*1 Sept. No. 31359. 1981.] [L.A. RANCH, Petitioner,
HIGHLAND BOARD, Respondent; AGRICULTURAL LABOR RELATIONS AMERICA, AFL-CIO, FARM Real Party UNITED WORKERS OF in Interest.
Counsel Stoll, Barsamian, Dressier, & Laws Quesenbery, P. Roy,
Robert Stoll, Dressier, Stoll, Marion I. & M. Quesenbery, Charley Hersh *3 Pieter Van Leuven for Petitioner. Quesenbery and Medeiros, Stone, Lake, Edwin F. Lowry M. Daniel G. Ellen Manuel A. Leon for Jorge Respondent. Mendelson, Littler, Fastiff II, Carrol and T. Robert K. George Tichy & as on behalf of Respondent. Amici Curiae Tichy Alcala, Garcia, Carlos M. Lopez, A. Marco E. Dianna Daniel Lyons, Flores, Chavez, Fernandez, J. S. G. Ellen Francis E. Carmen Federico Carder, Cohen, Nathan, H. Tom Sanford N. William Jerome Eggers, in for Real Interest. Dalzell Ellen Greenstone Party Opinion In this Ranch
TOBRINER, (Highland), C. J. case Highland Acting Agricul- review of a final order seeks agricultural employer, (ALRB Board), finding Highland guilty Labor Relations Board or tural a out of a series of incidents of number of unfair labor practices arising in after the United Farm shortly occurred the latter half which (UFW America, union) won a apparently AFL-CIO or had Workers held em- among Highland’s decisive in election representation victory a number of the ALRB’s ployees. Although Highland objected raised by High- the most issue findings, prominent unfair labor practice Highland the ALRB’s determination that land propriety concerns provide perti- in either to practice failing was an unfair labor guilty period time during to or to nent information formal and the ALRB’s the union’s election apparent victory between the union. certification of decision, a series of federal au- the ALRB relied upon its reaching that, Labor Relations Act under the National
thorities which hold its in unilateral ac- (NLRA), undertaking acts “at peril” an employer during of its employees conditions working tion altering decisions, an these federal challenge. election Under of an pendency in failing of an unfair be found guilty employer may if, conditions such a change working prior effecting sustained. The ultimately victory the union’s the instant election had com- Highland in concluding ALRB followed these decisions in the instant case. mitted an unfair labor practice however, which federal precedents upon argues, Highland La- Agricultural not be under controlling the ALRB relied should (ALRA) subdi- of Labor Code section light bor Relations Act (f), ALRA which has no in the counterpart vision provision (f) that section prohib- NLRA.1 maintains union that is not formally with a from asserts that Accordingly, Highland certified under circumstances. la- the ALRB could not find that it had committed an unfair properly *4 in with the union to the union’s prior bor to failing actual certification. of section proposed interpretation
The ALRB rejected Highland’s under- (f) purpose with the incompatible legislative subdivision section, provi- had enacted that Legislature lying finding “sweetheart an from into a simply preclude employer entering sion its employees with a union that had not been selected arrangement” by of this the Board conclud- purpose, in a election. representation light an interpreted prohibit ed that the section could not properly with an victorious union apparently during from bargaining of an election pendency challenge. below, ALRB For the discussed we have concluded that the reasons failure to inform or responsible held its properly Highland case, narrower upon with the union in this but we base our conclusion relied the ALRB. As we shall grounds upon by explain, than those the instant we have concluded that view of the facts of particular the NLRA—an employer we need not determine whether—as under action under the ALRA acts “at its whenever takes unilateral peril” an during pendency conditions altering working reasonableness and faith good election without to the challenge, regard as to the of the union’s election validity of the doubts victory. see, to inform or bar-
As we in the failed present Highland shall case no time at which could entertain Highland with the union at a gain indicated, statutory otherwise all references are to the Labor Code. 1Unless union would be certified as employees’ reasonable doubt because the imminent certification of representative, circumstances, we con- a ministerial Under these union was act. simply permit that it defeat the of the act purposes clude would clearly (f) as a of section provisions invoke the with the over the im- to immunize its failure shield we employment Accordingly, the workers’ status. pending changes case. the ALRB’s unfair labor uphold practice finding below. proceedings 1. facts op- in farming was many prior engaged
For years Marine from the United States at ranch leased erations a 647-acre tomatoes, Highland grew at Pendleton in Corps Camp Orange County. ranch, cauliflower, operated corn at the cabbage, cucumbers and laborers who premises. Many agricultural shed on packing and run camp in a owned worked at the ranch lived rent-free Highland. began organizational the UFW
Some time in spring the union’s As the months employees. passed, drive among Highland’s *5 1977, with and, Highland, June early increased campaign activity new of rules a set work the union’s announced activity, of knowledge There- created some new benefits. benefits and which increased existing continued unabated after, activity campaign the union’s organizational certification, 21, 1977, trig- a petition UFW filed and on the July to the election speedy Pursuant process. the ALRA’s election gering act, an election be ALRB directed that the the prescribed procedures by 28, July held on 1977. the election, to deny officers sought the Highland’s
On the of day When the officials public ranch. access to the ALRB’s election officials election, the had Highland the lawful conduct right insisted on their At subse- workers. the of its in the presence officials arrested agency engaged found that Highland the Board ALRB quent proceedings, misconduct; review of the not sought day Highland election serious to that misconduct. findings relating unfair labor held was interference, election representation the Despite Highland’s and, election, in the the UFW 28. union contested on No other July choice directive, were a ballot given workers statutory pursuant 1156.3, (a).) subd. (§ labor organization.” and “no between UFW UFW, of election, were in favor in the Of 203 ballots cast union, challenges. unresolved in favor of and 2 resulted were no 1156.3, (d) are filed within section if no objections Under the elec- “the board shall certify of a election days representation five however, filed after election Highland In this four days tion.” set aside on two to have the election seeking the ALRB petition First, jurisdiction that the ALRB lacked grounds. argued Highland leased from property the election the ranch was located on hold because Second, Board maintained that the the federal government. fair with a interfering had committed acts of misconduct agents by election. had 2, 1977, three challenges
On November months after the election filed, dismiss- the ALRB issued an order been executive of secretary declarations, even on the ing challenges ground supporting true, if did not facts would grounds deny set forth which constitute 20365, (See Code, 8, tit. certification the union. Cal. Admin. § R. Co. Labor Relations (c), (e), (h); Agricultural J. Norton subds. 710, Bd. (1979) 26 Cal.Rptr. 1306].) Cal.3d 12-18 P.2d had ALRB Under the Board’s" obtain regulations, Highland right dismissal objections filing review of executive secretary’s for review within five service the dismissal. request days receiving (Cal. (h); (a).) Code, (e), subds. subd. Admin. tit. §§ however, did not seek review of the dismissal its election Highland, (Cal. Code, thereafter, tit. as a matter of course Admin. challenges, 20380),2 29, 1977, certified the election on November Board § representative Highland’s UFW as the exclusive agricultural employees. *6 outset, in this case concerns at the issue principal legal
As noted the actions of Highland which should attach certain consequences the 28, 1977, on and the election period July the between the during of on November 1977. official certification the UFW Board’s election, two months after the September In late less than president Company, separate contacted Deardoff-Jackson Highland’s secretary “The shall issue provides part: in relevant executive 2Section certifi pursuant part: this ... a secret ballot election conducted cation the election after objec upon (b) objections to of the election are filed ... resolution If the conduct requests expiration period the pursuant to Section 20365 ... tions for for after ” (Italics added.) review under Section 20393 .... wheth- inquire in farming operations, corporation engaged California farming the Highland interested in purchasing er Deardoff-Jackson was mid-No- its interest and indicated Dear doff-Jackson operation. 12 substantive had had some and Deardoff-Jackson vember Highland time, Deardoff-Jackson the sale of the ranch. By discussions about Ranch, (San Clemente), limited part- Ltd. had formed San Clemente and partner, purchase with Deardoff-Jackson general nership and San between Highland the agreement the ranch. Under operate Clémente, assignment Highland’s obtained the full San Clemente facilities, ranch Highland’s all of virtually land lease and purchased equipment. and machinery of the ranch and was to take possession San Clemente
Originally, harvest at was Highland 1977. The tomato facilities on December however, ad- and the parties agreed earlier than completed expected, 1, 1977. High- takeover to December vance the date of San Clemente’s the sale on Novem- the final escrow papers land’s president signed 29, 1977, the ALRB certified UFW formally ber the same day The sale of the ranch exclusive bargaining representative. as Highland’s Clemente’s officers signed when San day was completed following papers. the escrow November, late end of September from
Throughout period ranch, failed to Highland pro- selling while it was in the process impend- whatsoever concerning vide the UFW with information of the sale on November 29 first learned apparently sale. UFW ing Highland strenuous efforts to contact and at that time the union made employees. the sale upon Highland to discuss the effects of at- the union and Highland’s A was between finally arranged meeting time, all of its em- had given December 2. By on torneys closed notices, and had already effective November ployees layoff from resided at the camp the workers who had ousting its labor camp, presented the UFW meeting, At the December their homes. ques- numerous posed for Information” “Request union’s standard to, of, relationship identity Highland’s tions regarding demands: addition, three specific the union presented buyer. *7 who of the workers the rehiring of the labor camp pending reopening who had (2) for those employees severance camp; pay lived in months; (3) speci- and three previous over the Highland worked for Jr., After Fund. Luther King, the union’s Martin fied contribution to demands, and the first two rejected attorneys conferring, Highland’s did Highland under submission. take the third would they stated that and, re- further despite demand the third respond to subsequently the information union, never provided Highland quests for Information. Request standard the union’s requested by filed several un- ranch, union had sale of Prior to Highland’s numerous objecting Highland charges against fair labor practice em- against prounion taken allegedly had Highland actions disciplinary 7, 1977, the November of 1977. On summer and fall in the ployees ini- charges—filed investigating ALRB’s counsel—after general on the basis complaint against Highland unfair labor practice tial the ranch the sale of completed After Highland some of these charges. the effects of the sale on over bargaining the union or notifying without complaint charge counsel amended its employees, general unfair labor practices. these additional actions as administrative both the subsequent proceedings, In the administrative conduct failing and the ALRB found that Highland’s law officer practice. the union constituted an unfair labor and with notify violation, direct- the ALRB issued an order To remedy over the effects of the sale on with the UFW ing Highland authorities, the ALRB its in line with the federal employees; applicable with a “limited de- backpay” remedy order accompanied bargaining In this requirement. effectuate signed help both the of the unfair labor proceeding, Highland challenges validity imposed. the nature of the We discuss each practice remedy finding of these issues in turn.
2. ALRB was guilty properly found or to notify failing
unfair the union over its decision to sell the ranch. effects of noted, the ALRA was modeled largely As our court has frequently (See, v. Ag of the NLRA. Vista Verde Farms provisions e.g., upon 307, (1981) Cal.3d Cal. ricultural Labor Bd. Relations Farms v. Labor Rela Agricultural 625 P.2d Rptr. 263]; Belridge (1978) 580 P.2d Cal.Rptr. tions Bd. 21 Cal.3d 556 [147 our court principles As a under traditional 665].) consequence, legal would, course, inter judicial look to established administrative the appropriate of the federal act indicants of pretations persuasive (See, v. Chavez e.g., Englund of the state interpretation legislation. Petri 457]; 504 P.2d Cal.Rptr. 8 Cal.3d 589-590 [105 *8 856
Cleaners, etc., (1960) 53 v. Local No. 88 Inc. Automobile Employees, 349 Cal.Rptr. 76].) enacting Cal.2d P.2d moreover, ALRA, can- essence codified this familiar Legislature ALRB, respect on providing construction statutory in section 1148 that shall follow applicable explicitly [ALRB] “[t]he Act, Accord- of the National Labor Relations amended.” precedents conduct, the ALRB evaluating the ingly, propriety Highland’s precedents. looked to the NLRA quite naturally initially governing into two play As the ALRB the facts this case bring recognized, First, estab the federal precedents lines of federal separate authority. lish that while an is not employer normally obligated the pe towards a collective comprehensive bargaining agreement during election are representation pending riod of time its challenges (see, (NLRB) Board Sund e.g., before the National Labor Relations (7th 1976) 538 Heat Inc. v. Cir. F.2d Transfer, strand N.L.R.B. con 1259), change is free the terms or employer unilaterally Rather, of time with impunity. ditions of employment during period with makes such changes the federal hold that when an employer cases opportunity the union without some giving out and notifying “at its peril” acts proposed changes, be heard on sustained, is subsequently and if the union’s election apparent victory an unfair labor practice be held to have committed may the employer such unilateral action. undertaking behind its well-established The NLRB has the rationale explained that, eco absent compelling “The held long rule as follows: Board so, at peril acts for doing nomic considerations peri employment during and conditions of in terms making changes final and the determina pending to an election are objections od that the effect of bypassing, have changes has not been made.... Such tion statutory repre status as the the union’s undermining undercutting, hold To issued. in the event certification sentative of the employees bar the union in on future to box allow an employer otherwise would policy changes positions by implementing gaining or determinative challenges when objections during period (Mike O'Connor Chevrolet are ....” pending election on other 1424-1425], grounds revd. L.R.R.M. N.L.R.B. 701 [85 Co., 684; see, Battery (8th Electric 1975) e.g., General Cir. F.2d 717-719; Prod., 1968) 400 (5th Cir. F.2d R. B. v. N. L. Cap. Dept. 1966) (5th Cir. Co. Whse. Storage B. & Duke Laney N. L. R. 859, 866.) F.2d
857
of this
the applicability
demonstrates
federal cases
A second line of
one,
which the “unilateral
as the present
to a
such
doctrine
is a
challenge
the election
during
change” implemented
a sale
through
jobs
unit employees’
terminate the bargaining
decision to
the federal cases
In this regard,
the business.
termination of
or other
with
to bargain
obligation
is under no
although
hold that
decision of whether or
managerial
the fundamental
making
the union in
(1965)
(see
Co.
Darlington
Workers v.
business
Textile
not to
out of
go
833-836,
827,
994]),
85 S.Ct.
L.Ed.2d
380 U.S.
269-274 [13
obligation
is still under an
the employer
decision is made
such a
“[o]nce
the union may
given
its decision so that
the union of
notify
whose
employees
employ
of the
rights
over
opportunity
decision....
Such bar
the managerial
will be altered by
ment status
on the displaced
‘effects’ of the decision
over the
gaining
seniority,
vacation
pay,
pay,
as severance
subjects
cover such
may
others,
importance
which are
necessarily
particular
pensions, among
(N.
R. B. v. Transmarine Naviga
L.
employees.”
and relevance to
933, 939;
(9th
1967)
Thermo
Cir.
380 F.2d
Cooper
tion Corporation
(2d
1967)
376 F.2d
688. See
L. R. B.
Cir.
meter
v. N.
Company
—
—,
(1981)
v. N.L.R.B.
U.S.
Corp.
also First National Maintenance
—
2573].)
101 S.Ct.
L.Ed.2d
[69
this
obligation
explicitly recognize
The federal authorities
operations applies
a decision to terminate
“effects” of
over the
election
pendency
is reached during
decision
when the employer’s
Co.,
Products
&
Const.
(See,
N.L.R.B. v. W. R. Grace
e.g.,
objections.
279, 282,
finding challenge does not ruling, Highland the ALRB’s objecting contends that the but instead federal precedents reading Board’s provisions light not be followed authorities should federal has no direct ALRA that (f), a section of the subdivision section the various em- 1153 enumerates Section in the NLRA. counterpart (f) ALRA, pro- and subdivision under unfair labor practices ployer an agricultural unfair labor practice be an vides that it shall with, bargaining collective or sign recognize, employer “[t]o pursuant not certified organization agreement (f) contends under provisions part.” Highland to the prior with the UFW in fact from *10 prohibited was have certification, thus it be found to and that cannot union’s formal bar- notice to or in unilateral without making changes acted improperly with union. the gaining section ALRB of proposed interpretation
The
rejected Highland’s
1153,
(f),
labor practice provi
that unfair
concluding
subdivision
to make unilateral
sion was never intended to authorize an
but
election and certification
in
conditions between an
changes working
an
from
entirely
purpose. Quoting
rather was enacted for an
different
decision,
six
be
ALRB
months
April 1977—nearly
earlier
rendered
at issue in this case—the ALRB observed
fore
incidents
[t]he
an
bargaining
prohibition against
recognizing
[or
with]
directed,
lim
arbitrary
not towards an
time
clearly
union is
uncertified
recognition
but towards preventing voluntary
on bargaining,
of
572
Chavez
8 Cal.3d
[(1972)]
The facts in
Englund
organizations.
two
unions pri-
favoritism toward one of
competing
[involving employer
a
are too much
adoption
procedures]
or to the
of secret ballot election
for us to con
to the enactment of
ALRA
part
leading
of
history
1153(f)
of
a
of freedom
choice
guarantee
sider
but
anything
of
secret ballot elections.
agricultural
through
machinery
not
an uncertified union does
with
prohibition against bargaining
a union that has been chosen
not
preclude bargaining
should
(Italics added.)
Fruit
(Kaplan's
ballot election.”
through
secret
Co.,
28,
7.)
(1977)
p.
&
3
No.
Accordingly,
Produce
Inc.
A.L.R.B.
1153,
(f)
case
could
ALRB concluded that
this
section
insulate it from responsibility
not
invoked
Highland
be
properly
to the union’s formal certification.
for its unilateral actions prior
1153,
section
sub-
the ALRB’s
of
challenges
interpretation
Highland
of the
(f),
construction
reject
agency’s
our court
urging
division
of the subdivision
interpretation
a literal
provision
adopt
and instead
with a union that
from
which would prohibit
In suggesting
under
circumstances.
certified
yet formally
was
fundamental
Highland ignores
prin-
two
strictly
reading,
literalistic
First,
significantly, High-
construction.
and most
of
ciples
statutory
“the
basic
which teaches that
precept
contravenes the
approach
land’s
effect to
give
statutes is to ascertain
of all
of
construction
object
of statutes for
analysis
...
In the
legislature.
intention of the
intent,
is to
had not so much as
regard
of finding legislative
purpose
as to
expressed
which
intent has been
exact
phraseology
in the enact
entire scheme embodied
scope
tenor and
general
not be sacrificed to
the law should
obvious
of
design
ments ....
[T]he
v. Fris
Angeles
Los
(County
such language.”
literal
interpretation
see,
Friends
526];
e.g.,
P.2d
(1942) 19 Cal.2d
bie
[122
(1972)
Cal.
8 Cal.3d
Mammoth v. Board
Supervisors
[104
Proration Zone No.
v. Raisin
Dickey
In the present with ALRB—drawing upon familiarity of the ALRA and the of the times” history “general understanding (f) —concluded that subdivision was adopted pur- section for the pose of from into a “sweetheart” prohibiting entering unions, with arrangement one of two or more and to make competing ALRA, NLRA, clear that under the unlike the an exclusive bargaining be on the basis a secret representative may designated only represen- election, tation and not of union authorization cards by presentation or other less any reliable method sanctioned under federal law.
The available legislative history supports the ALRB’s view of the general legislative purpose underlying (f). section subdivision the legislative hearings on the bills that were enacted ultimately as the ALRA, the proponents of the legislation repeatedly stressed that the act would “only allow one way and recognition that’s a through secret ballot election. We don’t allow recognitional strikes we don’t al- [and] ” low authorization cards as do under they the NLRA.... be- (Hearing fore Sen. (Third Ind. Rel. on Sess., Com. Sen. Bill No. Ex. May Sect, 1975) 51p. Bird, (testimony of Rose of Agriculture and Services cannot obtained con- ... sweetheart
Agency.).) “Recognition by tracts. It can be obtained the workers into the only by going voting union, of their choice or selecting any booth rejecting before on should choose.” Assem. Lab. Relations Com. they (Hearing 12, 1975) (remarks Bill Assem. No. 1533 (May p. Assemblyman Berman).) themselves contain no direct reference to sec
Although hearings (f) such, a law review article written contem tion professor with the of the ALRA a law who poraneously adoption as a law to the Agen served labor consultant Services Agricultural in the of the section in cy purpose act describes drafting terms that the ALRB’s interpretation. are consistent with generally Act The Labor Relations 1975—La (Levy, Esperanza Agricultural Law. 789- de el 15 Santa Clara Para Futuro California 790.) in the provision states: “One new contained ALRA article it an labor for an recognize, bargain makes unfair with, sign bargaining agreement organiza or collective *12 Act subdivision pursuant [citing tion not certified to the section Act, which in the (f)]. procedure This section ties with election which can achieve organization that the sole means a labor specifies by is to win a secret ballot elec representative certification as a bargaining the These thus prohibit voluntary tion conducted board. sections by on of an based authoriza organization by employer a labor recognition the labor the signed presented by organiza tion cards by employees The tion, decisions the NLRA. interpreting a practice permitted by that the best meth feeling certification reflects the procedure ALRA’s representative of a bargaining od for the choice determining employees’ (Fns. omitted.) (Ibid.) the ballot election.” via secret intent do the ALRB’s conclusion support These indicia of legislative (f) was to subdivision behind section purpose that the principal with a from employer dealing an employee by preventing protect rights se- the ALRB’s workers by through that has not been selected union an otherwise of employer rather than relieve process, cret election union. It not does with an employee-chosen applicable duty in this case follow, per- the ALRB’s decision however—as necessarily (f) no constraints places section subdivision suggests—that haps in every with a case union upon whatsoever from the polling victorious has emerged apparently which the union booth.
In establishing procedure objections a which to the initial through 1156.3, (c)), implicit- election result be voiced subd. ALRA may (§ that at least in some instances the initial of ly recognizes counting reasons, a ballots of not valid of may, variety represent expression the desires of em- protects affected workers. ALRA right to select between unions and also to choose not to be ployees competing 1152.) Hence, represented a union as well to be so by (§ as represented. when or an level at an that election are employer objections serious to cast doubt ini- sufficiently reasonable whether a union’s upon sustained, tial (f) will victory ultimately section subdivision bear may When the can that upon situation. establish faith, entertained a doubt to the sta- good representative reasonable as ALRB, tus of a that union has not been certified yet formally by (f) proscriptions section may preclude ruling acted peril” refusing “at its with a pre- sumptively victorious union an election during period challenge. (Cf. Bd., J. R. Co. Norton Lábor Relations Agricultural supra, 1, 30-35.) Cal.3d
In the however, instant Highland cannot claim that its properly failure to inform or bargain with union over the effects its deci sion to sell the ranch rested reasonable upon any such belief that would fact be certified its employees’ bargaining repre sentative. Even if we assume the election filed objections by Highland in the beginning August 1977 were not frivolous on their face and were not interposed to forestall its ob employer simply *13 union, ligation to with the mid-November when bargain by its decision to sell the ranch was established could firmly Highland not reasonably doubt that the would UFW be certified. seen, 2, 1977,
As we have on November the executive secretary ALRB dismissed election There- Highland’s objections groundless. after, did not the Highland ALRB to review the dismissal with- request in the the five-day period by authorized administrative Un- regulations. der the that review governing regulations, period once requesting by the ALRB had expired, the issuance of a formal certification of the (See union’s status representative became mere ministerial act. fn. ante.) mid-November could Consequently, by entertain no Highland reasonable doubt that the would in fact certified. circumstances,
Under these not Highland may we conclude that ex- its to cuse failure inform or with the union reference to bargain by rely properly cannot (f). employer as an Just
section to duty escape certification to absence of formal the upon bad in objections election filing it by has certification precluded when Bd., (cf. supra, Labor Relations v. Agricultural Co. faith J. R. Norton ab- 31-32, the 39), may upon so seize at 26 Cal.3d pp. no reasonable doubt entertain can sence of formal certification when will in election in a representative union which has prevailed that the in changes make unilateral be certified. To permit fact un- at a time would clearly such conditions of its working defeat, rather and would result of the election integrity dermine advance, employees’ of protecting the legislative purpose than (f). 1153, subdivision choice which underlies section ALRB case the of this we that on facts conclude Accordingly, practice labor in an unfair engaged held that had Highland properly refus- to sell ranch the union its decision notify refusing its on employees. of that decision over effects ing remedial backpay” a “limited imposed 3. ALRB properly NLRA applicable precedents. order sanctioned guilty found Highland the ALRB properly concluded that Having the propriety we must determine in this practice regard, an unfair labor order, High ALRB directed In its of the ALRB’s remedial order. its decision sell over the effects of land to with the UFW time, High that because Board concluded business. At the same present lack of and the changed position employees’ land’s order, a bargaining vis-a-vis power Highland, economic bargaining unfair labor alone, remedy would not adequately standing order the bargaining to effectuate in this case. order Accordingly, from its unfair profit would not help ensure with a “limited order accompanied the ALRB practice, traditionally imposed the NLRB back pay” requirement (See, Trans e.g., act. the federal violations under remedy comparable *14 (1968) L.R.R.M. 389 170 N.L.R.B. Navigation Corp. marine [67 Products, Co., 571 supra, R. Grace & Const. 1419]; N. L. R. B. v. W. 6.)3 279, 283 & fn. F.2d developed remedy with regard, provides: “In accord 3In the ALRB decision this (Transmarine Corporation, supra), Navigation type of violation by the NLRB for daily wages of No agricultural their Highland pay employees to its we will to order (1) 28, 1977, of this Decision until: the date days after the issuance
vember
from five
NLRB
or-
the rationale for this
remedial
fully explained
type
decision,
that,
der in its seminal Transmarine
“It is
observing:
apparent
about
as a result of the
unlawful failure to
[employer’s]
bargain
[the]
effects
its termination of
were denied
employment],
[employees]
[of
to
their .. .
at a time
opportunity
bargain through
representative
such
prior to
shutdown when
would have been
bargaining
meaning-
ful in
on
whose
are
termina-
easing
hardship
employees
jobs
being
ted....
Under
circumstances of this case ...
it is
to
impossible
[1Í]
reestablish a situation
equivalent
prevailed
that which would have
had the [employer] more
fulfilled its
timely
statutory bargaining obliga-
tion.
we
fashioning
appropriate remedy,
must
guided by
principle that the
rather than the victims of the
wrongdoer,
wrongdoing,
conduct,
should bear the
of his
consequences
unlawful
and that
remedy
(170
should ‘be
to the situation
adapted
that calls for redress.’”
at p.
(1938)
N.L.R.B.
Labor
(quoting
Board v.
Co.
Mackay
1381, 1391,
U.S.
L.Ed.
close the or the date the UFW to a bona fide im- UFW, passe; (3) or the failure request days within five after issuance of this negotiations Decision or to commence days Highland’s within five after notice bargain; of its desire to or subsequent failure of the UFW to good faith. In no event shall pay period the back period exceed the of time necessary employees and, for the employment obtain alternative those who were other, evicted from the camp, comparable obtain housing.” *15 Transmarine circumstances, NLRB determined in these
Under effectuate to bargaining meaningful order assure “[i]n over the Act, order to our accompany we shall purposes designed requirement limited backpay with a effects of the shutdown as a result of for losses suffered whole the employees both make a situation in manner practicable recreate in some violation and to economic devoid of totally is not position the parties’ bargaining which (Ibid.) for consequences [employer].” adopted in Transmarine that the NLRB
The limited backpay remedy
each ter-
upon
pay
a
requirement
imposed
prospective
former wages
to the employee’s
a
sum equal
minated employee
daily
pro-
additionally
The order
process.
the mandated
during
would terminate
backpay” obligation
“limited
vided that the employer’s
on the issues
(1)
subject
agreement
reached
parties
as soon as
(3) the
or
a bona fide
(2)
impasse
bargained
the parties
bargaining,
NLRB also
placed
Finally,
faith.
good
failed to
under
obligations
potential monetary
ceiling
on the
absolute
daily
receive
order,
employee
event should any
that in no
specifying
taken the em-
it had
period
time
exceeding
period
payments
after his termination.4
employment
to obtain alternative
ployee
1968,
vir
imposed
the NLRB has
decision in
Since the Transmarine
numerous cases in
remedial orders in
identical
limited
tually
backpay
effects of its
union over the
failed to
which an employer
(1978)
(see,
B.
J.
Enterprises
of business
e.g.,
decision
out
go
(1974)
Plant
1433]; Van's Packing
L.R.R.M.
N.L.R.B.
[99
Schools, supra,
West Coast
1581];
L.R.R.M.
ALRB’s
*16
In
of the
ALRA
light
we conclude that
governing
provisions,
ALRB acted within its
federal
authority
following
precedents.
these
1160.3,
Section
ALRA
section of the
forth the remedial au-
setting
ALRB,
of the
was modeled
thority
upon of section
largely
language
10(c)
NLRA,5
and the
intended
Legislature
to arm the
plainly
ALRB with the full
of broad remedial
range
powers
exer-
traditionally
(See,
cised
NLRB.
Electric Co. v. Board
e.g., Virginia
1568, 1574,
Indeed,
319 U.S.
539-540
L.Ed.
Contrary Highland’s Bd., J. R. Norton Co. v. Labor Relations 3d Agricultural Cal. supra, 1 casts no'doubt of the remedial order at issue. In Nor upon validity ton, unlike the we with the present were concerned ALRB’s impo sition aof of “make whole” which the NLRB itself has type remedy provides part 5Section any person 1160.3 in relevant that if the ALRB finds that has engaged practice in an unfair labor requiring “the board shall issue an order ... ... person such practice, to cease and desist from such unfair labor to take affirmative ac tion, including employees backpay, making reinstatement of with or without whole, employees appropriate, pay when the board deems such relief for the loss of re sulting employer’s bargain, from the provide refusal to and to such other relief as will policies part....” effectuate the of this 10(c) (29 160(c)) Section of the NLRA provides U.S.C. that if the NLRB finds § any person engaged in an unfair labor “the Board shall issue ... ... requiring person an order to take such such practice, to cease and desist from such unfair labor including employees affirmative action reinstatement of with or without backpay, as will policies subchapter....” effectuate the of this comparison (see 6As a provisions ante), of the state and federal reveals fn. drafters of the ALRA language, inserted additional not found in the NLRA expressly authorizing whole, the ALRB require employers employees when the “[to] mak[e] board deems such refusal to appropriate, pay resulting relief for the loss of from the addition, bargain.” whereas the federal simply empowers act the NLRB to require violators “to take including such affirmative action reinstatement of ... as will policies effectuate the of this subchapter,” section 1160.3 authorizes the require ALRB to violators both “to provide take affirmative action” and “to such other (Italics as will policies part.” added.) effectuate the of this Because the ALRB’s relief clearly existing remedial order in this case is no authority, consistent with federal we have respects occasion to determine in what section was intended expand 1160.3 authority beyond ALRB’s remedial that of the NLRB. *17 NLRA.7 Al to under the authority impose concluded that it has no in section language inserted specific drafters of the ALRA though the act ALRB is au under the California the to make it clear that 1160.3 (see fns. 7 remedy somewhat controversial thorized to this impose ante; Act supra, Labor Relations Levy, The Agricultural of us in Norton was sim 783, 802-803), the issue before Santa Clara Law. afforded authority by ALRB had exceeded the explicit whether the ply “make whole” special remedy in that this section 1160.3 concluding cases, rath all refusal-to-bargain across-the-board in applied should be In Norton we determined er than on a more selective basis. make-whole particular ALRB’s of application across-the-board intent underlying ap with the legislative was not consistent remedy 1160.3, and we held that the Board was section plicable language more sensitively in a fashion remedy to that make-whole required apply of the act. purposes attuned to the fundamental Norton, imposed the ALRB a remedy In the unlike instant Moreover, the NLRA. the rem- validity whose is well-established under ALRB in across-the-board manner but was not edy imposed by that such rem- in the narrow circumstances applied specific, rather was prece- under the federal applicable has been found edy long appropriate 1160.3 or other provision there in section nothing dent. Because to withhold from of the ALRA that the intended Legislature to suggest of remedial sanction which the ALRB the to this impose type authority NLRB under a similar statutory been invoked repeatedly by has scheme, to such a impose ALRB was authorized we conclude that the remedial order this case. Norton, agency at remedy the administrative whole” at issue 7Under the “make agreed if parties would have to wages tempts what and benefits to determine obligated union when it was to with the employer had entered into collective determination, pay the in agency requires the making so. After this do whole” damages, “making the
jured aimed at employees retroactive wrongful they but for the affording would have obtained them the benefits bargain. refusal to Su States position that because United continually has taken the The NLRB requiring either the NLRB from preclude the NLRA preme has construed Court provision agree specific substantive contractual party bargaining to in collective 821]), the (1970) 90 S.Ct. (see L.Ed.2d 397 U.S. Porter Co. v. N.L.R.B. upon its deter remedy based authority impose a “make whole” NLRB likewise lacks agreed probably have parties would wages other benefits the of what mination 1971) (D.C.Cir. 449 F.2d (1970) revd. (See Corp. 185 N.L.R.B. upon. Ex-Cell-o courts, Products, 1234.) 1046; federal how Various 194 N.L.R.B. Inc. Tiidee ever, remedy under cer impose such a authorized to the Board is have concluded that W., E., v. AFL-CIO (See, R. & M. e.g., Union International tain circumstances. 1248-1253; Amer United Steelworkers (D.C.Cir. 1970) 426 F.2d N. L. R. B. ica, 1342, 1349-1352.) (5th 1974) F.2d R. Cir. AFL-CIO N. L. B. 4. The Court resolved correctly objections Appeal Highland’s
the ALRB’s additional findings. unfair As noted at the outset opinion, addition challenging order ALRB’s and remedial to its failure to findings relating ranch, union over of its the effects decision to sell High land also raised to a substantial number of the objections Board’s *18 relate, additional unfair in practice general, labor which findings spe cific instances of misconduct with to individual alleged respect employ Court ees. The discussed of these lim Appeal thoroughly each more case, and, ited issues in this after comprehensive opinion indepen matters, we dently reviewing these have concluded that the Court of resolved of these these Appeal properly each issues. Because additional law, present issues no novel or we important questions of simply adopt reference, the Court of Appeal’s reasoning by as we have done in simi (See (1978) lar circumstances in the v. Scott 21 Cal.3d past. People 284 (1977) P.2d v. James Cal.Rptr. 123]; 19 People [145 Cal.3d 1135].) 561 P.2d Cal.Rptr.
5. Disposition. order (I) of the ALRB is annulled insofar as it relates to the em- rules, ployer’s (2) new work promulgation of the dismissal of Navarro, Francisco Perez to the denial leave of of a absence to Bartolo Prado other of the respects Navarro. all the order ALRB is affirmed.
aLet decree issue enforcing portions of the order Board af- firmed this own decision. Each shall bear its costs. party
Mosk, J., Kaus, Newman, J., J.,* concurred. COBEY, opinion I concurin the notwith- majority J.* I the well reasoned and worded dissent. do not believe standing sharply as an such Labor Code sec- statutory provision, even unambiguous (f), can be read in vacuum. properly tion labor practice The subdivision makes it an unfair quite clearly Ranch, other among things, such agricultural employer, But, opinion union. as the majority points an uncertified * Assigned by Chairperson Acting of the Judicial Council.
out, is insure that the obvious of this subdivision purpose agricultural do that have not the status with unions attained employers representatives through Of exclusive a secret ballot election. election, Here, the union had not won such an but the only decisively summary had not administrative review of the ALRB’s sought to the election. The rejection objections only thing remaining of its of certifica- be done before certification of the union was formality is tion itself. Under these circumstances it form over substance exalting imposition upon to insist that the subdivision constitutes a bar to the union, faith with the notwith- good duty its uncertified status. standing
RICHARDSON, J. dissent. I respectfully unfair
Labor Code that it provides section *19 in collectively refuse to bargain for an either “To agricultural employer relevant to the pursuant faith with certified” good organizations labor or, (id., (e)) “To alternatively, recognize, the code subd. of provisions with, any labor or a collective bargaining agreement sign (Id., (f), italics subd. not certified” thereto. pursuant organization added.) refused to statutory injunction,
In obedience to this clear pursu- its certification prior Farm Workers with the United that such first time holds for the now majority the statute. The ant to an unfair la- itself constitutes practice to commit an unfair refusal of the seize absence upon may “an bor because doubt that the entertain no reasonable can formal certification when will in fact be election a representative in prevailed which has Elsewhere, requirement adds the (Ante, the 862.) majority p. certified.” (Ante, one, well as “reasonable.” faith” “good doubt be a untenable, wholly is the statute 861.) of “amendment” judicial Such p. redrafting judicial example glaring constitutes a view my and statute. controlling to its commands. course, exceptions no such provides Section 1153, subd. (§ unions with certified to bargain requiring (id., subd. (f)) ones with uncertified (e)) from and to refrain employ- for agricultural directive a clear-cut formulated the Legislature clarity, Such organizations. with labor in their relations ers to follow (Ante, “literalistic.” as somehow however, majority is scorned of” substance however, explicit view, “adherance 858.) In my p. 1321) is (see Internat. p. law Webster's Third New Dict. fairness, Labor to the both reasonable and should apply, Agricultural (ALRA). Relations Act it is cling Initially,
To instead? propose what does the majority its construc- history” supports legislative “available suggested unambiguous, is clear and language tion of the statute. When statutory however, indulge that courts should not we have heretofore insisted (1977) 19 Cal.3d Court (Solberg Superior at all. “construction” Further, while the ma- 1148].) 561 P.2d Cal.Rptr. 198 [137 instructive, in my are history references to asserted jority’s legislative undercut, support, position. rather than opinion they Thus, ALRA “repeated notes that the majority proponents the act allow one of recognition stressed that would ly ‘only way secret We don’t allow recognitional that’s ballot election. through we don’t allow authorization cards as do under they strikes [and] (Ante, 859.) upon focused this crucial distinc p. Having NLRA.. ..’” NLRA, the to take tion between the ALRA and the then fails majority in its How does the California logical step analysis inquire: next to be accom provide designated law for that “one way recognition” a secret ballot The answer clear: certification of plished? very By (Lab. Code, Labor Relations Board. Agricultural election by *20 1156.3.) certification, with the result No no Unsatisfied recognition. § however, for support of the must search for other such logic, majority so, its It does but with no success. greater “construction.” adop then surrounding that the Acknowledging legislative hearings (f) to of the tion of the ALRA contain no actual reference subdivision (ante, 860), the turns to a law review article auth p. statute majority provision ored a labor law consultant. The article reads: “‘One new by ALRA it an unfair labor for an em contained in the makes not with ... ployer recognize organization to [or] ties the This section (f)]. certified to Act subd. pursuant [citing § Act, which that the sole procedure specifies in with the election achieve as a bar which a labor can certification means by organization the by is to secret ballot election conducted win a gaining representative of a labor or voluntary sections thus prohibit recognition board. These the by authorization cards signed an based on employer ganization by the ..., interpreting by a decisions practice permitted the that feeling certification reflects procedure NLRA. The ALRA’s choice of a employees’ bargaining the the determining best method (Ante, 860; representative is via the secret ballot election.’” p. Levy, The Act Cali Labor Relations 1975—La de Agricultural Esperanza 783, 789-790.) el Para Futuro 15 Santa Clara Law. fornia value, the demonstrates absolute at face quoted passage
Taken election as the means of only of a secret ballot necessity certification under ALRA. article’s representative choosing bargaining and the alter procedure between California’s “certification” distinction under the achieving recognition cards” method native “authorization certification under by the central role played federal law underscores ALRA, refuses to it. recognize but either fails or majority do these “indicia of intent” support While that legislative conceding (f) an prevent employer that was designed conclusion re union has not been selected as a from with a dealing process,” majority the ALRB’s “secret election presentative through of that must portion “process” declares that unaccountably only My arises. duty colleagues before the completed from the poll assert that once a union victorious” emerges “apparently booth, then freed from the statute’s ing only prohibi union, uncertified but indeed incurs an tion with an against bargaining can establish that it subsequently so unless duty bargain, absolute faith, doubt to the at the crucial time a reasonable as “good entertained been certified formally status of a union has not representative yet (Ante, 861.) Otherwise, acts “at the ALRB p. .....” with a its certification. prior peril” refusing (Ibid.) blade, with a dull thus out of the statute
Hacking majority chops clear-cut, fixed “certification” temporally understood readily test lies at the heart In its for union which ALRA. recognition place attempts graft amorphous majority subjective/objective faith, test doubt” to a union’s sta- “good representative reasonable *21 tus, while for trans- guess-work certainty, simultaneously substituting from federal cases the notion that an who inapposite employer planting is fails “at to the new standard the test its The trans- peril.” subjected take; will not the should plant attempted graft rejected. here, is no as the cannot there deny, *22 union, yet one which had to
involved an already recognized recognition. federal law to achieve that satisfy requirements (9th (See Cir. Navigation Corporation N. L. R. B. v. Transmarine 872
1967)
had a
with a
[employer
duty
bargain
380 F.2d
to
in
over the effects of the
1963 deci
employer’s
union certified
sion
Thermometer
operations]; Cooper
Company
to relocate
(2d
1967)
a
B.
687-688
had
[employer
N. L. R.
Cir.
F.2d
over the
of its 1964 relocation decision on mem
duty to
effect
bargain
Institute
contract];
bers of a union
under a 1962
Automation
recognized
(208
92, 1974)
No.
The with, of, a union and bargaining notification requires that federal law not in did pending are still recognition to that union’s while objections (See all. business at of the employer’s or sale volve the termination Co., (5th 1978) Cir. Products R. Const. v. W. Grace & N.L.R.B. unilateral employer’s with an 279.) Instead, was concerned F.2d Grace four off conditions—laying of employment change (Id., at notice to the union. advance shifts—without work changing notes, recognized has long federal law 282-283.) As the majority pp. in such changes over proposed to bargain duty (Ante, objections. of election resolution pending conditions working unilat employer’s prevent 856.) duty reason for such The p. policies. of work implementation irreversible possibly eral and be a decision such participate should union, ultimately recognized, if future, and the thereby in will governed be cause its members subsequent negotia and its effectiveness status representative union’s rationale, however, has no That affected. adversely tions would or terminat is sold a business in which to a case whatever applicability dilutes an neither Grace ceases. relationship the employer-union ed and with reason any business out of go freedom absolute with, union, or not certified to, or consultation notice out advance 827, 835-836]), L.Ed.2d Textile, 272-274 (see 380 U.S. supra, a union duty of an employer’s the issue nor examines been made. decision has after such a misstates feder- I think that the thus even respect, majority
With due NLRA an to bar- employer’s duty that under the al law suggesting of a business extends of sale or termination over the effects gain union. unrecognized *23 un- and simple, section 1153 is plain, of Labor Code
The command faith (1) must good An agricultural ambiguous. with non- must not organizations with certified are read clear. We equally judicial obligation certified ones. Our hands is, have At the majority’s as it been. might the law as it becomes thereby an unfair labor refusal to commit Highland’s view, uses errone- clearly majority an unfair labor practice. my turning precedent, thereby to establish a bad plainly ous analysis me, impose approaches preposterous statute down. To upside anticipate for its failure on an “backpay” penalty which the Labor Code explicitly prohibits. would court require Labor Code section sense way interpreting There is no common refusal (f), Highland’s a manner as to convert such I into an unfair labor practice, with an uncertified union would so hold.
Files, J.,* concurred. * Council Assigned Acting Chairperson of the Judicial by the As notes majority (f) 1153 of the La- of section in the NLRA to subdivision counterpart as a recognition act a union’s bor Code. Under federal election, as under Califor- come a secret ballot representative may from act, however, law pro- the federal also California nia law. Unlike the a support of for independent showing an recognition upon for vides of authorization signing or through strikes recognitional by union circumstances, In such involved. the employees of by majority cards a as certifica- precise so an action hinge upon does not recognition where board, impose make some sense may it administrative by tion an indicia of majority the apparent a to construe employer duty an upon however, of superimposition due respect, With its peril.” “at support re- well defined certification the already burden upon additional that sense. We absolutely makes no the California statute of quirement of the precedents it is only “applicable” in mind that bear should (Lab. Code, to follow. the ALRB is constrained § NLRA which added.) italics addition, provisions different distinctly even under have to bar- duty an would a employer NLRA it doubtful whether is employer’s of that union over effects with an unrecognized gain cited None of the cases apparently or sale of its business. termination (ante, 857) p. sup- the majority that dubious very proposition by for it. ports Textile Co. Darlington Workers ruling Court’s Supreme 827, 85 is 994], example, L.Ed.2d S.Ct. 380 U.S. [13 an closes his entire busi- hold here that when only clear: “We ness, is vindictiveness toward the liquidation by even if motivated (Id., union, practice.” unfair labor at 273-274 pp. such action not an In the ac- pp. 835-836].) majority L.Ed.2d at instant [13 with no knowledges obligation any (Ante, 857.) a In view p. union such decision. making before of its employer’s closing further that an ruling part Textile court’s chill unionista” in its remaining business “motivated purpose by (380 act under federal did constitute an unfair labor plants to, U.S., had no occasion p. 836]), at at that court p. L.Ed.2d not, duty and did address the question close sell its effects a decision to or busi- concerning ness was made. decision after an employer’s Three of the cases cited did examine majority plant to close its and relocate union of decision duty notify behalf of the employees its business so that the union could on them, however, as to effects of that decision. Each represented