A performance audit of the Arizona Agricultural Employment Relations Board

              STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
A PERFORMANCE AUDIT
0 f
THE ARIZONA AGRICULTURAL
EMPLOYMENT RELATIONS BOARD
SEPTEMBER 1979
THE ACTIVITY LEVEL OF THE AGRICULTURAL
EMPLOYMENT RELATIONS BOARD HAS NOT
JUSTIFIED ITS PRESENT STAFFING LEVEL. AD-DITIONALLY,
THIS LOW ACTIVITY LEVEL HAS
IMPAIRED THE AGRICULTURAL EMPLOYMENT
RELATIONS BOARD'S EFFECTIVENESS AS A
FORUM FOR SETTLING AGRICULTURAL LABOR-MANAGEMENT
DISPUTES IN ARIZONA.
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 79- 7
DOUGLAS R. NORTON, CPA
AUDITOR GENERAL
SUITE 600
112 NORTH CENTRAL AVENUE
PHOENIX, ARIZONA 85004
255- 4385
STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
September 14, 1979
The Honorable Bruce Babbitt, Governor
Members of the S t a t e Legislature
Members of the Agricultural Employment Relations Board
SUITE 820
33 NORTH STONE AVENUE
TUCSON, ARIZONA 85701
882- 5465
Transmitted herewith is a report of the Auditor General, A Performance Audit of
t h e Arizona Agricultural Employment Relations Board. This report is i n
response to a September 19, 1978, resolution of t h e J o i n t Legislative Budget
Committee and a January 18, 1979, r e s o l u t i o n o f t h e J o i n t Legislative Oversight
Committee.
A sumnary of t h i s report is found on the blue pages a t the front of the report.
A response to t h i s report from members of the Agricultural Employment Relations
Board is found on the yellow pages preceding the appendices o f t h e report.
My s t a f f and I w i l l be happy to meet with the appropriate l e g i s l a t i v e
committees, individual l e g i s l a t o r s or other s t a t e o f f i c i a l s to discuss or
c l a r i f y any items i n t h i s report or to f a c i l i t a t e the implementation of the
recommendations.
Staff : Gerald A. Silva
Dwight A. Ochocki
Kirk J. Schneider
Respectfully submitted,
~ o u ~ l Ra. s N orton
Auditor General
O F F I C E OF THE AUDITOR GENERAL
A PERFORMANCE AUDIT OF
THE ARIZONA AGRICULTURAL EMPLOYMENT RELATIONS BOARD
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 79- 7
TABLE OF CONTENTS
SUMMARY
INTRODUCTION AND BACKGROUND
AUDIT SCOPE AND APPROACH
SUNSET FACTORS
FINDINGS
FINDING I
The a c t i v i t y l e v e l of the Agricultural Employment
Relations Board ( AERB) has not j u s t i f i e d its
present s t a f f i n g l e v e l . Additionally, t h i s low
a c t i v i t y level has impaired the AERB1s
effectiveness a s a forum for s e t t l i n g a g r i c u l t u r a l
labor- management disputes i n Arizona.
CONCLUSION
RECOMMENDATION
FINDING I1
The o f f i c e f a c i l i t i e s of the Agricultural Employment
Relations Board appear t o have been used by the
General Counsel of the AERB t o conduct p r i v a t e business.
CONCLUSION
RECOMMENDATION
FINDING I11
The number o f u n f a i r labor p r a c t i c e charges handled
by the AERB i n f i s c a l year 1977- 78 appears to have
been overstated i n r e p o r t s made t o the Budget
Office of the S t a t e Department of Administration.
I n a d d i t i o n , o t h e r AERB a c t i v i t i e s a r e not
adequately documented.
Page
1
2
4
5
CONCLUSION
RECOMMENDATION
FINDING I V
Page
3 1
The AERB could do more t o encourage public input
and p a r t i c i p a t i o n and AERB members should be
replaced or reappointed when t h e i r terms
expire.
CONCLUSION
RECOMMENDATION
OTHER PERTINENT INFORMATION
WRITTEN RESPONSE TO THE AUDITOR GENERAL'S REPORT
APPENDICES
APPENDIX I - Seasonality o f Complaints ( Occurrence per Month)
APPENDIX I1 - Memorandum from Legislative Council Concerning
Use of Office Personnel, Equipment and Supplies
f o r Personal Use
APPENDIX I11 - L e t t e r s from the Office of the Attorney General
APPENDIX I V - L e t t e r from the Office of the Governor
APPENDIX V - L e t t e r regarding General Counsel's p r i v i t e
law practice
APPENDIX V I - Unconstitutional Provisions of Arizona Law -
Federal D i s t r i c t Court Decision
APPENDIX V I I - Supreme Court of the United S t a t e s ' Decision
on Arizona's Agricultural Employment
Relations Act
APPENDIX V I I I - ARS 23- 1381 to 23- 1395
SUMMARY
The Agricultural Employment Relations Board was established on May 11, 1972 to
promote labor peace and keep to a minimum the effects of uncontrolled labor-management
strife. The Board is funded through the State General Fund.
Our review of the Agricultural Employment Relations Board ( AERB) revealed that
the activity level of the AERB has not justified its present staffing level.
Additionally, this low activity level has impaired the AERB1s effectiveness as
a forum for settling agricultural labor- management disputes in Arizona.
( page 10)
Our review also disclosed that the office facilities of the AERB appear to have
been used by the General Counsel of the AERB to conduct private business.
( page 24)
In addition, the number of unfair labor practice charges handled by the AERB in
fiscal year 1977- 78 appears to have been overstated in reports made to the
Budget Office of the State Department of Administration. Further, the AERB is
not adequately documenting unfair labor practice investigations and dismissed
unfair labor practice charges. ( page 28)
Lastly, the AERB1s exposure to the agricultural community and its efforts at
informing the public could be enhanced. Also, our review indicated that only
two of the current six Board members have unexpired terms. ( page 31)
It is recommended that:
1. The Office of the Auditor General re- evaluate the activity level of
the AERB as of June 30, 1980.
2. Use of state property for personal use be prohibited. ( page 27)
3. Modifications to unfair labor charges not be counted as separate and
distinct charges for service measurement reporting purposes. Also,
that written reports be kept to substantiate all investigations.
( page 30)
4. A public awareness program be instigated by the AERB and that Board
members be reappointed or replaced before their terms expire.
( page 35)
INTRODUCTION AND BACKGROUND
In response to a September 19, 1978, resolution o f t h e Joint Legislative Budget
Committee and a January 18, 1979, resolution of the Joint Legislative Oversight
Committee, we have conducted a performance audit as a part of the Sunset Review
of t h e A g r i c u l t u r a l Employment Relations Board, i n accordance with ARS 41- 2351
through 41- 2374.
S t a t e regulation o f a g r i c u l t u r a l labor r e l a t i o n s is an important and
controversial issue. Arizona a g r i c u l t u r a l employees are not included within
the scope of the National Labor Relations Act ( NLRA). Increased a g r i c u l t u r a l
labor union a c t i v i t y has caused some s t a t e s t o enact l e g i s l a t i o n to involve the
State in a g r i c u l t u r a l labor- management a c t i v i t i e s . Arizona was the first s t a t e
t o do so i n 1972, with Kansas, Idaho and California adopting similar
l e g i s l a t i o n .
The Agriculture Employment Relations Board ( AERB) was established in 1972, when
the governor signed i n t o law, H. B. 21 34, which added sections 1381 through
1395 to T i t l e 23 of the Arizona Revised S t a t u t e s . The AERB consists of seven
members appointed by the governor ( ARS 21- 1386). Two of the members represent
a g r i c u l t u r a l employers, two members represent organized a g r i c u l t u r a l labor,
and three members represent t h e g e n e r a l public.
The objective of the AERB is to promote labor peace and keep to a minimum the
e f f e c t s of uncontrolled labor- management s t r i f e . The AERB is intended t o
D provide a forum for the S t a t e ' s a g r i c u l t u r a l industry and employees to settle
disputes.
The AERB, which maintains an office in Phoenix, seeks impartial determinations
for appropriate collective bargaining units, conducts investigations of
alleged unfair labor practices, and certifies secret ballot elections to
determine union representation. The activity level for the AERB during the
last five fiscal years is shown below:
Fiscal Year
1974- 75 1975- 76 1976- 77 1977- 78 1978- 79 a
Activity
Unfair Labor Practices Filed 17 10 2 15 i
Hearings Held on Unfair Labor Practices 3 - - 1 *
Elections 2 1 - - *
Charges Investigated but not Filed 2 0 2 5 30 4 *
The AERB is funded entirely by a General Fund appropriation. Expenditure
information during the last six fiscal years and budget information for 1979- 80
fiscal year is shown below:
Fiscal Year
1973- 74 1974- 75 1975- 76 1976- 77 1977- 78 1978- 79 1979- 80
Description
Full Time Employees - 6 - 6 - 4 - 4 - 4 - 2 - 2
Personal Services $ 70,400 $ 61,700 $ 61,300 $ 66,400 $ 66,200 $ 41,000 $ 45,200
Employee Related Expenses 8,400 7,900 9,350 9,700 11,800 6,800 7,800
Professional Services 600 3,000 3,550 5,000 1,200 400 6,000
Travel - In State 6,800 5,000 2,400 5,100 4,800 500 5,000
Out of State 300 4
Other Operating 9,700 8,700 7,600 6,900 7,600 3,400 6,400
Equipment 1,600 100 1,400 600
Litigation Expense :* 20,000
Total
* No activity due to court injunction March 1978.
** Refer to other pertinent information. ( page 36)
Since its inception, the AERB has been challenged by the United Farm Workers,
one of the two major farm worker unions in the United States. The UFW has
refused to recognize the authority o f the AERB or its enabling Act, and ir?
e f f e c t has boycotted the AERB. In 1973, the UFW f i l e d a lawsuit i n Federal
D i s t r i c t Court challenging the c o n s t i t u t i o n a l i t y o f the Act t h a t established
the AERB. A three- judge Federal panel ruled i n March 1978 t h a t t h e Act was
unconstitutional and imposed a permanent injunction preventing enforcement of
the provisions of the Act. ( Refer to Appendix V I for unconstitutional
prvvisions.)
The AERB appealed the decision to the U. S. Supreme Court. On June 5, 1979, the
United S t a t e s Supreme Court rendered its decision ( r e f e r to Appendix V I I f o r
d e t a i l ) . In essence, the Supreme Court overturned the Federal D i s t r i c t Court
decision that the Agricultural Employment Relations Act was unconstitutional.
According to the Supreme Court, t e s t s of c o n s t i t u t i o n a l i t y w i l l have to be
determined a t the S t a t e r a t h e r than the Federal level.
Audit- Scope and Approach
The audit scope included a review of the operations of the AERB. The audit
focused primarily on f i s c a l years 1973- 74 through 1978- 79.
The audit approach was to review the s t a t u t e s and r u l e s and regulations
governing the AERB to a s c e r t a i n its g o a l s , o b j e c t i v e s and procedures. The
effectiveness of the AERB i n protecting the public was assessed through
interviews with board members, administrative s t a f f , labor organizations,
growers; examination of f i l e s , documents and other records; review o f p e r t i n e n t
f i n a n c i a l data; and through questionnaires mailed to members of Central Arizona
Vegetable Growers and Shippers. The information obtained from these procedures
is the basis for the contents o f t h i s report.
Appreciation is expressed to t h e A g r i c u l t u r a l Employment Relations Board and to
its General Counsel and Administrative Secretary for t h e i r cooperation and
assistance rendered to the Auditor General's Office.
SUNSET FACTORS
In accordance with ARS 41- 2351 through 41- 2374, nine f a c t o r s were considered to
determine, in p a r t , whether the S t a t e Agricultural Employment Relations Board
should be continued or terminated.
These factors are:
1. Objective and purpose i n e s t a b l i s h i n g the AERB,
2. The degree to which the AERB has been able to respond to the needs of the
public and the efficiency with which it has operated,
3. The extent to which the AERB has operated within the public i n t e r e s t ,
4. The extent to which r u l e s and regulations promulgated by the AERB are
consistent with l e g i s l a t i v e mandate,
5. The extent to which the AERB has encouraged input from the public before
promulgating its r u l e s and regulations and the extent t o which it has
informed the public a s t o its actions and t h e i r expected impact on the
public,
6. The extent to which the AERB has been able to i n v e s t i g a t e and resolve
complaints t h a t a r e within its j u r i s d i c t i o n ,
7. The extent to which the Attorney General or any o t h e r a p p l i c a b l e agency of
s t a t e government has t h e a u t h o r i t y to prosecute actions under the enabling
l e g i s l a t i o n ,
8. The extent to which tne AERB has addressed deficiencies i n its enabling
s t a t u t e s which prevent it from f u l f i l l i n g its s t a t u t o r y mandate, and
9. The extent to which changes are necessary i n the laws of the AERB t o
adequately comply with t h e f a c t o r s l i s t e d in t h i s subsection.
SUNSET FACTOR: OBJECTIVE AND PURPOSE
I N ESTABLISHING THE BOARD
The Agricultural Employment Relations Board ( AERB), created i n 1972, has
defined its objectives:
'' To seek impartial determinations o f appropriate u n i t s f o r
c o l l e c t i v e bargaining, i n v e s t i g a t i o n s of alleged unfair
labor practices and conducting and c e r t i f y i n g s e c r e t
b a l l o t e l e c t i o n s to determine representation; t o continue
to oversee labor disputes and use the powers granted by the
l e g i s l a t u r e to resolve such disputes, dispensing f a i r and
equal treatment to all p a r t i e s in order to protect the
i n t e r e s t of a l l concerned p a r t i e s , including the general
public. l1
The defined purpose of the AERB is:
'' To e s t a b l i s h labor peace and keep to a minimum the e f f e c t s
of uncontrolled labor- management s t r i f e by providing a
forum for the s t a t e ' s a g r i c u l t u r a l industry and employees
for s e t t l i n g disputes. l1
SUNSET FACTOR: THE DEGREE TO WHICH
THE BOARD HAS BEEN ABLE TO RESPOND TO
THE NEEDS OF THE PUBLIC AND THE EFFI-CIENCY
WITH WHICH IT HAS OPERATED
The AERB1s authority is limited to actions between labor and management. The
public is an i n d i r e c t beneficiary i f there is an uninterrupted flow of
a g r i c u l t u r a l goods to the consuming public.
The AERB has attempted to f u l f i l l the needs o f labor and management but has had
limited a c t i v i t y . Abstention by the UFW in using the AERB1s services has been
a major contributing f a c t o r t o t h i s limited a c t i v i t y . The general lack o f
a c t i v i t y ( page 10) and circumvention of the AERB ( page 17) manifests t h a t the
AERB has not been able to respond to the needs of the public.
The AERB has not operated e f f i c i e n t l y i n that i t x a c t i v i t y l e v e l does not
j u s t i f y its present s t a f f i n g level. ( page 14)
SUNSET FACTOR: THE EXTENT TO WHICH
THE BOARD HAS OPERATED WITHIN THE
PUBLIC INTEREST
I n those limited i n s t a n c e s when the AERB has been a c t i v e l y involved i n an
a g r i c u l t u r a l labor- management d i s p u t e , it has e'fcctively f u l f i l l e d its
s t a t u t o r y r e s p o n s i b i l i t i e s .
SUNSET FACTOR: THE EXTENT TO WHICH
RULES AND REGULATIONS PROMULGATED BY
THE BOARD ARE CONSISTENT WITH THE
LEGISLATIVE MANDATE
After reviewing the r u l e s and r e g u l a t i o n s promulgated by the AERB, it appears
t h a t these r u l e s and r e g u l a t i o n s a r e c o n s i s t e n t with ARS 23- 1381 through 23-
1395.
SUNSET FACTOR: THE EXTENT TO WHICH
THE BOARD HAS ENCOURAGED INPUT FROM
THE PUBLIC 3EFORE PROMULGATING ITS
RULES AND REGULATIONS AND THE EXTENT
TO WHICH IT HAS INFORMED THE PUBLIC AS
TO ITS ACTIONS AND THEIR EXPECTED IMPACT
ON THE PUBLIC
The meetings of the AERB a r e open t o the public. Notices o f t h e AERB meetings
are posted i n the Arizona S t a t e Building. Additionally, the AERB has prepared
a pamphlet for d i s t r i b u t i o n t o a g r i c u l t u r a l l a b o r e r s which o u t l i n e s t h e i r
r i g h t s under the A g r i c u l t u r a l Employment Relations Act. The general counsel of
the AERB has a l s o given public speeches on the AERBfs function.
However, it appears t h a t the AERB could do more t o encourage input from the
public and inform the public as to its a c t i o n s . ( page 31)
SUNSET FACTOR: THE EXTENT TO WHICH
THE BOARD HAS BEEN ABLE TO INVESTIGATE
AND RESOLVE COMPLAINTS THAT ARE WITHIN
ITS JURISDICTION
The effectiveness of the Board's complaint review process cannot be determined
because of an absence of adequate documentation to support -
1) charge dismissal actions taken by the General Counsel, and
2 ) charges investigated but not f i l e d . ( page 28)
The complaints t h a t were properly documented indicated t h a t the AERB was able
t o i n v e s t i g a t e and resolve complaints within the due process of Arizona law.
SUNSET FACTOR: THE EXTENT TO WHICH
THE ATTORNEY GENERAL OR ANY OTHER
APPLICABLE AGENCY OF STATE GOVERN-MENT
HAS THE AUTHORITY TO PROSECUTE
ACTIONS UNDER THE ENABLING LEGISLATION
The AERB has the authority to prosecute actions on its own behalf. A s of June
30, 1979, the only involvement the Attorney General's Office has had with the
AERB was the AERB1s Appeal to the United S t a t e s Supreme Court ( see Appendix
V I I 1.
SUNSET FACTOR: THE EXTENT TO WHICH
THE BOARD HAS ADDRESSED DEFICIENCIES
I N ITS ENABLING STATUTES WHICH PREVENT
ITS FROM FULFILLING ITS STATUTORY
MANDATE
According to the General Counsel f o r t h e AERB, he has attempted to have the
s t a t u t e s revised t o c l a r i f y and more appropriately describe the scope of
authority and j u r i s d i c t i o n o f t h e AERB. Revisions to the AERB1s enabling
s t a t u t e s have not been made primarily because of the Federally imposed
injunction i n March 1978. A s the Supreme Court has overturned the lower
c o u r t ' s ruling, the General Counsel has s t a t e d t h a t he intends to introduce
recommended s t a t u t e revisions.
It should be noted t h a t ARS 23- 1385 ( B)( 7)* was found to be " unconstitutionally
vague" by a Maricopa County Superior Court Judge on June 22, 1973. This
p a r t i c u l a r s t a t u t e subsection was not addressed by the United S t a t e s Supreme
Court and should be deleted or c l a r i f i e d .
SUNSET FACTOR: THE EXTENT TO WHICH
CHANGES ARE NECESSARY I N THE LAWS OF
THE BOARD TO ADEQUATELY COMPLY WITH
FACTORS LISTED I N THIS SUBSECTION
For a discussion o f these issues, see page 23 and Appendix V I I I .
* See Appendix V I I I for a f u l l t e x t of ARS 23- 1385.
FINDING I
THE ACTIVITY LEVEL OF THE AGRICULTURAL EMPLOYMENT RELATIONS BOARD ( AERB) - HAS
NOT JUSTIFIED ITS PRESENT STAFFING LEVEL. ADDITIONALLY, THIS LOW ACTIVITY
LEVEL HAS IMPAIRED THE AERB'S EFFECTIVENESS AS A FORUM FOR SETTLING
AGRICULTURAL LABOR- MANAGEMENT DISPUTES I N ARIZONA.
From J u l y 1, 1972 t o June 30, 1979, t h e A g r i c u l t u r a l Employment Relations Board
( AERB) has c o s t t h e Arizona taxpayers $ 581,500. I n those l i m i t e d i n s t a n c e s
when the AERB has been a c t i v e l y involved i n an a g r i c u l t u r a l labor- management
d i s p u t e , it has e f f e c t i v e l y f u l f i l l e d its s t a t u t o r y r e s p o n s i b i l i t y . The low
a c t i v i t y l e v e l of the AERB and t h e l i m i t e d use of the AERB's s e r v i c e s have
however, not j u s t i f i e d its s t a f f i n g l e v e l .
Low A c t i v i t y Level
One of the primary f u n c t i o n s o f t h e AERB is t h e i n v e s t i g a t i o n of a l l e g e d u n f a i r
l a b o r p r a c t i c e s . This i n v e s t i g a t i o n process is as follows:
1) A charge is f i l e d by a complainant.
2) The General Counsel o f t h e AERB i n v e s t i g a t e s t h e charge t o determine
its v a l i d i t y .
3) I f the charge is v a l i d it achieves complaint s t a t u s , and t h e General
Counsel o f t h e AERB obtains more d a t a t o prepare t h e complaint form.
4) The complainant has the opportunity t o have t h e case heard before a
T r i a l Examiner who hears both s i d e s of the case and renders a
decision.
5) I f the T r i a l Examiner's decision is appealed, t h e AERB w i l l review
the decision and r e n d e r a n opinion.
6 ) I f t h e case is appealed f u r t h e r , a Superior Court w i l l review the
case and render a decision.
Q u a n t i t a t i v e a n a l y s i s o f t h e AERB revealed t h a t for f i s c a l years 1974- 75
through 1978- 79, only 44 charges were received by the AERB of which 29 achieved
complaint s t a t u s . These 29 complaints were merged i n t o four consolidated
complaints. Three of the T r i a l Examiners' decisions were subsequently appealed
to the AERB ( see Table 1).
In a l l cases, the Board upheld the T r i a l Examiner's decision. Table 1
summarizes the complaint a c t i v i t y of the AERB f o r f i s c a l years 1974- 75 through
1978- 79. a
TABLE 1
SUMMARY OF COMPLAINT ACTIVITY
OF THE AERB FOR FISCAL YEARS
1974- 75 THROUGH 1978- 79
Activity Level a t
Each Stage of the AERB F i s c a l Year
Complaint Process Total 1974- 75 1975- 76 1976- 77 1977- 78 1978- 79
1. Number of charges brought t o the 4
General Counsel of the AERB 4 4 17 10 2 15 i
2. Number of charges which achieved
complaint s t a t u s 2 9 12 3 - 14 *
3. Number of complaints a f t e r 4
merger i n t o a consolidated
complaint 4 3 - - 1 Y
4. Number of consolidated complaints
r e s u l t i n g in a formal hearing 4 3 - - 1
5. Number of consolidated complaints
receiving a T r i a l Examiner's
decision 4 3 - - 1
6. Number of decisions of T r i a l
Examiner appealed t o AERB 3 3"" - - -
* No a c t i v i t y due to court injunction.
** AERB upheld a l l three T r i a l Examiner decisions.
The second major function of the Board is to hold and validate e l e c t i o n s for
union representation.
According to ARS 23- 1389 ( C & D):
" The Board s h a l l i n v e s t i g a t e any p e t i t i o n , and i f it has
reasonable cause to believe t h a t a question of
representation e x i s t s s h a l l provide for an appropriate
hearing upon due n o t i c e . . . i f the Board finds upon the
record of such hearing t h a t a question o f representation
e x i s t s , it s h a l l d i r e c t an election by s e c r e t b a l l o t and
s h a l l c e r t i f y the r e s u l t s thereof. "
From f i s c a l year 1974- 75 to 1978- 79, only three e l e c t i o n s were held. Table 2
summarizes the election a c t i v i t y of the AERB for f i s c a l years 1974- 75 through
1978- 79
TABLE 2
SUMMARY OF ELECTION ACTIVITY OF THE AERB
FOR FISCAL YEARS 1974- 75 THROUGH 1978- 79
P e t i t i o n To Hold Election Submitted By
Laborer's I n t e r n a t i o n a l
Teamsters1 Local
No. 274 No. 310
Union
Election p e t i t i o n s f i l e d 7 1 1
Hearings held f o r e l e c t i o n 5 1 1
Elections held 1 1 1
Elections r e s u l t i n g in
union representation
As a consequence of the limited AERB activity level, the AERBIS General
Counsel, Investigator, and Executive Secretary have not been productively
employed. For example, former General Counsel of the AERB, Bob Dickelman,
indicated that :
"... many times there was absolutely nothing to do because
of the nature of the harvests. There was an excessive
amount of dead time."
The present General Counsel, William Gibney, estimated that:
' I. because of the courts injunction since March of 1978,
I have spent 80- 90% of my time on concerns unrelated to
Agricultural Employment Relations business."
However, Mr. Gibney also indicated that prior to March 1978 " dead timen was a
problem. Table 3 summarizes the annual salaries, estimated annual work hours
and percentage of productive time for the AERB General Counsel, Investigator,
Executive Secretary, and Administrative Secretary during fiscal years 1974- 75
through 1978- 79.
Fiscal
Year
1974- 75
1975- 76
1976- 77
1977- 78
1978- 79
Total
General Counsel ( 1 )
Estimated % of
Annual Work Productive
Salary Hours ( 2) Time
TABLE 3
SUMMARY OF THE ANNUAL SALARIES, ESTIMATED ANNUAL WORK HOURS
AND PERCENTAGE OF PRODUCTIVE TIME FOR THE GENERAL COUNSEL,
INVESTIGATOR, EXECUTIVE SECRETARY AND ADMINISTRATIVE SECRETARY
OF THE AERB DURING FISCAL YEARS 1974- 75 THROUGH 1978- 79
Investigator Executive Secretary
Estimated % of Estimated % of
Annual Work Productive Annual Work Productive
Salarv Hours ( 2) Time Salary Hours ( 2) Time
Administrative Secretary ( 3)
Estimated % of
Annual Work Productive
Salary Hours ( 2) Time
( 1) Estimated work hours and percentage of productive time for the General Counsel are based upon the primary functions performed by the AERB.
( 2) Estimated work hours computed by job function. These calculations were derived by subdividing the charge/ complaint and election processes
into separate steps. The number of hours attributed per each step was estimated by the Board's General Counsel.
( 3) Because of a change in personnel and the absence of adequate records, the Administrative Secretary, who performs various clerical and
accounting functions, was analyzed for the last two fiscal years only.
4 Vacant as of 3/ 17/ 78.
( 5) Time estimation provided by General Counsel for injunctive period.
( 6) An investigator was rehired 6/ 21/ 79, at a salary of $ 14,436. That position had been vacant since 6/ 30/ 78.
Based upon the previous s t a t i s t i c s , it appears t h a t the a c t i v i t y l e v e l of the
AERB does not j u s t i f y a full- time General Counsel, Investigator and Executive
Secretary. These functions could be performed more e f f i c i e n t l y i f " contracted
out."*
We contacted various private attorneys- at- law who s t a t e d t h a t a general counsel
and hearing o f f i c e r ' s experience q u a l i f i c a t i o n were b a s i c a l l y t h e same. The
Arizona Department of Health Services ( DHS) contracts with attorneys to a c t a s
hearing o f f i c e r s . DHS hearing o f f i c e r s must meet c e r t a i n q u a l i f i c a t i o n s , such
a s being an active member o f t h e S t a t e Bar and having a t l e a s t one year of t r i a l
p r a c t i c e experience. The attorney must agree t o conduct prehearing
conferences, legal and/ or f a c t u a l research, r u l e on a d m i s s i b i l i t y o f evidence
and testimony, and make findings of f a c t and conclusions of 1aw. The method of
payment is$ 230.00 for one day, $ 365.00 for two days, $ 500.00 for three days and
$ 135.00 for each day t h e r e a f t e r . In those instances where a hearing o f f i c e r
has been appointed but the p a r t i e s reach a settlement prior to hearing, the
hearing officer is paid a t the r a t e of $ 50.00 per hour up t o a maximum of
$ 250.00.
* The f e a s i b i l i t y of combining the Board with another s t a t e agency was
examined. No e n t i t i e s were i d e n t i f i e d under which the Board could achieve
an e f f e c t i v e operation. Consideration was given to the p o s s i b i l i t i e s of
merging the Agricultural Employment Relations Board with the:
1) I n d u s t r i a l Commission,
2) Attorney General's Office, and
3) Department of Economic Security.
The functions o f the I n d u s t r i a l Commission are not closely r e l a t e d to the
Board, the Attorney General's Office f e l t the expertise in the labor f i e l d
was lacking, and the Department of Economic Security excluded involvement
with " p o l i t i c a l or unionization" a c t i v i t i e s .
By " contracting out," we estimate r e s u l t a n t annual savings would be:
1 ) $ 12,940 t o $ 24,778 for the General Counsel p o s i t i o n , and 2) $ 5,152 t o $ 8,652
for t h e I n v e s t i g a t o r position. The Executive Secretary, Administrative ( I
Secretary, and Investigator are hired by the Board. The General Counsel is
appointed by the Governor and serves a t his pleasure.
There has not been an Executive Secretary s i n c e March 17, 1978, so no current
cost savings would r e s u l t from contracting. The p o s s i b i l i t y o f consolidating
the Administrative Secretary's position within the Arizona S t a t e Boards'
Administrative Office was considered but the estimated cost savings were
i n s i g n i f i c a n t .
According t o the General Counsel of the AERB, the recent Supreme Court decision
w i l l r e s u l t i n an increase i n the a c t i v i t y level of the AERB. It should be
noted t h a t between June 5, 1979 ( the date of the United S t a t e s Supreme Court 4
decision which overruled the lower court decision t h a t the AERB was
unconstitutional) and August 1, 1979, the AERB received the following requests
for service.
1) P e t i t i o n for election - Vukasovich, Inc.
2) P e t i t i o n f o r election - Senini of Arizona
3) Charge against employer - The Woods Co., Inc.
4) Charge against employer - G & S Produce Co., Inc.
It cannot be determined, based upon the limited time t h a t has elapsed s i n c e t h e
Supreme Court decision, i f t h e s e r e q u e s t s for AERB services represent an actual
continuing need for the present s t a f f i n g level o f t h e AERB. Our review,
however, indicates t h a t there may not be an a c t u a l and continuing need f o r t h e
present s t a f f i n g l e v e l because: 1) under Arizona law it is possible to
circumvent the AERB, and 2) the a t t i t u d e of the major farm labor union and
other farm labor groups is still negative toward the AERB.
Circumvention of the AERB
Two o f the primary functions performed by the AERB are to a d j u d i c a t e a l l e g e d
unfair labor practices and c e r t i f y s e c r e t b a l l o t elections to determine union
representation. Our review of the AERB revealed t h a t under Arizona s t a t u t e s it
is not necessary t o use the AERB to a d j u d i c a t e a l l e g e d u n f a i r labor practices
or conduct union elections. This s i t u a t i o n is p a r t i a l l y responsible for the
past low level of AERB a c t i v i t y and may preclude any s i g n i f i c a n t increase i n
future AERB a c t i v i t y .
Adjudication of Alleged
Unfair Labor Practices
The AERB has defined as one of its objectives to conduct:
" investigations of alleged unfair labor practices."
In order to accomplish t h i s objective, the AERB has adopted the following
procedures:
1) The i n v e s t i g a t o r conducts h i s review t o see i f the charge is a bona
f i d e complaint, and
2) If the complaint is determined to be bona fide, more information
( evidence) is gathered i n preparation of obtaining court r e l i e f
( such as obtainment of a temporary r e s t r a i n i n g order).
I f a t the completion of h i s investigation, the General Counsel o f t h e AERB
believes t h a t an unfair labor practice e x i s t s , he may f i l e a p e t i t i o n with any
Superior Court having appropriate j u r i s d i c t i o n to obtain a temporary
r e s t r a i n i n g order on behalf of the complainant. However, under Arizona law, a
complainant can p e t i t i o n t h e c o u r t s d i r e c t l y t o o b t a i n i n j u n c t i v e r e l i e f or a
temporary r e s t r a i n i n g order without having to use the AERB.
Arizona Revised Statutes 23- 1393( A) allows for parties other than the AERB to
petition for injunctions and temporary restraining orders and states:
" Any person who is aggrieved or is injured in his business
or property by reason of any violation of this article, or
violation of an injunction issued as provided in this
section, may sue in any superior court having jurisdiction
of the parties for recovery of any damages resulting from
such unlawful action, regardless of where such unlawful
action occurred and regardless of where such damage
occurred, including costs of the suit and reasonable
attorney fees.
Upon the filing of such suit the court shall also have
jurisdiction to grant such injunctive relief or temporary
restraining order as it deems just and proper. Petitions
for injunctive relief or temporary restraining orders
shall be heard expeditiously. Petitions for temporary
restraining orders alleging a violation of ARS 23- 1385
shall be heard forthwith and if the petition alleges that
substantial and irreparable injury to the petitioner is
unavoidable such temporary restraining orders may be
issued pursuant to Rule 65 of the Arizona Rules of Civil
Procedure." ( Emphasis added)
Therefore, ARS 23- 1393 ( A) allows for any person to petition the courts for
injunctive relief or a temporary restraining order. As a result, the AERB and 4
its adjudication of alleged unfair labor practices function can and has been
completely circumvented. For example, the following cases are instances of the
AERB being circumvented:
1) April 4, 1973, DIArrigo Brothers v. United Farm Workers, Pinal
County, No. C26803;
2) June 12, 1973, Safeway Stores v. United Farm Workers, Maricopa
County, No. C278338;
3) June 21, 1974, Kennard v. United Farm Workers, Maricopa County, No.
C294873 ;
4) February 20, 1976, Warren Page, d/ b/ a/ Page's Market and Page's
Western Auto v. United Farm Workers, Maricopa County, No. C328259.
By way of c o n t r a s t , California s t a t u t e s require t h a t a temporary r e s t r a i n i n g
order must first be routed through the C a l i f o r n i a A g r i c u l t u r a l Labor Relations
Board ( ALRB), which is the California equivalent of the AERB. The General
Counsel then conducts an i n v e s t i g a t i o n and prepares recommendations f o r the
ALRB. If the ALRB so determines, a temporary r e s t r a i n i n g order is obtained
from a court of appropriate j u r i s d i c t i o n .
Since its inception on June 5, 1975 t o June 30, 1978, the California ALRB has
investigated 399 complaints of unfair l a b o r p r a c t i c e s . The AERB, however,
during that same period of time has investigated only 27 complaints of unfair
l a b o r p r a c t i c e s .
C e r t i f y i n g E l e c t i o n
" Certifying s e c r e t b a l l o t elections t o determine representation" is another of
the AERB1s primary objectives. However, t h i s function, l i k e adjudicating
a l l e g e d u n f a i r labor p r a c t i c e s , can be accomplished without using the services
of the AERB. This also contributes to the limited a c t i v i t y l e v e l of the AERB.
In Arizona, a g r i c u l t u r a l e l e c t i o n s t o determine representation can be
conducted using e i t h e r t h e s e c r e t b a l l o t method or the card check system.
Under the s e c r e t b a l l o t method of s e l e c t i n g representation, the p e t i t i o n e r
( i . e . , farm laborersf union) must have a t l e a s t 30% of the designated employees
of a unit mark t h e i r I1authorization cards" favoring union representation.
According to the AERB1s Field Manual of Case Handling Procedures, " an e l e c t i o n
may not be held sooner than four days.. . Where the p a r t i e s wish a prompt
e l e c t i o n , t h e employer w i l l make the list ( upon approval of an e l e c t i o n , t h e
employer is requested t o prepare a list of e l i g i b l e voters and t h e i r addresses)
available in l e s s than 10 days."
A t the time of t h e e l e c t i o n , voters provide proper i d e n t i f i c a t i o n and are given
a b a l l o t . The voter proceeds to the voting booth and marks the b a l l o t . The
voter leaves the booth and places the folded b a l l o t i n t o t h e b a l l o t box. After
a l l voters have c a s t t h e i r b a l l o t s , t h e s l o t i n the b a l l o t box should be
sealed, with the AERB agent maintaining personal custody. The vote count ( I
should take place a s soon a f t e r the close of the voting a s possible. Actual
p a r t i c i p a n t s are AERB agents and o f f i c i a l observers. According to the Field
Manual, " a union, to win, must receive one more vote than 50 percent."
a
However, under a card check system an employer may be required to bargain when
a union obtains " authorization cards" from a majority o f the workers on the
employer's payroll authorizing t h e union to a c t as t h e i r bargaining agent. The
signatures on the a u t h o r i z a t i o n c a r d s are v e r i f i e d to payroll records by 4
p a r t i e s not d i r e c t l y involved in t h e e l e c t i o n process, such a s Western Growers*
and a clergyman. If the union successfully obtains a v e r i f i e d majority o f
a u t h o r i z a t i o n c a r d s it becomes the farm laborers' bargaining representative.
Two instances of t h i s method of " electionn occurred i n 1974 f o r Pasquinelli •
Produce and Vukasovich, Inc. of Yuma, Arizona.
C a l i f o r n i a ' s a g r i c u l t u r a l labor law, approved by the Governor on June 5, 1975,
" provide( s) for the holding of a s e c r e t b a l l o t election i n a bargaining u n i t •
composed of a g r i c u l t u r a l employees of an employer for the s e l e c t i o n o f a labor
organization as t h e i r exclusive bargaining representative, and would provide
the procedure f o r p e t i t i o n s f o r , the conduct o f , and the e l i g i b i l i t y of
a g r i c u l t u r a l workers t o vote i n , such elections." According t o o f f i c i a l s of a
the C a l i f o r n i a A g r i c u l t u r a l Labor Relations Board ( ALRB), card check system
e l e c t i o n s are not allowed i n California and a l l union e l e c t i o n s must be
c e r t i f i e d by the ALRB.
A comparison of Arizona's e l e c t i o n a c t i v i t y to C a l i f o r n i a ' s is shown i n Table
4.
* Western Growers' Association is a non- profit organization, founded in
1926. Membership comprises approximately 80% of a l l growers and shippers
of fresh f r u i t s and vegetables in California and Arizona. 4
TABLE 4
COMPARISON OF ELECTION ACTIVITY I N THOSE
STATES THAT HAVE AGRICULTURAL LABOR ACTS
FOR FISCAL YEARS 1974- 75 THROUGH 1977- 78
F i s c a l
Year
1974- 75
ARIZONA C a l i f o r n i a *
* Information obtained through the INITIAL REPORT
TO THE LEGISLATURE ON THE ADMINISTRATION OF THE
AGRICULTURAL LABOR RELATIONS ACT OF 1975. ** Act passed i n 1975, i n f o r m a t i o n n o t a v a i l a b l e .
Negative A t t i t u d e Toward The AERB
Since its inception i n 1972, t h e AERB has been opposed by the UFW. Our review
of t h e AERB revealed t h a t d e s p i t e the June 5, 1979, Supreme Court decision, the
UFW and other farm labor groups remain opposed t o t h e AERB. The negative
a t t i t u d e of these farm labor groups toward t h e AERB has c o n t r i b u t e d t o t h e low
l e v e l of AERB a c t i v i t y and may continue t o do so i n t h e f u t u r e .
A s p a r t of our review we contacted s e v e r a l farm labor groups i n order t o a s s e s s
the e f f e c t i v e n e s s o f the AERB. We found the a t t i t u d e of these farm labor
groups toward t h e AERB t o be generally negative.
For example:
1) The UFW, r e f u s e s t o recognize the AERB and t h u s e f f e c t i v e l y thwarts
any " forum" the AERB wishes t o maintain. Even a f t e r the June 5,
1979, Supreme Court d e c i s i o n , Marc Grossman, t h e A s s i s t a n t t o the
P r e s i d e n t o f the United Farm Workers, s a i d on June 13, 1979;:
I t . . . the UFW w i l l still d e f i n i t e l y NOT USE the
A g r i c u l t u r a l Employment Relations Board."
2) National and l o c a l labor organizations which provide the farm
laborer with s e r v i c e s s i m i l a r t o those offered by the AERB are also
c r i t i c a l of the AERB. For example:
" Both the Board and the Agricultural Employment
Relations Act have been t o t a l l y i n e f f e c t i v e i n
resolving labor- management disputes. There is no
confidence i n the Board's election process primarily
due to the delay or postponement provisions."
J i m Rutkowski, Attorney
United Farm Workers
" The AERB is i n e f f e c t i v e and provides no assistance
to the farm worker t h a t we ourselves do not supply."
Lupe Sanchez, Executive Director
Maricopa County Organizing Project
" Board members do not serve t h e b e s t i n t e r e s t of the
public. They a r e unaware of the labor a c t i v i t y
around them and do not have contact with the labor
world . "
John Blake, Representative
Teamsters Local No. 274
" While I was d i r e c t o r f o r Legal Services for
Farmworkers from June ' 76 t o Aug. ' 78, the AERB
produced not one positive contribution for the
a g r i c u l t u r a l laborers of t h i s s t a t e . The AERB lacks
c r e d i b i l i t y , one of the many reasons why labor does
not take advantage of the Board's services."
Gary Bryant, Staff Attorney
Migrant Legal Action Program
Washington, D. C.
Without the support of farm labor groups t h e e f f e c t i v e n e s s of the AERB has been 4
and w i l l continue to be severely impaired.
CONCLUSION
The low level of AERB a c t i v i t y has not j u s t i f i e d its present s t a f f i n g l e v e l or
budget authorization. The h i s t o r i c a l l y low level of AERB a c t i v i t y is primarily
the r e s u l t of two factors: 1) i n Arizona it is possible to circumvent the AERB,
notably i n the areas of i n v e s t i g a t i n g unfair labor practices and c e r t i f y i n g
e l e c t i o n s , and 2) the UFW and other farm labor groups do not support the AERB.
While there has been some requests for AERB s e r v i c e s s i n c e t h e June 5, 1979
Supreme Court decision, it appears t h a t circumvention of the AERB and the lack
of farm labor support may a l s o preclude any f u t u r e increases in the l e v e l of
AERB a c t i v i t y .
RECOMMENDATION
The Office of the Auditor General should re- evaluate the a c t i v i t y l e v e l of the
AERB as of June 30, 1980. I f the level of a c t i v i t y for the AERB has not
increased to the point of j u s t i f y i n g its present s t a f f i n g l e v e l , e i t h e r :
- ARS 23- 1393( A) be amended to prevent the circumvention o f t h e AERB,
or
- The present s t a f f i n g l e v e l of the AERB be s u b s t a n t i a l l y reduced by
replacing the full- time positions of General Counsel and
Investigator with part- time positions. Any needed AERB
investigations could be " contracted out" thus eliminating slack time
and excessive costs from $ 18,092 to $ 33,430. The i n v e s t i g a t o r is
hired by the Board. The General Counsel however, is appointed by the
Governor and serves at h i s pleasure.
FINDING I1
THE OFFICE FACILITIES OF THE AGRICULTURAL EMPLOYMENT RELATIONS BOARD APPEAR TO
HAVE BEEN USED BY THE GENERAL COUNSEL OF THE AERB TO CONDUCT PRIVATE BUSINESS.
In the normal course of our performance a u d i t , we became aware of the possible
use of S t a t e materials and f a c i l i t i e s by the General Counsel of the AERB for
personal gain. This matter was turned over to the Attorney Generalls Office
f o r further investigation.
A l e g a l f i l e was observed on top of the General Counsells desk t h a t was l a t e r
i d e n t i f i e d by the Administrative Secretary a s being part of a private law case
t h a t belonged to the AERB1s General Counsel. According to the Administrative
Secretary, she had a l s o worked on other p r i v a t e law cases for the General
Counsel. Not knowing t h e e x t e n t of the monies involved nor the extent of the
c o n f i d e n t i a l i t y of a lawyer- client r e l a t i o n s h i p , we sought advice from the
Legislative Council. On May 10, 1979*, we received an opinion t h a t s t a t e d :
"... the fact s i t u a t i o n s described... appear t o be v i o l a t i v e
of s t a t e laws r e l a t i n g to t h e f t . "
The o p i n i o n ' s t a t e s i n pact:
" There is no s p e c i f i c s t a t e s t a t u t e prohibiting an
employee of a s t a t e agency from using s t a t e resources to
promote personal gain. However, we must conclude t h a t the
f a c t s i t u a t i o n s described i n paragraph 1, items ( a ) , ( b)
and ( c ) appear t o be v i o l a t i v e of s t a t e laws r e l a t i n g to
t h e f t ( T i t l e 13, chapter 18, Arizona Revised S t a t u t e s ) .
Arizona Revised S t a t u t e s section 13- 1802 provides, i n
r e levant part :
* Appendix I1 is a f u l l t e x t of the Legislative Council opinion.
" A. A person commits t h e f t i f , without lawful a u t h o r i t y ,
such person knowingly:
1. Controls property of another with the i n t e n t to
deprive him of such property; or
2. Converts for an unauthorized term or use
services or property of another entrusted to the
defendant or placed i n the defendant ' s
posssession for a limited, authorized term or
use.
Relevant d e f i n i t i o n s are prescribed i n Arizona Revised
S t a t u t e s section 13- 1801 and include: ...
1. ' Control1 or ' e x e r c i s e c o n t r o l 1 means t o a c t so
as to exclude others from using t h e i r property
except on the defendant's own terms.
2. ' Deprive' means t o withhold the property
i n t e r e s t of another e i t h e r permanently or for so
long a time period t h a t a s u b s t a n t i a l portion of
its economic value or usefulness or enjoyment is
l o s t , or t o withhold it with the i n t e n t to
r e s t o r e it only upon payment of reward or other
compensation or to t r a n s f e r o r dispose of it so
t h a t it is unlikely to be recovered. . . .
6. ' Property o f another' means property i n which
any person other than the defendant has an
i n t e r e s t which the defendant is not privileged
t o i n f r i n g e , including property i n which the
defendant also has an i n t e r e s t , notwithstanding
the f a c t t h a t the other person might be
precluded from c i v i l recovery because the
property was used in an unlawful transaction or
was subject t o f o r f e i t u r e a s contraband.
Property in possession of the defendant is not
deemed property of another person who has only a
security i n t e r e s t i n such property, even if
l e g a l t i t l e is i n the c r e d i t o r pursuant to a
s e c u r i t y agreement.
7. ' Services1 includes labor, professional
s e r v i c e , t r a n s p o r t a t i o n , telephone, gas or
e l e c t r i c i t y s e r v i c e s , accommodation in hotels,
r e s t a u r a n t s , leased premises or elsewhere,
admission to exhibitions and use of vehicles or
other movable property.
!' The term ' p e r s o n , ' a s defined i n Arizona Revised S t a t u t e s
s e c t i o n 13- 105, paragraph 21, includes a government or
governmental a u t h o r i t y . Paragraph 27 o f t h e same s t a t u t e
defines ' p r o p e r t y ' a s meaning anything of value, t a n g i b l e
o r i n t a n g i b l e . We believe t h a t the use of s t a t e o f f i c e
personnel s e r v i c e s , o f f i c e equipment and o f f i c e s u p p l i e s
f o r p r i v a t e business c o n s t i t u t e s t h e crime of t h e f t a s
prescribed by the s t a t u t e s c i t e d above. No lawful
a u t h o r i t y e x i s t s f o r permitting a s t a t e employee t o use
such items o r s e r v i c e s f o r p r i v a t e business. Equipment
and s u p p l i e s c l e a r l y a r e s t a t e property which an employee
is not p r i v i l e g e d t o i n f r i n g e . Personnel s e r v i c e s of the
t y p e d e s c r i b e d i n t h i s request a r e s e r v i c e s as defined i n
Arizona Revised S t a t u t e s s e c t i o n 13- 1801, paragraph 7.
Conversion of those s e r v i c e s is c l e a r l y p r o h i b i t e d by
Arizona Revised S t a t u t e s s e c t i o n 13- 1802, subsection A,
paragraph 2."
The response from the Attorney General's Office indicated:
I f . . . On May 18, 1979, the Office o f t h e Auditor General
informed the Office o f t h e Attorney General of the above
circumstances and an i n v e s t i g a t i o n was i n i t i a t e d by t h a t
Office. During t h e course of t h e i n v e s t i g a t i o n , the
General C o u n c i l ( s i c ) of the AERB informed t h e i n v e s t i g a t o r
from t h e Office of t h e Attorney General t h a t he had been
given verbal permission from an a s s i s t a n t t o then Governor
Castro t h a t he could continue h i s p r i v a t e l a w p r a c t i c e i n
the S t a t e o f f i c e , i n a d d i t i o n t o h i s d u t i e s with t h e S t a t e .
When contacted by the O f f i c e o f t h e Attorney General, the
i d e n t i f i e d former g u b e r n a t o r i a l a s s i s t a n t admitted t h a t he
had given the General C o u n c i l ( s i c ) permission t o continue
h i s p r i v a t e l a w p r a c t i c e while i n the S t a t e o f f i c e , but
could not r e c a l l any conversations t h a t he had concerning
the use of S t a t e property and personnel i n t h a t p r a c t i c e .
A t the conclusion of its i n v e s t i g a t i o n , the O f f i c e o f the
Attorney General prepared an i n t e r n a l r e p o r t and a copy
was s e n t t o an a s s i s t a n t t o Governor Babbitt. The Office
of the Attorney General, a f t e r a n i n v e s t i g a t i o n of t h i s
matter, declined prosecution...."*
* Appendix I11 a r e the l e t t e r s from the Office of the Attorney General.
The response from the Executive Assistant to the Governor was;
" Pursuant to your inquiry as to Mr. Gibneyls authorization
to utilize facilities of his office and personnel to
conduct legal business not relating to the Agricultural
Employment Relations Board, I have discussed the matter
with Mr. Gibney and informed him that such activities are
not authorized. Whatever past misunderstandings there may
have been as to Mr. Gibneyls right to enter into outside
law practice, he now understands that he is not to utilize
his state office, personnel, or other facilities to
conduct any outside law practice."*
CONCLUSION
The General Counsel of the AERB appears to have used state property, supplies
and personnel to conduct his own private legal practice.
RECOMMENDATION
We recommend that the use of state facilities, supplies and personnel for the
private personal gain of the General Counsel of the AERB be stopped
immediately.
FINDING I11
THE NUMBER OF UNFAIR LABOR PRACTICE CHARGES HANDLED BY THE AERB I N FISCAL YEAR
1977- 78 APPEARS TO HAVE BEEN OVERSTATED I N REPORTS MADE TO THE BUDGET OFFICE OF
THE STATE DEPARTMENT OF ADMINISTRATION. I N ADDITION, OTHER AERB ACTIVITIES ARE
NOT ADEQUATELY DOCUMENTED.
The AERB uses the number of u n f a i r l a b o r p r a c t i c e charges it handles a s one
means t o j u s t i f y its budget a u t h o r i z a t i o n . Our review of the AERB revealed
t h a t i n some i n s t a n c e s the AERB has counted the same u n f a i r l a b o r charge two
times when accumulating s t a t i s t i c a l d a t a f o r budgetary purposes. A s a r e s u l t ,
t h e AERB is submitting budget information t h a t o v e r s t a t e s its a c t u a l a c t i v i t y
l e v e l t o the Department of Administration and the L e g i s l a t u r e . I n a d d i t i o n ,
other AERB a c t i v i t i e s a r e not adequately documented.
Unfair Labor P r a c t i c e Charges Are Misleading
Unfair labor p r a c t i c e charges a r e c u r r e n t l y counted by the AERB as s e p a r a t e and
independent charges i f :
1. The name of the charged party on a previously f i l e d charge is changed
due t o l e g a l circumstances;
2. The same complaint is f i l e d by family members with d i f f e r e n t
surnames; and
3. Additional v i o l a t i o n s a r e added t o a previously f i l e d charge.
I n f i s c a l year 1977- 78 t h e AERB reported t o the Department of Administration
t h a t 30 u n f a i r labor p r a c t i c e charges were f i l e d when the a c t u a l count appears
t o be only 15. F u r t h e r , i n those 15 charges only t h r e e d i f f e r e n t p a r t i e s were
charged. For example: I n October 1977, charges were f i l e d a g a i n s t MCOP
( Maricopa County Organizing P r o j e c t ) . I n December 1977, these same charging
p a r t i e s were again recorded except t h a t t h e charged party was now the United
Farm Workers. Thus, these basic charges were counted two times by the AERB as
s e p a r a t e and independent charges.
Table 5 summarizes the number of u n f a i r l a b o r p r a c t i c e charges f i l e d with the
AERB and t h e number of p a r t i e s charged during t h e f i s c a l year 1977- 78.
TABLE 5
COMPARISON OF THE NUMBER OF UNFAIR LABOR
PRACTICE CHARGES FILED WITH THE AERB PER
REPORTS SUBMITTED TO THE BUDGET OFFICE
AND PER AUDIT
Unfair Labor
P r a c t i c e Charges
F i l e d with
the AERB
Per Reports
Submitted
F i l i n g F i l e d F i l e d To The Per
Date Against BY B u d g e t o f f i c e Audit
MCOP
MCOP
MCOP
MCOP
MCOP
MCOP
MCOP
MCOP
M. Okabayshi
M. Okabayshi
M. Okabayshi
M. Okabayshi
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
UFW
B & T Farms*
G. Matsumori*
Evercrisp Veg.*
Davis Packing*
T r i p l e T Farms*
Phoenix Veg.*
J. Okabayshi*
Tanita Farms*
M. Cardiel
J. Cardiel
H. Cardiel
L. Cardiel
Tanita Farms**
B & T Farms*
Phoenix Veg.*
J. Okabayshi*
G. Matsumori*
Davis Packing*
T r i p l e T Farms**
Evercrisp*
Tanita Farms*
Bodine Produce
Bodine Produce
Anthony Farms
Anthony Farms
Tanita Farms
Evercrisp
Phoenix Veg.
G. Matsumori
Motion t o D i s m i s s * "
* Charges 1 through 8 and 14 through 21 a l l r e l a t e t o the " Green Onion .
S t r i k e . " The name o f t h e charged party was merely changed from MCOP t o 4
UFW. Available records do not i n d i c a t e t h a t any a d d i t i o n s or work was
performed f o r charges . I4 through 21.
** Erroneously included per recordkeeper.
According t o the General Counsel of the AERB, any change i n an o r i g i n a l and/ or
subsequent charge c o n s t i t u t e s a new charge. It should be noted however, t h a t
the ALRB i n C a l i f o r n i a does not f o r example, count a j u r i s d i c t i o n a l change t o
an already f i l e d charge a s a s e p a r a t e charge.
Unfair Labor Practice Investigations
And Dismissed Unfair Labor Practice
Charges Are Not Adequately Documented
Since 1974, the AERB has not maintained any logs or records for informal
investigations and in some cases, formal investigations. In addition, unfair
labor practice charges that have been dismissed by the General Counsel of the
AERB are not adequately documented. As a result, it is not possible to assess
the accuracy of the number of informal investigations performed by the AERB
from 1974 to 1979, nor is it possible to assess the appropriateness of the
General Counsel's action in dismissing unfair labor practice charges.
Agricultural Employment Relations Board service measurements indicate that
since 1974, 123 informal and formal investigations have been performed.
However, our review of AERB records revealed that since 1974, no logs or
records have been kept for informal investigations and in some cases, formal
investigations. Prior to 1974, informal investigative written reports were
maintained but because of the general inactivity of the AERB informal investi-gative
reports have been oral since 1974.
Agricultural Employment Relations Board records also indicate that since 1974,
the General Counsel of the AERB has dismissed 15 charges of unfair labor
practices. However, AERB records are not adequate to document the procedures
used by the General Counsel when investigating the dismissed charges or to
allow for an evaluation of the appropriateness of the General Counsel's
actions.
CONCLUSION
The AERB counts as separate unfair labor charges any amendments to previously
filed charges. As a result, it appears that the AERB overstated its activity
level in a report it submitted to the Department of Administration and the
Legislature during fiscal year 1977- 78. Further, the AERB is not adequately
documenting unfair labor practice investigations and dismissed unfair labor
practice charges.
RECOMMENDATION
We recommend that the AERB not count as separate charges amendments to
previously filed charges. In addition, written reports should be kept of all
investigations. Finally, all unfair labor charges which are dismissed by the
General Counsel of the AERB should be adequately documented.
FINDING IV
THE AERB COULD DO MORE TO ENCOURAGE PUBLIC INPUT AND PARTICIPATION AND AERB
MEMBERS SHOULD BE REPLACED OR REAPPOINTED WHEN THEIR TERMS EXPIRE.
Our review of the AERB revealed two additional areas that need improvement.
These areas are:
1 ) The AERBts exposure to segments of the agricultural community and its
efforts at encouraging input from the public and informing the public
of its actions could be enhanced.
2) Four of the current six AERB members have expired terms.
The AERB1s Exposure To The Agricultural
Community And Its Efforts At Informing The
Public Could Be Enhanced
From February 27, 1974 to July 1979, the AERB held 33 public meetings.
However, a member of the general public attended only one of these 33 meetings.
Although the AERB 1) posts notices of meetings in the Arizona State Building
as required, 2) has prepared a pamphlet for distribution to agricultural
laborers which outlines their rights under the Agricultural Employment
Relations Act, and 3) the General Counsel of the AERB has given public
speeches on the AERB1s function, additional efforts can be made by the AERB to
promote public visibility.
In order to assess the manner in which the AERB encourages public input and the
extent to which the AERB informs the public of its meetings, actions, and their
expected impact, the Office of the Auditor General conducted two surveys. One
survey was of present and past AERB members who were asked how input from the
public was encouraged by the AERB when promulgating rules and regulations.
Responses from AERB members included:
" The group ( AERB members) has not encouraged input from
the public."
" Meetings have been open but not attended by many
v i s i t o r s . "
A g r i c u l t u r a l Employment Relations Board members were a l s o asked how the AERB
informs t h e public as t o its a c t i o n s and t h e i r expected impact. Responses from
AERB members included:
" No standard procedures a r e f o l l ~ w e d . ~
!' No public r e l a t i o n s t o my knowledge."
" It does not and should n o t . T h i s is t h e function of a
f r e e press."
" Only by news r e l e a s e s - t o t h e b e s t o f my knowledge."
A second survey was conducted of the Central Arizona Vegetable Growers and
Shippers. The Central Arizona Vegetable Growers and Shippers was s e l e c t e d f o r
a survey as many of its members had f i l e d complaints with the AERB. Of the 13
persons who responded t o t h e survey, f i v e persons ( 38 p e r c e n t ) , s t a t e d t h a t
they were not familar with t h e AERB.
Methods For Improving
Public P a r t i c i p a t i o n
M r . Ernest Gellhorn, former Dean of Arizona S t a t e University College of Law and
a recognized a u t h o r i t y on a d m i n i s t r a t i v e procedure law, has formulated recom-mendations
f o r improving the Federal Administrative Procedures Act. Many of
these recommended a c t i o n s a r e equally a p p l i c a b l e t o s t a t e r e g u l a t o r y bodies.
According t o M r . Gellhorn*:
" 1. Agency o b l i g a t i o n s . Minimum c o n s t i t u t i o n a l require-ments
a r e i n s u f f i c i e n t reasons f o r agencies t o f a i l t o - - -
explore a p p r o p r i a t e procedures f o r providing e f f e c t i v e
n o t i c e t o t h e a f f e c t e d public. ( Emphasis added)
* Techniques o f P u b l i c Involvement, S t a t e Planning S e r i e s 11, Council of
S t a t e Planning agencies, pp 12- 13. T h i s s t a t e m e n t is a summary o f Gell-horn's
A r t i c l e , " Public P a r t i c i p a t i o n i n Administrative Proceedings,"
Yale Law J o u r n a l , Volume 81, No. 3 ( January 1972) pp 398- 401.
" 2. Meeting public notice needs. Agencies should be
required t o provide i d e n t i f i e d , accessible sources of
information about proceedings i n which public p a r t i c i -
pation is possible ... Rt a minimum, each agency
should :
a. S t r i v e t o provide notice a s f a r i n advance of the
proceeding as possible; and
b. Prepare a separate b u l l e t i n issued p e r i o d i c a l l y ,
identifying the proceeding and providing relevant
information.
3. Attracting and focusing public a t t e n t i o n . The public
can be made aware of important agency proceedings i n
many ways, such as press releases t o news media;
requirements t h a t applicants d i r e c t l y inform users;
s p e c i a l n o t i c e t o governmental bodies, c i t i z e n groups
or trade associations; and separate agency l i s t i n g s of
s i g n i f i c a n t matters.
Coverage i n the news media is perhaps the most
e f f e c t i v e way of reaching the average c i t i z e n , and
public i n t e r e s t groups and agencies should make
special e f f o r t s t o encourage reporting of t h e i r
a c t i v i t i e s . Factual press r e l e a s e s w r i t t e n i n l a y
language should explain the significance of the
proceedings and the opportunities f o r public
p a r t i c i p a t i o n . Releases describing important
proceedings with a local geographical impact should be
sent t o area news media. In major matters, agencies
might consider p u b l i c s e r v i c e advertisements and
announcements over local broadcasting f a c i l i t i e s .
Direct mailings a r e yet another a l t e r n a t i v e . "
( Emphasis added)
In August 1975, the then Attorney General, Bruce E. Babbitt, f u r t h e r amplified
t h e s e i d e a s i n a memorandum t o a l l s t a t e agencies. Forms of public notice
discussed were:
1. Newspaper Publications
In many cases, notice of meetings can be disseminated by providing
press releases t o newspapers published i n the area i n which notice is
to be given. In addition, paid l e g a l notices i n such newspapers may
be purchased by the governing body.
Some bodies may wish to provide a mailing list whereby persons
desiring to obtain notices of meetings may ask to be piaced on a
mailing list. All notices of meetings issued will then be mailed to
those appearing on the current mailing list.
3. Articles or Notices in Professional or Business Publications
In addition, the governing body may obtain publication of articles or
notices in those professional and business publications relating to
the agency's field of regulation.
Four Of The Current Six AERB
Members Have Expired Terms
Attention is needed in the appointment of AERB members. The appointment of
AERB members is the responsibility of the Governor. A review of AERB records
and discussions with AERB members revealed that since August of 1975, four of
the six AERB members have been serving with expired terms of from one to four
years, including the Chairman of the AERB whose term expired in August of 1977.
Table 6 summarizes the AERB membership and the expiration dates for their terms
as of June 30, 1979.
TABLE 6
SUMMARY OF AERB MEMBERSHIP AND THE
EXPIRATION DATES FOR THEIR TERMS
AS OF JUNE 30, 1979
Original
Appointment Expired Reappointment
BLAKE, Gene* 8/ 14/ 72 8/ 14/ 76
BOICE, W i l l i a m 8/ 14/ 72 8/ 14/ 74 713 1/ 74
CONSAUL, John* 8/ 14/ 72 8/ 14/ 75
HOLGATE, Edward* 8/ 14/ 72 8/ 14/ 78
MCMANUS, Jack 8/ 14/ 72 8/ 14/ 74 713 1/ 74
MONTGOMERY, Jack 8/ 14/ 72 8/ 14/ 73 8/ 14/ 73
SANDERS, Milton* 8/ 14/ 72 8/ 14/ 77
UDALL, Jessee 8/ 14/ 72 8/ 14/ 73 8/ 14/ 73
WALDEN, Keith 8 / 14/ 72
( a l t e r n a t e )
Expires
8/ 14/ 79
8/ 14/ 78
( Resigned 11 / 15/ 77)
8/ 14/ 78
( Resigned 10/ 15/ 74)
( Resigned 10/ 15/ 75)
* Membership expired
CONCLUSION
The AERB1s e f f o r t s t o encourage input from t h e p u b l i c and inform the public as
t o its a c t i o n s and t h e i r expected impact could be enhanced.
Also, AERB members have not been reappointed or replaced since J u l y 1974. A s a
r e s u l t , four o f t h e s i x AERB members a r e s e r v i n g w i t h e x p i r e d terms.
RECOMMENDATION
The AERB should i n i t i a t e a public awareness program. Secondly, AERB members
should be reappointed o r r e p l a c e d b e f o r e t h e i r terms expire.
OTHER PERTINENT INFORMATION
A s of June 1, 1979, the AERB and the Attorney General's Office have spent
$ 25,224 t o appeal the case o f Babbitt, Governor of Arizona vs. United Farm
Workers National Union t o the United S t a t e s Supreme Court. These costs do not
include time spent by the AERB1s General Counsel f o r preparatory and research
work. Table 7 summarizes the court costs incurred by the AERB and the Attorney
General's Office.
TABLE 7
SUMMARY OF COURT COSTS INCURRED BY THE AERB AND
THE ATTORNEY GENERAL'S OFFICE
TO APPEAL THE CASE OF BABBITT, GOVERNOR OF
ARIZONA VS. UNITED FARM WORKERS NATIONAL UNION
TO THE UNITED STATES SUPREME COURT AS OF
JUNE 1, 1979
Agricultural Employment Relations Board
Costs
Attorneys1 fees
Exchange graphics
Other printing
Total
Attornev General's Office
Attorneys' fees
Exchange graphics
Total
Total S t a t e Costs as of 6/ 01/ 79 t o Appeal
the Case t o the United S t a t e s Supreme Court
BRUCE BABBITT
GOVERNOR
0 AGRICULTURAL EMPLOYMENT RELATIONS BOARD
1688 WEST ADAMS, ROOM 221
PHOENIX, ARIZONA 85007
( 602) 27 1- 5989
September 5, 1979
Mr. Douglas R. Norton
Auditor General, State of Arizona
112 Forth Central Avenue
Suite 600
Phoenix, Arizona 85004
Dear Mr. Morton:
Enclosed please find the General Counsel's response
to your draft of the Performance Audit Report for
the Agricultural Employment Relations Board.
I apologize for the delay in finalizing this report
for your office, however, due to the shortness of
time we were alloted, and increasing activity for
the Board, I have found it difficult to find adequate
time to address some of the delicate issues raised
by your report.
For the reasons I have stated in the introduction and
as substantiated by the text of the rebuttal, I hope
you will give serious consideration to my comments
before you draft your final report. I see no reason
why portions of Findings I, 11, and 111 should be
included if our rebuttal helps clarify some of those
issues.
I should add that at all times Messrs. Kirk Schneider
and Dwight Ochocki of your office were pleasant, con-genial,
and cooperative. If we can be of any more
assistance to your office, please do not hesitate to
call on us.
,&: stR tfully yy_ Su? rfnsy f,
William Gibney
WG : ms
Enclosure
THE ARIZONA AGRICULTURAL EMPLOYMENT RELATIONS BOARD
GENERAL COUNSEL'S RESPONSE TO PERFORMINCE AUDIT REPORT
TABLE OF CONTENTS
FINDING I
FINDING I1
FINDING I11
FINDING IV
APPEND ICES
Appendix1 - AERBPublicDocketLog
Appendix I1 - L e t t e r from Campesinos Independientes
Appendix I11 - L e t t e r from Bonnie Sharman
Appendix IV - L e t t e r from Michael and Esther S l a t e r
Appendix V - L e t t e r from Sandra Reaney
Page
GENERAL COUNSEL'S RESPONSE TO PERFORMANCE AUDIT REPORT
FINDING I :
THE ACTIVITY LEVEL OF THE AGRICULTURAL EMPLOYMENT RELATIONS BOARD ( AERB)
HAS NOT JUSTIFIED ITS PRESENT STAFFING LEVEL, ADDITIONALLY, THIS LOW ACTIVITY
LEVEL HAS- IMPAIRED THE AERB ' S EFFECTIVENESS AS A FORUM FOR SETTLING AGRICULTURAL
LABOR- MANAGEMENT DISPUTES I N ARIZONA.
Our f i l e s and newspaper accountings i l l u s t r a t e t h a t we have had:
I. Farmworkers r e i n s t a t e d when unjustly discharged;
2. Prevented violence, bloodshed and destruction of property;
3. Saved acres of valuable crops v i t a l t o t h i s S t a t e ' s economy;
4. Allowed workers to continue working although intimidated and
threatened by outside influences.
This " success" has served the needs of our a g r i c u l t u r a l community and the public
i n t e r e s t of t h i s S t a t e , and has demonstrated the ~ o a r d ' s a b i l i t y , when t e s t e d ,
to achieve t h e L e g i s l a t i v e i n t e n t " to prevent the uninterrupted flow of agricul-t
u r a l products."
More importantly, however, it should be explained why the level of a c t i v i t y has
been so low during the past seven years. From the very outset, t h e A g r i c u l t u r a l
Employment Relations Act was challenged in Federal Court by one of the l a r g e s t
Unions t h a t the Act endeavors to l e g i s l a t i v e l y control t h e i r attempt to organize
a g r i c u l t u r a l labor - the United Farm Workers, As in the i n s t a n t case, i f a
party challenges a law t h a t d i r e c t l y a f f e c t s t h e o b j e c t i v e s and very existence
of that party, it i s only natural that they would not want to compromise t h e i r
position with respect to t h a t challenge by subjecting themselves to the constraints
of the very law they seek to have abolished. That would be l i k e l o s i n g t h e b a t t l e
while waiting to lose the war. It was the union's hope and intention t h a t by
abstaining organizational e f f o r t s i n Arizona pending t h e c o n s t i t u t i o n a l r u l i n g , -
that some day there would not be a law to prescribe labor/ management constraints.
No one wants to give in to l e g i s l a t i v e control i f a t some date t h e a p p l i c a t i o n of
that law may become moot.
This was evidenced i n the 1930' s on the Federal level by the National Labor
Relations Board, weathering the stormy f i r s t four years of its existence when
they handled only 40 cases because of the wrath of lawsuits f i l e d by the Unions
sought to be controlled by the NLRA. Although the Performance Audit Report
r e f e r s to t h e C a l i f o r n i a Act on occasion, it declines to o f f e r any of the above
information. In addition, it neglects t o s t a t e t h a t Cesar Chavez, President a
of the United Farm Workers, was a co- author of the California Act.
The report also seems to pay very l i t t l e a t t e n t i o n to the f a c t that for nearly
15 months during the l a s t 18 months, the Arizona Board was under a Court ordered
injunction prohibiting it from exercising any enforcement of the Arizona Act.
A t one point i n the report, a statement is made that the present General Counsel
admits t h a t i n the past year, 80 to 90% of h i s time was spent on unrelated Board
a c t i v i t i e s . Taking t h i s statement out of context, the report did not bother to
include the f a c t that:
1. The Board was enjoined from performing i t s duties during
t h i s period;
2. An attempt to circumvent the injunction would have subjected
the General Counsel and the Board to contempt of Court vio-l
a t i o n s .
Although the Auditor i s s t i l l dubious, perhaps t h i s question of a c t i v i t y level
is now moot since the a c t i v i t y level in t h e p a s t month has increased over the
record reflected during t h e p a s t seven years. ( See attached Public Docket Log
for Unfair Labor Practices and Petitions for Election, Appendix I).
The Auditors concluded t h a t the ~ o a r d ' s low level of a c t i v i t y may continue.
Although it is impossible to predict t h e f u t u r e of a g r i c u l t u r a l labor i n Arizona,
it appears the trend has reversed i t s e l f . ( See Richard ~ a r c i a ' sl e t t e r of
August 27, 1979, Appendix II), Since July 30, 1979, we have had eight unfair
labor practice charges f i l e d with the Board, and have conducted three e l e c t i o n s ,
with one more to be conducted on September 19, 1979.
I have also been contacted by Lupe Sanchez concerning elections that may be held
a t c i t r u s farms in Maricopa County. He s t a t e d t h a t he has read where a Union
in Yuma has been victorious in some representation elections conducted by the
Board, and inquired as to what the procedures a r e f o r petitioning by Unions.
Moreover, Board Investigator, Gus Oviedo, has contacted the United Farm worker's
o f f i c e i n El Mirage where he learned that when the contracts now being nego-t
i a t e d in California are completed, an organizing committee w i l l be coming i n t o
the Valley for purposes of organizing green onion workers. Whether the UFW
chooses to organize within or without the provisions of the AEU i s meaningless;
regardless of t h e i r conduct it w i l l require considerably more work for the Board.
I f we can use any of the foregoing as a barometer for measuring the level of
a c t i v i t y we can expect, it seems quite c e r t a i n t h a t it i s unfair to compare the
a c t i v i t y levels before and a f t e r the Supreme court's decision of June 5, 1979.
I might also add that the Supreme Court, in i t s decision, admonished the United
Farm Workers to t e s t the provisions of the Arizona law as it should have done
from i t s inception.
Assuming arguendo, however, I conclude that even i f current a c t i v i t y level de-creases,
t h a t the previous low level of a c t i v i t y or the p o s s i b i l i t y of l i t t l e
a c t i v i t y i n the future, does not warrant a reduction i n work force. It i s impera-t
i v e when dealing with t h i s highly v o l a t i l e and s e n s i t i v e area, and with thousands
of workers who do not understand English, never mind the law, to e s t a b l i s h a
rapport between the Board and those it attempts to serve. To lend c r e d i b i l i t y to
the Board by providing for a constant t r u s t i n the expertise of the people con-ducting
the Board's a f f a i r s , is an important f a c t o r t h a t cannot be taken l i g h t l y .
Experts in the area of a g r i c u l t u r a l labor law a r e r a r e commodities and t o i n t e r r u p t
or f a l l short in t h i s expertise would do l i t t l e to advance the reputation of the
Board and objectives of the Act.
Since i t s inception, the Board has c o s t t h e S t a t e approximately $ 80,000 a year, a
small amount when compared to the peace and harmony within the a g r i c u l t u r a l indus-t
r y it has provided. An additional savings of $ 20,000 to $ 30,000 a year, as advo-cated
by the Auditor, appears to be of l i t t l e significance when compared to the
lack of continuity, t r u s t and e x p e r t i s e t h a t may r e s u l t due to the state's squander-ing.
We must also look a t the ~ u d i t o r ' s suggestion t o h i r e an o u t s i d e a t t o r n e y to sit
on an ad hoc basis as general counsel for the Board. I suggest that t h e i r example
only touches the t i p of the iceberg. The d a i l y costs they have quoted us might
appear to be cost e f f i c i e n t , i f a l l we are concerned with are the number of days
3
a general counsel may spend a t an actual hearing or t r i a l . Even with limited
a c t i v i t y , the investigator and general counsel, p r i o r t o t r i a l , must spend
numerous hours interviewing witnesses, taking a f f i d a v i t s , perform incidental
i n v e s t i g a t i o n s , o b t a i n m a t e r i a l s and e x h i b i t s , prepare r e p o r t s , complaints,
motions, and supportive b r i e f s before the t r i a l even begins, and, of course,
there are always post trial memorandum, motions and appeals with accompanying
o r a l argument, and the never ending continual attempt to discover or adduce
new evidence and testimony. This is a l l very time consuming, and only a f u l l - a
time general counsel, o r r e t i r e d attorney, would have the time to adequately
f u l f i l l the duties. Case i n point was the green onion s t r i k e of 1977. Mr.
Oviedo and I worked approximately twelve hours a day, s i x to seven days a week,
for approximately s i x weeks. Much of my time was spent preparing for court,
and i n court. Much of Mr. oviedo's time was spent i n the f i e l d s gathering
witnesses and evidence for me to use a t t r i a l . A private investigator and pri-vate
attorney would have to give up t h e i r full- time practice to accept a part-time
job as described herein. This is true even with a low level of a c t i v i t y .
An attorney and i n v e s t i g a t o r would have to be paid by the hour or be on r e t a i n e r ,
because they would never accept such a contract which would force them to l e t
t h e i r own practice be handled by someone else.
I submit that although on paper, perhaps, the Auditor's recommendations look
cost- effective, when in a c t u a l i t y , they are impractical, and probably cost- waste-f
u l , notwithstanding the lack of continuity, t r u s t and expertise - v i t a l elements
when achieving maximum c r e d i b i l i t y for any agency.
a
I also must wonder where such an attorney would be located. Would he have a
background in labor law? Has he represented labor? O r management? If we h i r e
an a t t o r n e y who has a labor background to handle matters of labor and one with a
management background to handle those matters of management, what would happen
when counterclaims or cross- claims were f i l e d and both sides now need to be
represented by t h e i r respective general counsels. This would cause a b u i l t - i n
c o n f l i c t of i n t e r e s t , having two attorneys, obstensibly representing the S t a t e a
of Arizona, on opposite sides of the fence. If instead, the contracted attorney
has no labor background, then the reputation of the ~ o a r dw i l l l o s e t h e c r e d i -
b i l i t y t h a t I have referred to e a r l i e r . The bottom l i n e i s , I find it d i f f i c u l t
to believe t h a t the Auditor's recommendation i s i n f a c t cost- effective. To the
contrary, I find it impractical,
I find it i r o n i c t h a t I am now i n the process of hiring a part- time investigator
and c l e r i c a l to supplenent our current s t a f f , so that we may more e f f i c i e n t l y
and expeditiously, and in turn, more economically, serve the needs of the people.
It i s our position that i f t h e c u r r e n t trend continues, we w i l l need s t i l l
additional s t a f f , o f f i c e s , and the reinstatement of an executive secretary.
Possibly, we could be merged with another agency, but we would s t i l l require the
same number of s t a f f , and o f f i c e space and equipment. More importantly, however,
we would l o s e t h e autonomy necessary to divest and devoid ourselves of any out-side
or p o l i t i c a l influence.
There i s no nexis or connection between the success of the limited a c t i v i t y with
the a b i l i t y for the Board to respond t o t h e needs of the public, If there have
been only minimal labor disputes, then the level of need has also been minimal.
If there is l i t t l e or no a c t i v i t y ( possibly due to the impending application of
l e g i s l a t i v e c o n s t r a i n t s l e v i e d by the AERA and the watchful eye of the AERB) then
there is likewise l i t t l e or no need. Conversely, the wish of the people has been
f u l f i l l e d t o insure the uninterrupted flow of a g r i c u l t u r e , the primary need of
our a g r i c u l t u r a l industry. Using the level of a c t i v i t y as a yardstick to measure
the Board's a b i l i t y to respond to the needs of the people, is an u n f a i r and an
erroneous barometer, attempting to compare apples with oranges, or, to compare an
objective " need1' with an uncontrolled variable " activity" that does not neces-s
a r i l y or may or may not a f f e c t the objective, just as when the end does not
necessarily j u s t i f y the means. I n other words, t h e o b j e c t i v e of preventing the
uninterrupted flow of a g r i c u l t u r a l products could b e t t e r serve the needs of the
public or could be f u l l y accomplished, i f there were no labor disputes whatso-ever.
Therefore, the ~ o a r d ' sr ecord of measurable a c t i v i t y would be zero, but
we w i l l have achieved our s t a t u t o r y objectives.
Circumvent ion
The General Counsel agrees t h a t Section 23- 1393A should be amended so t h a t under
c e r t a i n s i t u a t i o n s agrieved p a r t i e s w i l l not be able to circumvent the duties and
functions of the AERB. Moreover, 1 have, on numerous occasions urged t h i s revision
to the Governor, Attorney General and the Legislature. This c o n f l i c t could be
easily r e c t i f i e d by simply providing in the same provision that agrieved p a r t i e s
may p e t i t i o n in Superior Court only for damages, done so in conjunction with unfair
labor practice charges that have already been f i l e d with t h e ~ o a r d . his is how
it is done i n California and under the NLRB. According to my information, it
appears t h a t most factions i n t e r e s t e d in the provisions of the AEU would
agree t o t h i s revision, However, it should be noted that during the green
onion s t r i k e of 1977, agrieved p a r t i e s have discovered t h a t the most econom-i
c a l and e f f i c i e n t way of resolving labor disputes i s through the expertise
of the Board, r a t h e r than the Superior Court, who seldomly handles labor matters.
As per the NLRB, the AERB was created t o s p e c i f i c a l l y resolve labor disputes
a
with an expertise normally lacking by courts of general j u r i s d i c t i o n .
On the other hand, however, it is the General counsel's opinion that the c e r t i f i -
cation procedures provided by the AERA do not allow for circumvention of the
~ o a r d ' s operations, I f informal recognition agreements are contested by outside
p a r t i e s t h e apparent circumvention of the c e r t i f i c a t i o n procedures can be thwarted
by the Board. In some cases, as is with the NLRB'S informal recognition pro-ceedings,
management and labor find it mandatory i f not imperative to seek expe-d
i t i o u s resolutions of v o l a t i l e labor disputes, which then requires simplified
informal c e r t i f i c a t i o n by the Board. However, it i s our opinion, now that the
Supreme Court has upheld the c o n s t i t u t i o n a l i t y of the Act, t h a t more and more
unions and growers w i l l find it in t h e i r favor to be c e r t i f i e d by the Board pursu-a
ant to a formal election r a t h e r than an informal c e r t i f i c a t i o n procedure. Under
informal agreements, there are c e r t a i n advantages given to the employer in return
for his cooperation to enter into the informal agreement. Conversely, the union
knows now t h a t those advantages are not worth the disadvantages that w i l l then
confront the union concerning the lack of good f a i t h bargaining on the part of
the grower. See Agricultural Employment Relations Act Section 23- 1385. A( 5) and
B( 4). This new outlook may be i l l u s t r a t e d by the recent rash of elections held
by the Board ( see Appendix I).
FINDING I1
THE OFF ICE FACILITIES OF THE AGRICULTURAL EMPLOYMENT RELATIONS BOARD
APPEAR TO HAVE BEEN USED BY THE GENERAL COUNSEL OF THE AERB TO CONDUCT
PRIVATE BUS INESS .
This portion of the r e b u t t a l w i l l be comprised of a two- pronged defense of my
actions concerning t h e p r i v a t e p r a c t i c e I engage i n from my S t a t e o f f i c e ,
F i r s t , a substantive a t t a c k based on t h e a u t h o r i t y I have been given to conduct
a p r i v a t e p r a c t i c e , and secondly, a procedural a t t a c k concerning the Auditor
~ e n e r a l ' s authority to pursue t h i s issue a f t e r the proper a u t h o r i t y ( t h e Attorney
~ e n e r a l ' s o f f i c e ) has declined prosecution of the matter and dismissed the case.
( See Appendix 111.)
Authority t o Conduct P r i v a t e P r a c t i c e from S t a t e Office
In February, 1975, when I f i r s t learned o f the pending appointment of the General
Counsel to the AERB by the Governor, I was told by A1 Rogers, a overn nor's aide
who hired me, Bob Dickelman the immediate past General Counsel, and a number of
other attorneys who were e i t h e r aware of the position or were applying for the
position, t h a t t h e n i c e s t feature about the General counsel's position was t h a t ,
as a special counsel in the l i m i t e d a r e a of a g r i c u l t u r a l labor law, and due to
periods of i n a c t i v i t y , t h a t t h e General Counsel could conduct a p r i v a t e practice.
Although I have never considered my authority to conduct a law p r a c t i c e from my
S t a t e o f f i c e , it does seem p e r f e c t l y n a t u r a l f o r me to assume, inherent in t h a t
authority to have a p r i v a t e p r a c t i c e , is the permission to conduct t h a t p r a c t i c e
from my o f f i c e as long as I avoid c o n f l i c t s of i n t e r e s t , and use good judgement
and sound d i s c r e t i o n . I was never told whether t h i s p r a c t i c e could or could not
be conducted from my S t a t e o f f i c e . However, because I am a f u l l - t i m e exempt
employee of the S t a t e , and I know t h a t my primary r e s p o n s i b i l i t y , t h a t of General
Counsel, it is therefore imperative that I be t o t a l l y accessible to the Board i n
order to f u l f i l l those r e s p o n s i b i l i t i e s . It is logical to me, t h a t authority to
have a p r i v a t e p r a c t i c e from my S t a t e o f f i c e was implicit because of my f u l l -
t i m e s t a t u s and my r e s p o n s i b i l i t i e s t o t h a t position. I a l s o believe t h a t i n
order to maintain my p r i o r i t i e s , t h a t occupying two d i f f e r e n t o f f i c e s would pre-sent
c e r t a i n c o n f l i c t s t h a t may impair my a b i l i t y to serve i n e i t h e r capacity to
my f u l l e s t extent. Accordingly as long as my a b i l i t y to serve as ~ e n e r a lC ounsel
has not been impaired, and as long as there are slack periods, as a special counsel,
I should be allowed to continue my p r i v a t e practice from my S t a t e o f f i c e .
I agree, however, t h a t I should not use S t a t e supplies, which would naturally
c o n s t i t u t e an extra expense on the S t a t e , but that the use of my o f f i c e space
and my s e c r e t a r y , when convenient and appropriate, should be included under my
authority to have a private practice, I conclude that as long as there are
levels of i n a c t i v i t y for my secretary and I, assuming they may continue, neither
of us should have to be i d l e , i f there i s something we could be doing. I should
include, however, t h a t i n the past four years, I have only served nine c l i e n t s ,
who a r e a l s o friends of mine, i n private matters, Because my a s s o c i a t e , Michael
Beers, handles most of the written material ( solely to avoid the p o s s i b i l i t y of
c o n f l i c t s i n my capacity as a S t a t e o f f i c i a l ) my secretary has only had to type
two pleadings and two j o i n t statements, in addition to some cover l e t t e r s to
Mr. Beers during t h a t time frame, In f a c t , on several occasions, e i t h e r my
c l i e n t s o r myself, when necessary, have typed c e r t a i n documents ( see Appendix
111). It is also our position t h a t c e r t a i n l y what Mrs. Olds does on her own time,
during coffee breaks, lunch hours and evening hours, in addition to the " dead a
periods" is her own option.
Although I have not seen a copy of the l e t t e r Mr. Beers sent to the Auditor General
concerning our association, I do wish to have t h a t l e t t e r included as part of t h i s a
response.+: I assume t h a t it points out our agreement of association and the pur-poses
that Mr. Beers is to perform as a r e s u l t of t h a t association. A11 of the
cases t h a t I have handled, as I s t a t e d e a r l i e r , have been for f r i e n d s , and a t no
time have I ever represented to them, or have they ever thought t h a t they were
being represented by the S t a t e of Arizona. A l l of them know t h a t my primary obli-gation
i s to my S t a t e job and t h a t my i n t e g r i t y and l o y a l t i e s must f i r s t l i e with
t h a t r e s p o n s i b i l i t y as General Counsel ( see Appendices V and VI).
A l l of the Attorneys that I have worked with or opposed, in both my private prac-t
i c e and my S t a t e job, know that I conduct a p r i v a t e p r a c t i c e , a s a s i d e l i g h t ,
and on many occasions I conduct both my p r i v a t e p r a c t i c e and my S t a t e business
from my home, solely so that I w i l l always be available to my private c l i e n t s and
to those who I serve as a S t a t e o f f i c i a l . This has been t h e c a s e day or night,
weekdays or weekends. On one occasion I declined to accept a case because of the
p o s s i b i l i t y of a c o n f l i c t with a S t a t e agency. Likewise, one time I had to post-pone
a deposition, when Mr. Beers could not attend, because i t conflicted with
some S t a t e business I was conducting.
* See Appendix V of audit report.
8
I should also include the f a c t t h a t l a s t year my income, as reported to the
Internal Revenue Service, included only $ 600 from funds received due to my
private practice. It appears t h i s year, because one of my remaining cases has
been s e t t l e d , that I should have an additional income of nearly $ 3,000, These
amounts a r e not large by any means, but they do mean a great deal to me and I
do not want to give them up, I think i t ' s important for me to continue in
private practice, when appropriate, in order to keep my f e e t wet in the private
sector. My position with the S t a t e i s an exempt appointed position that could
be terminated a t any time, and r e t a i n i n g p r i v a t e l i t i g a t i o n i s some insurance
for me, i f that were to happen.
I would also l i k e to r a i s e a r a t h e r strong objection to another statement made
by the Auditor's Report t h a t has been taken out of context and therefore is a
gross misrepresentation. In Finding I of the Performance Audit Report it i s
stated t h a t the " present General Counsel admits t h a t during t h e p a s t year, 80 to
90% of his time was spent on unrelated Board activity." As I pointed out i n my
r e b u t t a l to Finding I, that although the statement is t r u e , the f a c t s should
have been added within t h a t paragraph, that during t h a t same time period, I was
enjoined from acting as ~ e n e r a lC ounsel for even one per cent of the time. It
also f a i l s to indicate that when I made that statement, I also said t h a t most of
the time I have nothing to do because of the i n j u n c t i o n , b u t that i f I do any-thing
a t a l l , it was probably something unrelated to Board a c t i v i t y . This gener-a
l l y means that I spent a couple hours a week doing unrelated business. The
conclusion is, therefore, that 80 or 90% of very l i t t l e is even l e s s .
I have never kept my p r i v a t e p r a c t i c e a s e c r e t from anyone. I have no reason to.
It has been reported in numerous feature a r t i c l e s , in newspapers, and on radio
and t e l e v i s i o n , and it was r e l i e d upon l a s t year by the Mayor's Committee on the
Employment of the Handicapped when I was t h e r e c i p i e n t of the Runner- Up to the
Handicapped Employee of the Year. Because of my service to the community i n a
number of areas, and my a b i l i t y i n t h e l e g a l profession, I have been appointed
by the Governor to several d i f f e r e n t advisory boards. In a l l endeavors, how-ever,
I am known f i r s t as a Special Counsel to the Governor, and I w i l l not com-promise
that reputation.
The Auditor ~ e n e r- a l-' sO- f-- f- i- c- e n-- n- e- s - N. o-- t n n ~ r et hp ~ l ~ t h n r int r- ~ ~ I & - - - ---- LAUC. rUILLLJ " A. UUL. LL) UIL
tion to Concern I t s e l f with the General ~ o u n s e l ' s Private Practice as Part of
Its Performance Report.
I appreciate the f a c t that during the course of a routine performance a u d i t ,
that the Auditor believed that they revealed some i l l e g a l conduct on t h e p a r t
of the General Counsel, and t h e r e a f t e r f u l f i l l e d t h e i r duty and obligation as
both a representative of the S t a t e and a concerned c i t i z e n by n o t i f y i n g t h e
proper a u t h o r i t i e s of t h e i r alleged discoveries. These apparent findings,
however, were only coincidental to the purpose of a performance a u d i t r e p o r t
and have no basis for inclusion i n the report i t s e l f . According to the Perform-ance
Audit Report, there are nine s t a t u t o r y factors to be considered t o properly
conduct a performance audit of the AERB. Nowhere in the n i n e f a c t o r s l i s t e d is
there any s t a t u t o r y j u r i s d i c t i o n or s t a t u t o r y a u t h o r i t y o r other duty or obliga-t
i o n to continue t h i s matter beyond t h a t of lodging a complaint with the only
agency that does have t h e a u t h o r i t y to investigate and prosecute these matters.
It appears to me that although the Attorney General has dismissed the matter,
t h a t f o r some unforeseen reason, the Auditor General's Office chooses to pursue
it, even though it i s beyond the scope of t h e i r authority, and therefore it
seems curious to me why nearly a t h i r d of the Report concerns i t s e l f with an
issue t h a t i s beyond t h e i r purview and towit I have been exonerated by those
t h a t have t h e a u t h o r i t y to prosecute,
In May I spoke with Dale Pontius, legal counsel to the Governor, who informed a
me of these allegations. He s t a t e d t h a t I may continue my p r a c t i c e , but cautioned
me to use good judgement, sound d i s c r e t i o n , and a t a l l costs, avoid the possi-b
i l i t y of c o n f l i c t . Mr. Pontius assured me that there would be no reason f o r t h i s
to be included i n the Performance Audit Report. In July I spoke with Phil rl
MacDonald, Special Prosecutor for the Attorney General's o f f i c e , who informed me
that the case had in f a c t been dismissed, and yet on August 20, I received t h i s
Performance Audit Report which continues to belabor the subject.
The Attorney ~ e n e r a l ' s o f f i c e made a thorough and complete investigation of this
matter and recommended to the Special Prosecutor that the matter be dismissed.
However, based on i d l e c u r i o s i t y and guesswork, the Auditor General's o f f i c e i s
obliged to go outside t h e i r authority and j u r i s d i c t i o n to make me the major target a
i n what i s supposed to be a " performance report."
Conclus ion
My devotion and unblemished record w i l l not allow me to ignore my r e s p o n s i b i l i t i e s
to e i t h e r the S t a t e , my private c l i e n t s , or to the court, I f e e l that I have
neither prejudiced nor jeopardized nor compromised myself, my c l i e n t s , the S t a t e ,
or the Court. My actions have been completely above- board and e t h i c a l , Unfortun-a
t e l y , due to an a c c i d e n t a l finding of the Auditor General's o f f i c e , when conduct-ing
a performance audit, I have been unduly subjected to criminal suspicions
because of an incomplete and p a r t i a l report which neglects to include v i t a l f a c t s
pertinent to the accusations. The r a t h e r cursory findings of the Auditor out-lined
in his report could imply that I have a large, t h r i v i n g p r i v a t e p r a c t i c e
which impairs my a b i l i t y t o f u l f i l l my r o l e as General Counsel when a t b e s t , my
practice can only be described as limited.
In March, 1975, when I was appointed I understood t h a t as General Counsel I would
be faced with periods of i n a c t i v i t y . Accordingly, i n a r o l e a s Special Counsel
to the Governor i n a s p e c i f i c area of law, as opposed to an Assistant Attorney
General, I could carry on a p r i v a t e p r a c t i c e during those " dead periods," i f it
did not i n t e r f e r e with my a b i l i t y to function as General Counsel. I was also told
that although I was considered a full- time employee, my job would not always
e n t a i l 40 hours a week. Accordingly, prior to the injunction, most weeks I only
worked as General Counsel an average of 20 to 30 hours, with the exception of the
green onion s t r i k e , when I worked an average of 60 hours a week, for approximately
s i x weeks. During those s i x weeks, I put my p r i v a t e p r a c t i c e a s i d e to f u l l y assume
my duties as General Counsel, This exemplifies my a t t i t u d e when conducting my
primary and secondary businesses .
15
I therefore conclude that I do have t h e a u t h o r i t y to conduct a p r i v a t e p r a c t i c e
from my S t a t e o f f i c e , but that the Auditor General's o f f i c e does not have the author-i
t y to continue i t s probe of t h i s matter. Because I find it necessary for my wel-f
a r e to maintain a limited p r i v a t e p r a c t i c e which affords me additional income, and'
because the matter has been resolved in my favor by the proper a u t h o r i t i e s , I urge
the Auditor General to delete t h i s issue from h i s report since it has been taken out
of his hands and i s out of his jurisdiction.
FINDING 111:
THE NUMBER OF UNFAIR LABOR PUCTICE CHARGES HANDLED BY THE AERB I N FISCAL
YEAR 1977- 78 APPEARS TO HAVE BEEN OVERSTATED IK REPORTS MADE TO THE BUDGET OFFICE
OF THE STATE DEPARTMENT OF ADMINISTRATION. IN ADD ITION, OTHER AERBACT IVIT I- ES ARE NOT ADEQUATELY DOCUMENTED.
Although there i s some merit to the suggestions found i n Finding I11 of the Per-formance
Audit Report ( which w i l l be discussed below) my strongest objection, I
find, which I take personal exception to, is the unfounded implication t h a t the
~ o a r d ' s documentation system was designed to overstate i t s service measurements
reports for budgetary purposes to the Department of Administration. Overstatement
was never our intention and mere supposition should not be included in what i s
supposed to be an unbiased, f a c t u a l audit report.
Although our system of documenting cases may appear to the Auditor to have padded
the number of charges as found i n our records, the controversy is purely a d i f f e r -
ence of opinion i n the method of documenting cases with subsequent findings of
new violations. The procedure we have followed began i n 1972 as designed by the
f i r s t of three executive s e c r e t a r i e s . The primary question appears to be, how to
adequately record a second violation of a related o r i g i n a l charge, It is my
opinion that i f the second v i o l a t i o n requires any additional work by the i n v e s t i -
gator or general counsel, it should be regarded as a separate and d i s t i n c t charge,
although related to the o r i g i n a l , In a l l cases where a new violation is dis-covered,
and a d d i t i o n a l i n v e s t i g a t i o n of that matter is required so t h a t both the
investigator and the general counsel must perform t h e i r ordinary, routine motions
of handling the case, j u s t a s i f it were the o r i g i n a l charge. Under t h i s example,
we have in f a c t conducted two separate and d i s t i n c t investigations and the general
counsel i s required to make two separate determinations, which may or may not be,
l a t e r consolidated. Nevertheless, twice the amount of work was conducted. There-fore,
our records must r e f l e c t the same.
The Performance Audit Report also s t a t e s t h a t more than one charge i s reported,
although the charges are from d i f f e r e n t members of the same family. I f members
of a single family e l e c t to a l l f i l e separate charges, we can only, a f t e r conduct-ing
a thorough investigation of each of the charges, consolidate t h e c a s e a t a
l a t e r date, i f appropriate, i f a l l charges are warranted. The key, then, is
whether a l l of the charges are warranted. Perhaps t h e i n v e s t i g a t i o n w i l l reveal,
then, the charges should only pertain to one of the members, or something l e s s
than a l l of the members of the family. But i n any event, a separate investiga-tion
is required for each charge to determine i t s v a l i d i t y . This, therefore,
must be documented accordingly.
The same was t r u e during the green onion s t r i k e of 1977. Judge Rapp s t a t e d that
although it appears we a r e playing " musical unions", when the LJFW took over the
s t r i k e of MCOP, we s t i l l must prove that the agents for the UFW a r e also engaged
in the same i l l e g a l conduct that was charged against the MCOP agents. Accord-ingly,
to prove the new conduct engaged in by the UFW requires a new investigation
s t a r t i n g over from scratch, interviewing witnesses, and gathering a f f i d a v i t s and
e x h i b i t s , to now prove, with a preponderance of the evidence, that the United
Farm Workers is i n f a c t conducting i l l e g a l s t r i k e a c t i v i t y . Again, t h i s must
be somehow r e f l e c t e d in our records.
I do concur, however, t h a t i f an amended charge or complaint i s due t o l e g a l tech-n
i c a l i t i e s t h a t do not r e q u i r e t h e reopening of the e n t i r e case, or subsequental
work by e i t h e r the investigator or the general counsel, that they should not be
included as new charges or amendments to be counted as new cases. We have there- ( I
fore, developed a new system of documenting these cases so that for purposes of
our records and service measurements, they w i l l not be counted twice, whereas, a l l
other charges and t h e i r amendments, i f requiring new investigations, w i l l be
counted as separate cases for the record.
With respect to the Performance Audit ~ e p o r t ' s findings, I concur that dismissed
cases and informal investigations have not been adequately documented in the public
record. We have therefore i n i t i a t e d a new system for documenting dismissed cases a
and on what basis were they dismissed. We a r e a l s o i n i t i a t i n g a number of new
f i l e s so that charges, p e t i t i o n s f o r e l e c t i o n s , complaints, hearings, decisions,
and both formal and informal i n v e s t i g a t i v e reports w i l l be reduced to writing and
properly f i l e d . •
FINDING 1V:
THE AERB COULD DO MORE TO ENCOmGE PUBLIC INPUT AND PARTICIPATION AND
AERB MEMBERS SHOULD BE REPLACED OR REAPPOINTED WHEN THEIR TERMS EXPIRE,
FINDING IV, Issue I
The f i r s t i s s u e r a i s e d by Finding IV has presented the Board continuous
unresolved dilemmas.
I have continually encouraged the Board and my s t a f f to inform a g r i c u l t u r a l
employers, and agriculture employees of the goals, purposes, and functions of
t h e A g r i c u l t u r a l Employment Relations Act and i t s Board. On numerous occasions,
I have also spoken to groups that have invited me to present informative programs
concerning the Board and its r e l a t e d operations. I have also appeared on both
radio and t e l e v i s i o n t a l k shows to discuss the pros and cons of the Board, the
Act, and the recent c o n s t i t u t i o n a l lawsuit. F i n a l l y , a s i l l u s t r a t e d by our f i l e s
of newspaper clippings, I have often n o t i f i e d the press concerning a l l Board
related a c t i v i t y ,
It i s the opinion of the General Counsel t h a t it i s t r u e t h a t not enough of the
public i s aware of or understands the purposes of the AERA. Accordingly, I w i l l
endeavor to further inform the public i n accordance with the guidelines included
i n the Auditor ~ e n e r a l ' s report. However, we must remember that we may be faced
with the paradoxical s i t u a t i o n of distinguishing between public awareness and
s o l i c i t a t i o n .
FINDING IV, Issue 2
I can concur wholeheartedly that the Board members should have been
reappointed or replaced long ago. Hopefully, i f we are now allowed to function
for the f i r s t time without the burdens levied on us by t h e f e d e r a l lawsuit, we
w i l l add needed c r e d i b i l i t y to the AERA and closer a t t e n t i o n should then be paid
to the needs of the Board so t h a t they may carry out t h e i r duties, purposes, and
functions.
STATE OF ARIZONA
AGRICULTURAL EMPLOYMENT RELATIONS BOAKD
PUBLIC DOCKET LOG
CHARGES AGAINST EPPLOYERS
H
i
LOCATION '
$' U~ CL
I I
I I
,,
# I
I f
I I
I I
DATE
7- 30- 19
7- 30- 79
8- 7- 79
8- 7- 79
J - 7- 7 4.
g- 7- 7r
8- 3/- 79
8- 3/- 7 9
CASE KO.
c/- 7- 79
@ A- 7- 7 9
Q 3 - V - 79
@ L/_ 3- 79
( 25- R- 79
Q6 - 8- 79
@ 7- f- 74
63- 6- 74
RESULTS
u," njhdaau. n & JC t-rern
Gmrr~ ncnr 8- 23- 74
NmIE OF CHARGED PARTY
H7e Wow's P o m p ) /
70/ M/ / hd7 Y'&, Vu~ nrt
G+ s Puo& co LL.
Co. 17, S 1 r ) e r A / 7
/ u k a s o u ~ ; h , Sue.
/ O ~ + , / E R U E , ki/ hna
I / L c k a ~ ~ o ~ r * cZl qe, c .
v u ~ SnO ; , = , / , i e ~
Senf'n; Ac/ runo, T*' c.
PO BOX 5450, Y u t n c ~
& c s f?? od& ce
17,
%;/ w' /?= no, W.
CHARGING PARTY
@ A/)~ PC5 n 05 .
I; r, depmd/ cr7 ks
I 1
I I
#,
I (
A-/ eja n d r ~ , / C / l n e ~ u e ~
& c h ~ ~& dzG fl
/? bro/, n, n GeGn
t- fe r e dl>
STATE OF ARIZONA
AGRICULTURAL EMPLOYMENT RELATIONS BOARD
PUBLIC DOCKET LOG
PETITIONS FOR CERTIFICATION OF ELECTION - LABOR ORGANIZATIONS
DATE
7- 36- 79
7- 34- 77
8- J/- 7 9
f - 3 6 - 7 9
I .1
NAME OF CHARGED PARTY
~ e n t . ~&.~@ r; ru na, IWC.
PO Bar 5 4 ~ 0 , Vu m a
' J u ~ n s c , v , H; , Tnc.
/ oH* * A- Z f l u € , '/ urn%
& ~ C X T Seed &~ H, Q& AJ/
, a./ z , Somcr+ m
me Woods e m p o ) /
7 o r ~ . / ~ ~ S f , V u m a
I
CASE NO.
eE /- 7- 79
&? a- 7- 79
3 - 3- 7
CE4- 8- 79
CHARGING PARTY
Q9vhpc51 YJOS
~,, dedp /&~+ e s
/ I
11
d d
LOCATION
YU / h L
1 I
I t
/ I
RESULTS
U n ~ a n- 27
B m y u r y - R.
u n l o b l - 17
o o ~ n p a n y 3
4ilallenSc d 5
APPENDIX I1
CMJPZSINOS INDEPZNDIZNTSS
148% Main Street
P. 0. Box 4- 44
Somerton, Arizona 85350
( 602) 627- 8691
August 27, 1979
Arizona Employment Relation Board
1937 E z s t Jefferson, Building A
Phoenix, Arizona 85007
D e a r S i r :
This is to inforn you of our intentions for the luture
of our office. The CXdPESINOS I?? DETXNDEHTXS are i n the m i s t
of f i l i ~ gmo re unfair labor charges and petitions for elections
i n the Yma area, as long as the Soard remains t o work as
e f f i c i e n t and prompt as it has been doing. We f e e l obligated
to inform you of the necessity to open an office i n Yma, Arizoxa,
By you establishing this office, we feel that t h e r i g h t s of tine
workers, as residents of the s t a t e , w i l l be protc? cted to the
maxim- of tne law.
D Our intentions are t o start org= izing i n iY'lilc~> xP, !! arma,
and Phoenix Area; but our organizing cormittee feels t h a t in
order f o r the Board to protect the workers it mst be % vlnere % he
work Torce is at ! ! !
The following is a list of the reasons ivhy t h i s office is
necessary:
1. To establish'confidence bztween the s t a t e ,
agency, and workers.
2. More convenient f o r a l l parties concerned.
( Workers, Union and compan- y )
3. Efficiency and prom~ tnsss.
4. The protection of the rig- hts and, imra~ diate
of the workers.
These are only a Tew, but limited reasons why the Baard
must establish offices i n Yuna, Wilcox, 2nd TICIx- a P- rea, and
the ? i> hoer? ix Area. Your office a t the present t h e is doing
an extraordinary job under the conditions LTLt~ he distm- ce
from v~ hich we are.
I would appreciate an immediate answzr.
Sincerely,
0s IrJDzpzilDIzNTES
APPENDIX I11
I
APPENDIX 111, con ' t .
APPENDIX N
APPENDIX V_
B i l l Gibney and I have been friends for almost 5 years.
I) Because of our friendship, h i s representing me i n a personal
injury lawsuit came about. During the pending t r i a l B i l l and I
met several times to discuss certain information. Our mee'tings
took place a t his mother's residence in Phoenix or a t his own home
I) during afternoons or evening hours. It was clear to me a t t h a t time
t h a t B i l l ' s State job was h i s f i r s t p r i o r i t y and his private p r a c t i c e
only a side l i n e . B i l l ' s partner Michael Beers handled the research
and some paperwork f o r t h i s l i t i g a t i o n .
8
Ce: ? zrfwr2mce A- udit of the . simna
!@ ic- ittr a1 li~ m_ plfi;?!: ent i: elztions
Board
To -: horn It I'ay Concern:
Ic rqy o;> inion, the staff of z c c r e t a y md co~ mssl % re Scre min5x. m for
er~~ ployeeisn t i r x of need. It 2ep, re= s t::~ tt he a d i t o r .;- e. n e r d f s CZfice investigated
t u t i c ~ dan d the 30ard ~ 12, si nopwative. I believe that since the l ~ wa~ s diec lxed
const, ituticnal by t;? e Enited States Supreme Court, that thert? havr? hsein several czses
involving the law, md it ap; ears th; t thzre ? rill be ccn~ ider~~ b1rf. ioyr e, I siisa; ree
l& th the seccnol pmt of tlis Findin; ill that a forurn ~ ras 2st2. blishad but not used by
t> e mi3ns, and :. rhen the lav :: ic., s used by xsmqenent or lz'aor, I believe it operated
ef f i cisntly,
Concerning Findin;: 13, 1 have no con~~ ent.
D FI; IDI: TS I11
Concerning Finrlilg 111, this i s tin ap~ nrent~ : ll;- gationt kat the 3oasd1s
a c t i v i t i e s ? Jare padded. If this refers to th:: unfair labor ;, racticss filed d~ uring
D the " green onion strike," Judge ? a;,> ordereii that dl charjes be dropped jrid nc: i
charges be f i l e d .. in& the XCCF turned t h e i r s t r i k e over t o the United Farm Ijorkers.
F113117S rv
Concarni ,: Fi~ ciki, IV, never Iiavirg peviously served on my State Eoz. rd,
I 232 norqualified Co i t a t e ho~: rmch yu5l. icit:- i ? o w l s! ici? ld seek. ry opifiien,
- 6 t h %!-? ir:-, i on the I. aolss, L!;~ Ts of tll3 l a w rihox~ d. s> elr the 20- rd. I , onft E? ii:: vt3
- St is '; he ' oardfs duty to . eel.: : msiness. I :; hole:.~ catedly hgree tfia" i's' 13 ; o, u. ci
1~ orr33erss hould he reyl-~. cedo r reap~: oi~ tsd:: h en i;: leir terms expirs. Tc $ he best
of rr; y knqwledge, ow Shdrnan :? as ii'ic nmerous zttea7ts to have the : oorrnors re-place
o? rea. ppoint ir, eriiaera ta t h i s B0a; r. d as their terns expired. I Ice1 that the
vmioils ' 2- overnors ' 1~ v2band er~ elicti n their ct-~ tta~ th e i3ozxd i- embers to the
citizens of t h i s State i n this regard.
in swmarizing :; y foslin;;, I wish to point out that the 3o= d, unfortrr-nately,
has had ver: J poor a d i a y.~ bli. eiky 1-€ cent%-. i: t:? fbt? rs of t? is 3 0 ~ s1pe nt a
g- ezt deal ~ f time 1:; orkin,- or, a d : citing rrlles & nd resulations coverin2 this ig. e:. r.
I personzlly f e e l tkzt 3; aci; rc; lhr il2. s devoted a ccnsiderzble . mount of t h o - ~ hat d
tirr, e to t! is 3oard. I f e e l that our i3ot; rdts actions, aYld especial& our Chxirax,
have : een frugel i n t5e s? en", n2 of Stat2 ~ nonies. . i.. helped persusde zeverd ~ i. ieliibers
of the 3oard no; t o resign Gurin; this past year beczusa I f e l t it 1~ 3s their du'; y
to stay in their ? ositions lati1 the Scqreme Cowt decided on the c ~ > n s t 6 i t c t i o n a l i t ~ ~
of the lav,
APPENDIX I
SEASONALITY OF COMPLAINTS
( Occurrence per Month)
APPENDIX I
Month
January
February
March
April
May
June
July
August
SEASONALITY OF COMPLAINTS*
( Occurrence per Month)
September 0 0 0 1 0 0 0 0 0 1
October 0 0 0 0 0 0 8 0 8 0
November 0 0 0 0 0 0 0 0 0 0
December - 0 - 0 - O 0 - 0 0 - 10 - 4 - 10 5
Total Complaints - 8 - 7 - 1 - 7 - 2 2 - 24 - 4 - 35 - 18
-- 5 3
* Complaints documented per Board's logbook
( A ) Charge f i l e d by grower
( B) Charge f i l e d by l a b o r e r
APPENDIX I1
MEMORANDUM FROM LEGISLATIVE COUNCIL
CONCERNING USE OF OFFICE PERSONNEL,
EQUIPMENT AND SUPPLIES FOR PERSONAL USE
M E M O
May 10, 1979
TO: Douzlss R. Norton, Auditor General
FROS1: Arizona Legislative Council
RE Rcquest f o r Research and Statutory Interpretation ( 0- 79- 38)
This is in response t o a request submitted on your behalf by Gerald A. Silva in a
memo dated Rlay 4, 1979.
QUESTIONS PXESENTED:
1. Are the following circumstances in violation of state law, and if so, what
statutes apply? How significant is this as evidence?
@ a. Using office personnel services for private business ( i. e., answering service,
typing, correspondence provided by secretary employed by the state during normal
business hours of 8: 00 t o 5: 00)?
b. Using office equipment for private business ( i. e., typewriter and photocopier)?
c. Using office supplies for private business ( i- e., paper, miscellaneous)?
d. Using mailing address of Board's Office as private business correspondence
address?
0 2. How f a r c a n we, as performance auditors and employees of the Auditor
General's Office, investigate possible acts of impropriety? Can we obtain, copy or
confiscate materials which we observe at a s t a t e agency in the normal course of the
audit, even though the materials a r e of a private law p r a c t i c e ? For example, a secretary
employed by a s t a t e agency is finalizing ( typing, etc.) a private law case t h a t is open and
visible to the auditor during normal working hours in a s t a t e agency. Are such documents
0 open to access by us as performance auditors? Are such documents public documents?
3. Are any documents of a private business nature, whether prepared by a s t a t e
employee or not, contained in a desk owned by the s t a t e and located in a s t a t e agency,
open to examination by performance auditors? Are these documents more confidential in
nature if they relate to a law practice as opposed to professions or business? e
4. In general, what documents located in a s t a t e agency a r e open t o perusal by
performance auditors?
I) 1. There is no specific s t a t e s t a t u t e prohibiting an employee of a s t a t e agency
from [) sing s t a t e resources t o promote personal gain. However, we must conclude that the
fact s i t l ~ a t i o n sd escribed in paragraph I, items ( a), ( b) and ( c) appear to be violative . of
s t a t e laws relating to theft ( Title 13, chapter 18, Arizona Revised Statutes). Arizona
Revised Statutes section 13- 1802 provides, in relevant part:
A. A person commits theft if, without lawful authority,
such person knowingly:
1. Controls property of another with the intent to
deprive him of such property; or
2. Converts for an unauthorized term or use services or
property of another entrusted to the defendant or placed in
the defendant's possession for a limited, authorized term or
use; or
Relevant definitions are prescribed in Arizona Revised Statutes section 13- 1801,
and include:
...
1. " Control" or " exercise controlf1 means to act so as to
exclude others from using their property except on the
defendant's own terms.
2. " Deprive" means to withhold the property interest of
another either permanently or for so long a time period that a
substantial portion of its economic value or usefulness or
enjoyment is lost, or to withhold it with the intent t o restore
it only upon payment of reward or other compensation or to
transfer or dispose of it so that it is unlikely to be recovered.
. . .
6. " Property of another" means property in which any
person other than the defendant has an interest which the
defendant is not privileged to infringe, including property in
which the defendant also has an interest, notwithstanding the
fact that the other person might be precluded from civil
recovery because the property was used in an unlawful
transaction or was subject to forfeiture as contraband.
Property in possession of the defendant is not deemed property
of another person who has only a security interest in such
property, even if legal title is in the creditor pursuant to a
security agreement.
7. " Services" includes labor, professional service,
transportation, telephone, gas or electricity services,
accornmodation in hotels, restaurants, leased premises or
elsewhere, admission t o exhibitions and use of vehicles or
other movable property.
The term " person", as defined in Arizona Revised Statutes section 13- 105,
paragraph 21, includes a government or governmental authority. Paragraph 27 of the
same statute defines " property" as meaning anything of value, tangible or intangible. We
believe that the use of s t a t e office personnel services, office equipment and office
supplies for private business constitutes the crime of theft as prescribed by the statutes
cited above. No lawful authority exists for permitting a s t a t e employee to use such items
or services for private business. Equipment and supplies clearly a r e s t a t e property which
an employee is not privileged to infringe. Personnel services of the type described in this
request are services as dzfined in Arizona Revised Statutes section 13- 1801, paragraph 7.
Conversion of those services is clearly prohibited by Arizona Revised Statutes section
13- 1502, subsection A, paragraph 2.
While the use of a s t a t e agency mailing address as a private business
correspondence address certainly is evidence that s t a t e facilities possibly are being used
for private business, it is less clear that this action constitutes theft. Property, as
defined in Arizona Revised Statutes section 13- 105, paragraph 27, can be an intangible,
such as an address, but i t must also have a value. We are unable to determine from the
facts presented whether a court would find that the use of the address constitutes theft.
The f a c t t h a t a person is employed at a certain address may enable him to " infringe on
that property" ( see Arizona Revised Statutes section 13- 1801, paragraph 6). While the use
of a s t a t e address for private business correspondence may not neccessarily involve a
removal of anything of value from the s t a t e , t h e r e can be no doubt that innumerable
abuses could arise from such behavior. As an example, persons might justifiably be misled
into believing that the s t a t e or officials of it sanction, support or approve of the private
business involved. Further it is obvious t h a t t h e s t a t e departments would lose valuable
personnel time if s t a t e telephone service, s t a t e offices and state employees were directly
involved in the conduct of a private business. Additionally if a regulated profession or
occupation is involved the ethical impropriety of such behavior should be manifest. Hence
it is unlikely that a state department could allow the regular use of its mailing addresses
by officers or employees engaged in conducting a private business without being a party t o
misrepresentation and a victim of the misuse of its property and personnel services for
private gain.
Arizona Revised Statutes section 41- 770, subsection A, paragraph 15 is applicable
when an employee of a s t a t e agency uses s t a t e resources to promote personal gain. This
statute provides that misuse or unauthorized use of s t a t e property constitutes cause for
discipline or dismissal of an employee in state service.
Additionally, the Arizona Constitution, article IX, section 7 provides t h a t t h e state
shall not ever give or loan its credit or make any donation or grant to any individual,
association or corporation. An argument can be made that this section is applicable if
state personnel services, equipment and supplies are used to aid an individual in his
private business without charge. ,
The evidentiary significance of the fact situations described in paragraph 1, items
( a) through ( d) can be determined only by a court. All relevant evidence is generally
admissible ( 17A Arizona Revised Statutes Rules of Evid., rule 402). " Relevant evidence"
is defined as evidence having any tendency to make the existence of any fact that is of
consequence to the determination of an action more probable or less probable than it
would be without the evidence ( 17A Arizona Revised Statutes Rules of Evid., rule 401). I t
would appear that the circumstances described in the request could be characterized by a
court as relevant evidence.
LVithout specific knowledge as to terms of the contractual circumstances relating
to the provision of personal services it is not possible to address the issue of the propriety
of a s t a t e officer o r employee using working hours to engage in activity unrelated to the
work or to actually direct or allow the use of such work time in unrelated activity.
In the absence o f a specific constitutional or s t a t u t o r y prohibition such as that
applied to justices and judges in ,4rizona Constitution, a r t i c l e VI, section 28, persons who
hold public office or employment may be otherwise gainfully employed to t h e e x t e n t t h a t
such is not in conflict with t h e i r legal duty for such office or employment. The issue
becomes one of duty and one's ability t o perform it. Under the English common law a
person who accepted an incompatible office or employment would be found t o have
vacated the previous o f f i c e o r employment.
Questions 2, 3 and 4. The issues raised by questions 2, 3 and 4 are difficult to
resolve and are likely t o arise on a continual basis* u n t i l decided by a court o r t h e
attorney general. The p e r t i n e n t s t a t u t o r y provisions are Arizona Revised Statutes
sections 41- 1279, 41- 1279.03, 41- 1279.04 and 41- 1279.05. Section 41- 1279.03, subsection
A, paragraph 2 provides t h a t the Auditor General shall:
/ 7erform special audits and r e l a t e d assignments as designated
by the committee, and shall conduct program audits,
performance audits, special audits and investigations of any
state agency . . .
Section 41- 1279, paragraph 2, defines " investigation" as meaning:
an inquiry into specified acts or allegations of impropriety,
malfeasance or nonfeasance in the obligation, expenditure,
receipt or use o f public funds of this state or into specified
financial transactions or practices which may involve such
impropriety, malfeasance or nonfeasance.
Section 41- 1279, paragraph 3, defines " performance audit" as meaning:
a post audit which determines with regard t o the purpose,
functions and duties of the audited agency both of the
following:
( a) Whether the audited agency i s managing or utilizing
its resources, including public funds o f t h i s s t a t e , personnel,
property, equipment and space in an economical and efficient
manner.
( b) Causes of inefficiencies or uneconomical practices,
including inadequacies in management information systems,
internal and administrative procedures, organizational
structure, use of resources, allocation of personnel, purchasing
policies and equipment.
* For example, see an e a r l i e r merno ( 0- 79- 29) issued by this office on April 27, 1979.
Section 41- 1279.04 provides that:
-/ v h e Auditor General shall have access to, and authority to
examine any and all books, accounts, reports, vouchers,
correspondence files and other records, bank accounts, money
and other property of any s t a t e agency . . . I t shall b e t h e duty
of any o f f i c e r o r employee of any such agency having such
records under his control, to permit access to, and
examination thereof, upon the requzst of the Auditor General
or his authorized representative.
Section 41- 1279.05 provides that:
If the auditor general o r any member of his staff or
other employee knowingly divulges or makes known in any
manner not permitted by law, any particulars of any record,
document, or information the disclosure of which is restricted
by law, he is guilty of a class 5 felony.
Read together, t h e s e s t a t u t e s appear to stand for the proposition t h a t t h e Auditor
General is authorized to examine any records of any state agency which are necessary t o
enable him to carry out t h e duties imposed on him by Arizona Revised Statutes section
D 41- 1279.03 ( see Op. Atty. Gen. No. 72- 40- L ( 1972)). Examinations can even extend to
t h o s e documents t h a t a r e considered confidential. By placing restrictions on t h e
disclosure of certain information in Arizona Revised Statutes section 41- 1279.05, the
Legislature has clearly shown its intent t h a t t h e Auditor General " be granted a u t h o r i t y t o
inspect records otherwise made confidential by various provisions of law." Id. In other
words, the Auditor General can inspect confidential documents so long as t h e i r c o n t e n t is
not publicly disclosed.
The Attorney General has construed Arizona Revised Statutes section 41- 1279.04
t o apply only t o " reports and records generated by state employees in t h e performance of
their official duties" ( Op. Atty. Gen. No. 72- 10 ( 1972)). However, while private business
records prepared by state employees on state premises using state supplies and on state
0 time may not have been executed in the " performance of official duties", Id., a reasonable
argument can be made supporting the proposition t h a t for an investigation and