Summary of a Recent
Judicial Development in
Labor

Discerning Which Employees Are Eligible to Vote on a Union Petition

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Artesia Dairy v. Agriculture Labor Relations Board, 86 Cal. Rptr. 3d 91 (Cal. Ct. App. 2008), the California Court of Appeals held that the Agricultural Labor Relations Board had erred in determining that a dairy owner's foster children were ineligible to vote on a petition to unionize the dairy's agricultural employees, but it upheld the Board's determinations that two other employees were not "agricultural" workers and that two others were "supervisors" and were thus ineligible to vote.

Background

After the Agricultural Labor Relations Board's (Board) determination that certain persons employed by Artesia Dairy were not eligible to vote on the United Farm Workers of America's (UFW) petition to represent Artesia's agricultural employees, the UFW was certified as the exclusive bargaining representative of Artesia's agricultural employees by a 27-to-25 vote, and Artesia challenged the Board's ruling. Id. at 94.

Arguments

Artesia argued that the Board erroneously concluded that the owners' nephews were ineligible to vote because they were the "functional equivalent" of the owners' children, and it argued that its landscaper's work was incidental to or in conjunction with the farming operation and therefore constituted agriculture. Id. Artesia further disputed the Board's determination that one employee was ineligible to vote because she did not spend a substantial amount of her time engaged in agricultural work and that another two employees were supervisors. Id. at 95.

Analysis and Holdings

California Code of Regulations, title 8, section 20352, subdivision (b)(5), provides that the "parent, child, or spouse of the employer" is ineligible to vote on collective bargaining petitions. Id. at 97. The Board had determined that the owner's nephews, who were also his foster children, were ineligible to vote because they were integrated into the family and treated no differently than the owner's natural children, but the court reversed and found that the nephews did not fall within the plainly defined ineligible category of "child." Id. The court affirmed the Board's determination, however, that the gardener was not an agricultural employee because gardening activity did not constitute either primary or secondary agriculture. Id. at 98-99.

Turning to Artesia's next challenge, the court explained that when faced with a "mixed work" situation, as in this case where a primarily domestic employee occasionally performed secondary agricultural work, the Board has consistently applied the substantiality test to determine whether it has jurisdiction. Id. at 100. Applying that test, the court affirmed the Board's determination that the employee was ineligible to vote because she did not spend a substantial amount of her time engaged in agricultural work. Id. at 101.

As to Artesia's last argument, the court explained that California Code of Regulations, title 8, section 20355, subdivision (a)(1), provides that a supervisor is ineligible to vote, and "supervisor" is defined as

any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
Id.

Considering that definition, the court found substantial evidence supporting the Board's findings that two of the employees were supervisors for purposes of section 20355 and thus affirmed the Board's determinations on that issue. Id. at 101-04.

The case was decided on November 20, 2008.