the relevant evidence, and further,

that the Board’s conclusion that Wonderful failed to clarify the ambiguity created by

Prudencio’s conduct as to the van crew’s employment status, is supported by substantial

evidence.

The record shows that both Prudencio and Torres heard Vazquez-Lozano’s

statement that the van crew should not sign any timesheets, and despite the clear

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implication of this statement that the crew was not leaving voluntarily, neither Prudencio,

nor Torres, spoke up to assure Vazquez-Lozano and her crew that they had not been

terminated.10 (See Duquesne Electric and Manufacturing Co. (1974) 212 NLRB 142,

145 [employee’s statement, within earshot of company owner and supervisors, that she

and her coworkers had been fired, provided “clear notice” of the employee’s apparent

interpretation of the owner’s recent remarks to her and fellow employees, triggering

employer’s duty to clarify].)

While Torres approached the van after Vazquez-Lozano and her crew had boarded

it, asking them to wait and speak to her, she did not specify the purpose for which she

wanted the crew to wait. Moreover, when Vazquez-Lozano eventually spoke to Torres to

ask for the telephone number of a labor union or the Labor Commissioner, indicating she

believed the van crew had been unfairly terminated, Torres simply responded she did not

have the requested information. Torres did not take the opportunity to clarify to either

Vazquez-Lozano as the driver of the group, or to the group as a whole, that the van crew

had not been terminated. 11

III. Wonderful’s Procedural Due Process Arguments

Wonderful asserts, for the first time on appeal, a number of procedural objections

to the hearing in this matter. Wonderful argues that it was denied procedural due process

because, prior to the hearing, the ALRB’s General Counsel maintained the position that

multiple employees complained about the pace of work, but at the hearing, the General

Counsel changed her theory and argued instead that only Vazquez-Lozano complained.

10 The ALJ discredited, after careful analysis of its credibility, Torres’s testimony,

uncorroborated by Prudencio, to the effect that Prudencio had said that no one was fired;

the ALJ found that Torres’s “overly analytical” testimony “defie[d] credulity.”

11 Torres indicated that she spoke separately to one member of the van crew and told

her she could stay and work. Given the group context of the discharge, the ALJ did not

find this evidence relevant; the Board agreed and noted that, even assuming the

interaction occurred, neither Vazquez-Lozano, as the driver for the group, nor the group

as a whole, received any clarification as to their employment status.

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Wonderful further argues that it was denied due process because the General Counsel

stated at the pre-hearing conference that she intended to call four worker-witnesses but

only called Vazquez-Lozano and Hernandez. Finally, Wonderful asserts that the hearing

was procedurally defective because the Spanish-language interpreter allegedly had “side

conversations” with witnesses, the ALJ allegedly construed the Spanish word “corriendo”

favorably to the General Counsel, 12 and the ALJ was biased in making credibility

determinations.

Wonderful did not raise these issues during the administrative proceedings and is

precluded from asserting them for the first time on appeal. Wonderful made no objection

or argument at the hearing, in its post-hearing brief, or in its exceptions to the ALJ’s

decision to the effect that the General Counsel purportedly altered her legal theory.

Likewise, when the General Counsel rested her case after calling two witnesses,

Wonderful did not object or request a continuance or any other relief. Wonderful did not

raise the issue in its post-hearing brief, nor did it file an exception on the issue. With

respect to the language interpretation and bias issues, Wonderful did not object to any

“side conversations” during the hearing or to the ALJ’s handling of the translation of the

word “corriendo,” and nor did Wonderful raise these issues in its exceptions. Wonderful

has therefore not preserved these issues for appellate review. (Lindeleaf v. ALRB (1986)

41 Cal.3d 861, 869-870 [claim that party was improperly denied a hearing was waived on

appeal where it was not raised before the ALRB); Basurto v. Imperial Irrigation Dist.

(2012) 211 Cal.App.4th 866, 892, fn. 6 [“due process and bias issues must be presented

to the hearing officer or tribunal itself for the issue to be preserved”]; Niles Freeman

Equipment v. Joseph (2008) 161 Cal.App.4th 765, 788 [party’s due process claims were

not preserved on appeal because they were not raised during administrative proceedings];

12 At various points in her testimony, Vazquez-Lozano used the Spanish word

“corriendo” to describe the van crew’s ejection from the worksite. The Spanish

interpreter stated that the word could be translated as “kicked out” or as “fired.”

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People v. Romero (2008) 44 Cal.4th 386, 411 [party precluded from asserting errors on

appeal related to interpreter’s conduct, where there was no objection below]; People v.

Aranda (1986) 186 Cal.App.3d 230, 237 [“When no objection is raised to the competence

of the interpreter during trial, the issue cannot be raised on appeal”].) Furthermore, we

are persuaded that Wonderful’s due process arguments are without merit.

IV. Remedy Ordered by the Board

A. Reinstatement Remedy

As noted, the Board adopted the ALJ’s conclusion that Wonderful discharged the

van crew in violation of section 1153, subdivision (a) of the ALRA and thereby

committed an unfair labor practice. As part of its remedy for the unlawful discharge of

the van crew, the Board ordered that Wonderful make an offer of reinstatement, which is

an established part of the standard remedy for unlawful discharges. (Sandhu Brothers

Poultry and Farming, supra, 40 ALRB No. 12, p. 27 [reinstatement is part of the

standard remedy for unlawful discharge]; Phelps Dodge Corp. v. NLRB (1941) 313 U.S.

177, 187 [“Reinstatement is the conventional correction for discriminatory discharges.”].)

Wonderful argues the Board should have omitted this aspect of the remedy because

Prudencio’s supervisor, Alavez, had already offered to reinstate the crew. However, the

Board explicitly stated that, to the extent that Alavez made a valid offer of reinstatement,

the Board’s order did not require Wonderful to make a second offer and Alavez’s offer

would operate to limit Wonderful’s backpay liability. The Board noted that the matter

would properly be addressed at the compliance stage. Accordingly, there are no grounds

to find the Board’s reinstatement remedy to be overbroad or punitive.

B. Company-Wide Notice Reading Remedy

Wonderful argues that the Board’s notice-reading remedy was overbroad, as there

was no evidence that employees other than the members of the van crew were aware of

the unlawful terminations or were impacted by them. The Board addressed Wonderful’s

concerns in this regard in detail and determined that “the noticing remedies recommended

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by the ALJ are justified and consistent with Board precedent.” On appeal, Wonderful

acknowledges that notice reading is an ordinary part of the remedy for unlawful

terminations but suggests this matter is not ordinary, rendering the notice-reading remedy

unwarranted. However, Wonderful has not shown that standard company-wide noticing

falls outside the Board’s admittedly broad remedial discretion in this instance. (Oasis

Ranch Management, Inc. (1992) 18 ALRB No. 11, p. 38 [“extension of the remedy to all

of Respondent’s employees reflect[s] the Board’s normal practice”]; Diepersloot (2018)

44 ALRB No. 12, pp. 10-14 [ordering notice to all employees as a remedy where

employer threatened, terminated, and refused to rehire a single employee]; Sandhu

Brothers Poultry and Farming, supra, 40 ALRB No. 12, pp. 40-44 [ordering notice to all

employees as a remedy where employer terminated one employee who engaged in

protected activity]; P&M Vanderpoel Dairy, supra, 40 ALRB No. 8, pp. 24-27 [ordering

notice to all employees as a remedy where employer terminated five employees for

engaging in protected concerted activity].) We detect no grounds to disturb the Board’s

remedial order.

DISPOSITION

Wonderful’s petition for writ of review is denied. The Board’s order in Wonderful

Orchards, LLC (2020) 46 ALRB No. 2 is affirmed. The Board and Imelda Vazquez-

Lozano are awarded their costs in this original proceeding. (Cal. Rules of Court, rule

8.493(a)(1)(B).)

SMITH, J.

WE CONCUR:

FRANSON, Acting P. J.

PEÑA, J.

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