RIVCOM CORPORATION et al., Petitioners, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.
S.F. No. 24520
Supreme Court of California
Oct. 17, 1983.
34 Cal. 3d 743
Campagne & Giovacchini, Thomas E. Campagne, Thomas M. Giovacchini, L. Kim Aguirre and Gerald Lee Tahajian for Petitioners.
Dianna Lyons, Federico G. Chavez, Ellen J. Eggess, Daniel A. Garcia, Ira Gottlieb and Wendy Jones for Real Party in Interest.
OPINION
GRODIN, J.—Rivcom Corporation (Rivcom), its parent Riverbend Farms, Inc. (Riverbend), and Triple M. Farms, Inc. (Triple M) petition for review of a decision of the Agricultural Labor Relations Board (Board) that the first two companies (collectively the growers) committed acts prohibited by
We must decide, among other things, what deference is due the Board when it infers from circumstantial evidence that refusal to hire a predecessor‘s workers was prompted by a prohibited antiunion motive. We conclude that substantial evidence on the whole record supports the Board‘s decision here. We also reject the petitioners’ remaining contentions. Therefore, we enforce the Board‘s order.
Rivcom Ranch, formerly known as Rancho Sespe, lies near Santa Paula in Ventura County. The property includes some 4,300 acres, about 1,500 of which are devoted to its principal crops, citrus and avocadoes. Between 1973 and January 1979 the ranch was owned by PIC Realty Company (PIC), a subsidiary of Prudential Insurance Company.
National Property Management Systems, Inc. (NPMS) supervised farming operations under contract with PIC. NPMS employed a year-round agricultural workforce living in labor-camp housing on the premises. The resident employees numbered as many as 140. Most had worked on the ranch for a considerable period, some as long as 10 years. There was evidence that its recent operations had not been profitable.
On May 9, 1978, the UFW won a representation election among the ranch workers. The union was certified on May 17 as the bargaining representative of all agricultural employees of “Rancho Sespe.”
In the same year, a group of investors began negotiations to buy the ranch. Newport Properties, Inc. (Newport) was organized for this purpose. The investors eventually decided to lease the ranch for farming purposes to Larry Harris, president and principal shareholder of Riverbend. That company operated as a packer and marketer of citrus for many Ventura County growers. Harris was interested in the ranch primarily as a source of crops for Riverbend‘s packing operation.
Harris testified he toured the property early in January 1979, saw the need for drastic operational changes, and decided that the current workers should not be rehired because they would resist change. He admitted he became aware “sometime in 1978” that the UFW had won an election among the ranch employees.
On January 16, 1979, PIC sold Rancho Sespe to Paraships Builders, which immediately conveyed it to Newport. Newport, in turn, leased the land to Rivcom, a wholly owned subsidiary of Riverbend. The annual rent was to be at least equal to Rivcom‘s “net profit” from farming operations, up to $1.675 million.
On the day of the sale, an NPMS official informed the Rancho Sespe employees that their jobs were terminated. Within the next two days, Riv
On January 18, Emilio Huerta, a UFW agent, telephoned Harris’ lawyer, Thomas Campagne. Campagne told Harris that Huerta had demanded recognition of the union, reinstatement of all the displaced employees, withdrawal of the eviction notices, and immediate bargaining about operational changes and a permanent contract. On January 19, the UFW sent Rivcom a mailgram containing essentially the same demands; Rivcom simultaneously received in the mail a copy of unfair labor practice charges filed with the Board.
Harris testified he was confused about receiving demands and charges at the same time. He ordered Campagne to respond to Huerta. Campagne‘s letter, dated January 19, addressed the recognition issue only. It urged that the prior UFW certification was not binding on Rivcom, and that Rivcom‘s recognition of the union might violate
On January 31, about 60 former Rancho Sespe employees walked together to the ranch office. Some carried signs saying “We want our jobs.” A delegation went in and asked to speak to Harris. After a few minutes, a security guard told them Harris would talk to them outside. The group waited in the rain for about 30 minutes. A deputy sheriff, Juan Mendez, then requested that they leave the property. The group‘s leader, Jaime Zepeda, asked Mendez, who had experience in labor relations, to relay a message to Harris. After talking with Harris, Mendez told the workers Harris did not wish to speak with them, and they dispersed.5
On February 5, Harris received a letter from the UFW dated February 1. It recited that “[t]he former employees of . . . Rancho Sespe,” including
2. The Refusal to Hire.
The Board adopted the conclusion of the administrative law officer (ALO) that the growers violated subdivisions (a) and (c) of
Subdivisions (a) and (c) correspond respectively to section 8(a)(1) and (3) of the National Labor Relations Act (NLRA). (
It is an unfair labor practice for an employer “[t]o interfere with, restrain, or coerce” employees in the exercise of their organizational rights (
The growers do not dispute these settled principles. They argue, however, that the record here cannot support the charges.
At the outset, the growers invoke the general rule that an employer commits no unfair labor practice by rejecting offers to work which are absolutely conditioned on terms he need not accept. (See, e.g., Packing
The Board concluded that the UFW reinstatement applications were not conditional, since any “demands” were nothing more than negotiating ploys. It was not clear, said the Board, that every applicant would really refuse to work unless the growers agreed to the unwarranted terms.6
We need not tarry over the Board‘s reasoning. Deficient applications are no legal justification for a refusal to hire if proper, timely offers to work would also have been rebuffed. (Packing House and Indus. Services, Inc., supra, 590 F.2d at pp. 695-696; Piasecki Aircraft Corporation v. N. L. R. B. (3d Cir. 1960) 280 F.2d 575, 585, cert. den. (1960) 364 U.S. 912; Macomb Block and Supply, Inc. (1976) 223 N.L.R.B. 1285, 1286, enforcement den. on other grounds (6th Cir. 1978) 570 F.2d 1304; see Kawano, Inc. (1979) 4 A.L.R.B. No. 104, pp. 4-5.)
The growers’ defense to the charge of antiunion motive is founded on the premise that Harris had already decided before January 16 not to consider the predecessor‘s workers, based on his preference for familiar Triple M personnel and his view that new employees were needed to implement operational changes. (See discussion, post.) Indeed, Harris testified that on both January 18 and February 5, the dates on which the union “demands” were received, he had no positions available and no reasonable prospect of any in the foreseeable future. Hence, the “improper application” argument lacks merit.
The growers next claim the record fails to support a conclusion that the refusal to hire was impelled by an antiunion purpose. We cannot agree.
Of course, we do not reweigh the evidence. If there is a plausible basis for the Board‘s factual decisions, we are not concerned that contrary
Here, as often happens, there was no direct or specific evidence that the growers’ hiring policy for obtaining agricultural workers was wrongly motivated. No witness testified, for example, that Harris had vowed to avoid the UFW by any and all means. Rather, the Board inferred improper motive primarily because it did not believe Harris’ alternative explanations of his conduct. Its decision must be sustained if its grounds for discrediting Harris were plausible.
As a rule, motive must be inferred from all the circumstances, and the Board‘s expertise entitles it to considerable deference in deciding that question. (E.g., Penasquitos Village, Inc. v. N. L. R. B. (9th Cir. 1977) 565 F.2d 1074, 1079; Royal Packing Co. v. Agricultural Labor Relations Bd. (1980) 101 Cal.App.3d 826, 835-836.) The general counsel has the burden of establishing bad motive. Yet inferences arising in law and reason may require an employer to justify his suspicious acts.
For example, NLRB v. Great Dane Trailers (1967) 388 U.S. 26 established that some employer conduct is so “inherently destructive” of employee organizational rights as to constitute a prima facie violation which the employer must explain away. Conduct of this kind “carries with it ‘unavoidable consequences which the employer not only foresaw but which he must have intended’ and thus bears ‘its own indicia of intent.’ [Citation.]” (P. 33 [18 L.Ed.2d at p. 1034].)
In such cases, the Board may find an unfair labor practice “even if the employer introduces evidence that the conduct was motivated by business considerations. . . . [¶] . . . Thus, . . . once it has been proved that the employer has engaged in discriminatory conduct which could have adversely affected employee rights . . . , the burden is upon the employer to establish that he was motivated by legitimate objectives. . . .” (P. 34 [18 L.Ed.2d at p. 1035].) If his business justifications are not “legitimate and
Wholesale replacement of union with nonunion employees has a manifest and substantial adverse impact on organizational rights. (See Phelps Dodge Corp., supra, 313 U.S. 177, 185.) Arguably, therefore, the Great Dane analysis applies; indeed, both the Board and the parties have proceeded on the assumption that it should. (See Columbus Janitor Service (1971) 191 N.L.R.B. 902, 910-911; see also Rushton & Mercier Woodworking Co. (1973) 203 N.L.R.B. 123, 125-126, enforced (1st Cir. 1974) 502 F.2d 1160, cert. den., 419 U.S. 996.)
Great Dane aside, common sense supports the Board‘s argument that it could infer bad motive from the lack of credibility in Harris’ explanations. When an employer acquires an enterprise soon after a union has won election as bargaining representative, he is bound to know that under existing law he may, by hiring new employees, be able to avoid the bargaining obligations he would otherwise inherit. (See discussion, post.) He has full power to employ new workers for other reasons. (Howard Johnson Co., supra, 417 U.S. 249, 261-262, and fn. 8; Burns Security Services, supra, 406 U.S. 272, 280-281, fn. 5, 287-288.) But the Board need not ignore his obvious incentive, when faced with a recent certification, to use his hiring authority as a means of nipping union problems in the bud.
The antiunion temptation to take such a course is likely to be much greater than in the case of an individual discharge. Therefore, when all the reasons a new employer has given for replacing the union workforce with nonunion employees are found unconvincing, and the circumstances otherwise permit, the Board may be entitled to conclude that the true motive is the prohibited one. (See Foodway of El Paso, supra, 496 F.2d 117, 119-120; Tri State Maintenance Corporation v. N. L. R. B. (D.C.Cir. 1968) 408 F.2d 171, 174; Shattuck Denn Mining Corp. (Iron King Branch) v. N. L. R. B. (9th Cir. 1966) 362 F.2d 466, 470; Columbus Janitor Service, supra, 191 N.L.R.B. 902, 910-911.)
The growers raise no fundamental objection to these principles. They argue vigorously, however, that the Board had no grounds to reject Harris’ “uncontradicted” statement of his legitimate business motives.
We recognize that the Board must accept “uncontradicted and unimpeached” testimony unless “there is some rational reason for disbelieving
The growers first rely on Harris’ statement of his established preference for employees who had already worked for him.8 They point to several NLRB decisions suggesting that employers need not alter customary hiring practices when taking over new businesses, even if this means wholesale rejection of a predecessor‘s union workers. (E.g., Industrial Catering Company (1976) 224 N.L.R.B. 972, 978; Crotona Service Corp. (1972) 200 N.L.R.B. 738, 740-741; Southline System Services (1972) 198 N.L.R.B. 449, 452.)
The growers contend that a consistent preference for familiar workers over strangers dispels any Great Dane-style inference of antiunion animus. In each of the cases they cite, however, the NLRB simply credited employer assertions of good faith under all the circumstances.
For example, in Industrial Catering, the NLRB noted the several months’ time lapse between discontinuance of cafeteria services and their resumption under a new concessioner. It also found convincing the new employer‘s argument that his services differed substantially from the predecessor‘s and that he employed rigid and standardized methods in all his cafeteria operations. (224 N.L.R.B. at p. 978.)
Evidence that an employer treats union workers just as he has treated nonunion workers in the past weighs toward a finding that there was no antiunion discrimination or animus. (E.g., Pellegrini Bros. Wines, Inc. (1979) 239 N.L.R.B. 1220, 1226.) Yet here the Board concluded from all
According to Harris, his observations at the ranch convinced him that quick and drastic changes were necessary to turn it into a profitable farm. He had a longstanding relationship with Triple M through Riverbend, and it provided a ready pool of workers familiar with the methods he intended to install.
The growers also assert that here, as in his prior takeovers, Harris adhered to the “management principle” that a new operator should not hire his predecessor‘s employees, since they are likely to resist change. Moreover, they say, Harris wished to reward Triple M employees for their past loyalty; he had promised one crew that its members would have the first of any new work in Ventura County.
The Board saw numerous reasons for distrusting Harris’ statement of his motives. First, it noted that evidence of Harris’ past practice in taking over businesses was scarce, and it concerned much different entities.9 Hence, there was little basis to conclude that he was acting consistently by preferring his own workers in this case.
Next, the Board found no logic or prudence in Harris’ untested assumption that the Triple M employees were superior for his purposes. The NPMS workers were on the premises, readily available. They had long experience with the ranch‘s operation, while the imported Triple M personnel had none. Harris himself had never farmed such large acreage. Yet he never inquired whether any of the NPMS employees had skills he could use,10 and he actively avoided their repeated attempts to offer themselves for work.
The Board also concluded, on conflicting evidence, that the operational changes Harris planned were not substantial. This, it suggested, undermined his asserted belief that a complete personnel turnover was necessary. Harris testified that he wished to reduce the labor force, switch from “furrow” to “drip” irrigation, change from cultivation to herbicides as a means of weed control, substitute piecework compensation for hourly wages in harvesting, and alter fruit-picking methods. However, the Board credited evidence that
Moreover, said the Board, Harris could not have evaluated the Triple M employees’ skills in these preharvest areas; Riverbend, as a packer, provided harvesting and pruning services for its grower customers but had not been involved in other cultivation matters.
The growers made much of Rancho Sespe‘s outdated pruning methods, but the Board concluded that the changes involved no extensive retraining. It is conceded that some of the workers hired had no familiarity with Harris’ pruning techniques.11
The Board noted that, despite Harris’ claims of loyalty to the Triple M employees, and of their special skills in his techniques, none had worked for Riverbend more than two years. Many were seasonal only, and some had less than three months’ experience with Harris.
Under these circumstances, the Board also questioned Harris’ reliance on a “management principle” of avoiding the predecessor‘s experienced workers. In the Board‘s view, blind adherence to such a principle was not a prudent alternative to ascertaining the actual qualifications of a seasoned, already-present labor pool.12
The growers argue that asserted motives cannot be rejected simply because they are unreasonable, since the employer can refuse to hire for any cause, good or bad, other than antiunion animus. (See, e.g., N. L. R. B. v. Joseph (9th Cir. 1979) 605 F.2d 466, 468; National Labor Relations Board v. McGahey (5th Cir. 1956) 233 F.2d 406, 412.) However, common sense suggests that the less logical a motive for business conduct, the more likely that it did not actually exist.13 We think the Board may decide, within rea-
, the NLRB said: “[t]he apocryphal character of such claim is self-evident for the Respondent did not interview a single Allied employee to ascertain whether he or she possessed bad habits or whether he or she would adapt to the Respondent‘s work methods, although it knew Allied employees were available for employment.” (P. 911.)The Board, like the ALO, was also unpersuaded by Harris’ assertions that he had assured a Triple M crew first chance at any new farm work in the county. This vaguely stated promise, the Board reasoned, could not have been a serious factor in Harris’ plans, since it was made in mid-1978, long before Harris had any idea he would be allowed to pick and pack the ranch‘s fruit. Only later did it become clear that he would have to take over farming operations in order to obtain the crops.
Moreover, Harris’ testimony was confused as to places, dates, and number and names of Triple M employees to whom he spoke, undermining his general credibility and indicating a lack of warmth and loyalty toward the workers. Indeed, Harris did not know if any of the workers he addressed had ever worked for Riverbend.15 By the time of the hearing (Apr. 1979) he had obtained from Triple M many more employees than were in the “promised” group, including 13 temporary people who had never worked for him before.16 Again, while contrary inferences were certainly possible, the Board‘s analysis is supportable.
Harris argued that speedy changes were needed to enable him to meet the “burdensome” rent obligations. The Board found, however, that few changes had been made in the first three months of operation. The growers’ rebuttal that little could be done in the winter months actually contradicts their assertion that the need for speed was a factor in Harris’ determination.
Finally, as the Board noted, the reasons Harris gave for his actions were often irreconcilable. For example, he explained his uncooperative attitude
toward the UFW as hostility and “confusion” about its harsh and rigid demands. He testified that individual inquiries from the NPMS workers were never received, hinting that they would have been considered. Yet he also maintained that his employment policies arose from a prior decision to follow the absolute “management principle” against hiring a predecessor‘s workforce. He conceded, indeed insisted, that by the time the UFW‘s first communication was received, all hiring had been done, and no positions were or would be available.
In sum, the Board found Harris’ statement of his business justifications to be “superficial, unfounded, and contradictory” under all the circumstances. This, in the Board‘s view, left “only the explanation that [the growers] sought to avoid hiring employees who had already chosen the UFW as their bargaining representative.”
On the whole record, we see no basis to disturb the Board‘s conclusion. The evidence supports its finding that Harris knew of the UFW election victory when he agreed to farm the ranch. Upon taking it over, he moved swiftly to evict the unionized employees. He provided them no opportunity to apply for work, never inquired about their qualifications, and steadfastly determined that none would be rehired, though they represented a labor pool with extensive experience in the ranch‘s operations. While hastily assembling his own complement of workers, he avoided the former employees’ efforts, both direct and through their union, to plead their case for reinstatement. His response to the union‘s complaints was minimal, uncooperative, and evasive. His replacement personnel, all newcomers to the ranch, had no union affiliation. On substantial evidence, the Board concluded that the “innocent” business reasons advanced for these policies were inconsistent and incredible.
Such facts may not compel the inference that an employer acted for antiunion reasons, but they amply support it. (Compare, e.g., Kallmann v. N. L. R. B. (9th Cir. 1981) 640 F.2d 1094, 1099-1100; N. L. R. B. v. Houston Distribution Serv., Inc. (5th Cir. 1978) 573 F.2d 260, 264, cert. den., 439 U.S. 1047 [58 L.Ed.2d 705, 99 S.Ct. 722]; Foodway of El Paso, supra, 496 F.2d 117, 119-120; N. L. R. B. v. New England Tank Industries, Inc. (1st Cir. 1962) 302 F.2d 273, 276, cert. den., 371 U.S. 875 [9 L.Ed.2d 114, 83 S.Ct. 147]; Piasecki Aircraft Corporation, supra, 280 F.2d 575, 576-585.) Accordingly, the Board‘s determination must be upheld.
3. Evictions.
The Board found that eviction of the Rancho Sespe workers from the labor camp was a separate violation of
The growers introduced evidence that Harris considered maintenance of labor housing unduly expensive, wanted the land for agricultural use, and believed it best to encourage workers to maintain their own homes. There was, however, conflicting evidence on the virtues of resident labor. In any event, the Board reasoned that none of Harris’ asserted reasons justified the haste with which the eviction notices were served. While conflicting inferences are possible, we see no reason to disturb its conclusions.
4. Refusal to Bargain.
The Board found that the growers had violated
The growers note that continuity of the work force is an essential element of successorship. Since Harris hired no prior employees, they urge, they cannot be successors. But a new employer cannot avoid successorship status by a discriminatory refusal to hire the predecessor‘s workers. Where such conduct has occurred, continuity of the workforce will be presumed. (E.g., Foodway of El Paso, supra, 496 F.2d 117, 120; K.B. & J. Young‘s Super Markets, Inc. v. N. L. R. B. (9th Cir. 1967) 377 F.2d 463, 466, cert. den., 389 U.S. 841 [19 L.Ed.2d 105, 88 S.Ct. 71].)
Nevertheless, the growers say, there is need for separate proof that, absent the discriminatory motive, the new employer would have hired enough
The growers suggest that, even with continuity of labor force, they were not a successor, since they substantially altered working conditions, equipment, methods of farming, and number of permanent employees at the ranch. The Board found the “essential nature of the business” unchanged; despite the institution of new practices, it continued to grow and harvest substantially the same crops at the same location.
Successorship analysis seeks to determine whether, after a transfer of business control, the previously certified bargaining unit remains appropriate in light of employee needs and expectations. (See Burns Security Services, supra, 406 U.S. 272, 280 [32 L.Ed.2d 61, 68].) The test, at bottom, is whether it is proper to assume the previous unit still exists and still is represented by the union. (N. L. R. B. v. Hudson River Aggregates (2d Cir. 1981) 639 F.2d 865, 869; N. L. R. B. v. Middleboro Fire Apparatus, Inc. (1st Cir. 1978) 590 F.2d 4, 8.)
In this context, continuity of supervisory personnel, use of the same machinery and equipment, and retention of individual employee functions are important but not dispositive. Continuity of the unit‘s workforce, presumed in this case, is the most crucial factor. (See Hudson River, supra, 639 F.2d 865, 869; Service, Hospital, etc. v. Cleveland Tower Hotel (6th Cir. 1979) 606 F.2d 684, 687; Intern. U. of Elec., Radio & Mach. Wkrs. v. N.L.R.B. (D.C.Cir. 1979) 604 F.2d 689, 694; San Clemente Ranch, supra, 29 Cal.3d at p. 891.) The Board did not err in finding the growers to be successors.
5. Riverbend‘s Opportunity to Be Heard.
At a prehearing conference, the ALO granted Riverbend‘s motion to be dismissed as a respondent. Riverbend argues that it was unfairly surprised and denied due process when, without notice on the last day of hearing, the general counsel was allowed to amend the complaint to reinclude Riverbend as a “joint employer” subject to any remedial order. Riverbend
The original and first amended complaints had named Riverbend as a respondent, asserting that Rivcom was its wholly owned subsidiary and agent. They also had alleged that joint-employer status existed between Newport and Riverbend, and between Newport and Rivcom. However, it was never recited that Riverbend and Rivcom were directly related as joint employers.
When the ALO granted Riverbend‘s motion to dismiss, he ordered Riverbend‘s name removed from the complaint‘s caption and from its prayer for relief. The original joint-employer allegations remained in the body of the pleading.
We reject the Board‘s contention that these remaining boilerplate allegations were enough to place Riverbend on notice after its dismissal that it was potentially liable as a joint employer. The clear purpose of the ALO‘s prehearing order was to drop Riverbend from the complaint on grounds the allegations against it were not sufficient to state a claim (see discussion, post). On the basis of the pleadings alone, Riverbend was entitled to believe it had been dismissed from the proceeding.
We are concerned about the timing of the later amendment. However, we conclude that it did not deny Riverbend due process. Harris is president of both Rivcom and Riverbend, and he was present throughout the proceedings. So were one or more members of Campagne‘s law firm, which acted on Riverbend‘s behalf throughout.
On the third day of the hearing, Harris was called as an adverse witness by the general counsel and was examined at length on the relationship between Riverbend, Rivcom, and Triple M. After a recess, the ALO broached the question of Riverbend‘s status. He advised Campagne that he had dismissed Riverbend because allegations of a parent-subsidiary relationship, standing alone, were insufficient to saddle that company with responsibility for Rivcom‘s unfair practices. However, he said, “I‘d like you to on the record be aware that in my mind testimony has opened up serious question as to whether Riverbend . . . may also be an employer, an agricultural employer under the Act.” Campagne responded by reiterating his argument that Triple M, not Riverbend, employed the workers used in Rivcom‘s farming operation.
On the last day of the hearing, after both sides had rested, the Board‘s counsel sought several amendments to conform to proof, including a new
Indeed, the due process-surprise argument was not raised in the growers’ joint posthearing brief to the ALO. Though it was included among the 238 formal exceptions presented to the Board, the question was not briefed at that level. Nor was it asserted in the Court of Appeal until oral argument, at which time that court requested supplemental briefing.
Riverbend still claims it would have litigated the joint-employer issue more fully had it known it remained potentially liable. Yet it has never suggested any specific, material new evidence it would have adduced had the hearing been continued or reopened.
Amendments to conform to proof are liberally allowed unless they prejudice the opposing party. (
6. Employer Status.
The growers contend there is no substantial evidence that either is the statutory employer of the ranch workers. They first urge that Triple M is “the” true employer. Labor contractors, of course, are excluded from employer status by the ALRA. (
The Board found the contrary. It acknowledged that Triple M had some characteristics of a custom harvester; it provided equipment and hauling services, set wages, and apparently had hiring and firing authority.21 However, the Board concluded on conflicting evidence that Harris had primary control over day-to-day farming operations. Most significantly, it determined that Rivcom and Riverbend, rather than Triple M, had “the substantial long-term interest in the ongoing agricultural operation” which made it appropriate to fix employer responsibilities on them. (See Corona College Heights Orange and Lemon Association (1979) 5 A.L.R.B. No. 15, pp. 11-12.)
We agree. The ALRA expressly excludes both a “farm labor contractor” and “any [other] person supplying agricultural workers to an employer” from the otherwise expansive definition of “agricultural employers” subject to the Act. A farm operator who “engages” the labor supplier is “deemed the [statutory] employer for all purposes” of the statute. (
In these provisions, the ALRA‘s drafters directly addressed the widespread practice of obtaining field workers from intermediate suppliers who retain ostensible control over hiring, firing, wages, and working conditions. The Act sought to bypass that intermediate employment relationship and to “establish [an] ‘industrial’ bargaining unit scheme, with collective bargaining directly between growers and unions.” (Vista Verde Farms v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 307, 323 [172 Cal.Rptr. 720, 625 P.2d 263].) It also confirmed farm operators’ direct responsibility for unlawful interference with employees’ organizational rights. (Id., at p. 326.)
The Board developed the “custom harvester” distinction in response to arguments by certain labor suppliers that they were entirely excluded from statutory responsibility as mere labor contractors. No decision holds, how-
Riverbend claims there is no basis to conclude it is a “joint employer” with Rivcom. There was ample evidence, however, that for labor-relations purposes, Rivcom and Riverbend operated as a single enterprise. (N. L. R. B. v. Triumph Curing Ctr. (9th Cir. 1978) 571 F.2d 462, 468; Abatti Farms, Inc. (1977) 3 A.L.R.B. No. 83 (ALO Dec., pp. 10-18).) Harris is principal owner of Riverbend, which owns Rivcom. For the most part, the ranch serves as the integrated farming arm of Riverbend‘s marketing operation; Rivcom cultivates citrus which Riverbend harvests, hauls, packs, sells, and ships. Harris makes the day-to-day management decisions for both entities.22 He helped select, and he largely directs, the Triple M workers used by both Rivcom and Riverbend. There was evidence that Triple M workers have been transferred back and forth to both Rivcom and Riverbend payrolls as needed.
Riverbend‘s (and Rivcom‘s) lack of control over wages and hours of the Triple M workers is not fatal to a finding of employer status under the ALRA. That contract labor suppliers have traditionally retained those functions in California agriculture does not insulate the growers who engage them. (Abatti Farms, Inc., supra, 3 A.L.R.B. No. 83 (ALO Dec., pp. 10-18); see Vista Verde Farms, supra, 29 Cal.3d 307, 323.) The Board‘s finding of joint-employer status is upheld.23
The remedial order directs Rivcom and Riverbend to replace the employees now working at Rivcom Ranch with UFW workers displaced by the discriminatory refusal to hire. Triple M was not a party before the Board. In its separate petition for review (
Triple M cites NLRA precedent which suggests that the Board may not interfere with contractual relations between a party and a nonparty unless the contract arises directly from an unfair labor practice and is void as a matter of statutory policy. (Compare, e.g., Nat. Licorice Co. v. Labor Board (1940) 309 U.S. 350, 363-366 [84 L.Ed. 799, 810, 811, 60 S.Ct. 569], with Edison Co. v. Labor Board (1938) 305 U.S. 197, 231-239 [83 L.Ed. 126, 141-145, 59 S.Ct. 206].) Recent NLRB decisions indicate the Board‘s reluctance to order abandonment of an employer‘s current labor-supply contract and reinstitution of another previously terminated, unless both old and new contractors have appeared and argued. (Compare Hillside Manor Health Related Facility, supra, 257 N.L.R.B. 981, 984-985, with Mobil Oil Corp. (1975) 219 N.L.R.B. 511, 512, enforcement denied on other grounds, Alaska Roughnecks & Drillers Ass‘n v. N. L. R. B. (9th Cir. 1977) 555 F.2d 732, cert. den. (1978) 434 U.S. 1069 [55 L.Ed.2d 771, 98 S.Ct. 1250].)
As noted, however, our farm labor law expressly discounts the widespread use of labor contractors by California growers. It makes the latter the “employers” for “all [labor relations] purposes” of agricultural workers supplied them by the former. (
Any of the ALRB‘s remedial powers, including the power to order direct bargaining between grower and union, are likely to affect intermediate relationships between growers and contractors, and between contractors and workers. If the contractors were indispensable parties in every such case, the Board‘s power to fashion the remedies contemplated by the Act would suffer grievous harm.
Of course, the contractor may seek to intervene (
8. Remedies.
The Board‘s remedial order includes a broad cease-and-desist provision, as well as awards of reinstatement, backpay, and “make-whole” reparations for the growers’ refusal to bargain with the union.
Among other things, the Board ordered the growers to negotiate with the UFW and directed them not to discourage union membership by “attempting to evict, or evicting” the NPMS workers from housing “provided them as a condition of their employment by NPMS.”25
Citing J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1 [160 Cal.Rptr. 710, 603 P.2d 1306], the growers next urge that the Board erred by ordering them to make the NPMS employees whole for imputed bargaining losses (see Highland Ranch, supra, 29 Cal.3d 848, 866, fn. 7), since there was no finding that their refusal to bargain was in bad faith.
Our statute, unlike the NLRA, expressly empowers the Board to order the make-whole remedy for an employer‘s bad-faith refusal to bargain. (
Here, the Board found on substantial evidence that the growers attempted to evade the bargaining duties of a successor by adopting an illegal tactic — purposeful discrimination in hiring on the basis of union affiliation. In other words, they acted in bad faith in creating their claim of lack of successorship. No purpose of the ALRA would be served by insulating them from
The growers also urge that the reinstatement, backpay, make-whole, and no-eviction orders should not extend to all the former NPMS employees. Since the record establishes the ranch‘s reduced labor needs, they argue, we must assume many of the NPMS workers would not have been rehired in any event. (See, e.g., Castleman & Bates, Inc. (1977) 228 N.L.R.B. 1504, 1507-1508; Rogers Furniture Sales, Inc. (1974) 213 N.L.R.B. 834, 835-836.)27
The Board recognized that Rivcom‘s needs might not accommodate all the former NPMS workers. It directed that those who could not be reinstated immediately be placed on a nondiscriminatory preferential-hiring list approved by the regional director. It then fashioned an order compensating losses “sustained by” the employees “as the result” of the refusal to bargain and “suffered” by “each of the employees . . . as a result of Respondents’ unlawful refusal to hire them, . . .”
Under the circumstances, we construe the order as self-limited to losses directly arising from the unlawful conduct. That interpretation excludes those former employees who would not have been rehired even under a legitimate hiring policy. The identities of the excluded workers may be determined at a subsequent compliance hearing. (Kawano,
9. Housing Issues.
Finally, the growers seek modification of the no-eviction provision of the Board‘s order in light of outside proceedings affecting the labor camp. They ask us to take judicial notice of materials which suggest that in 1980, Ventura County condemned the camp as unsafe and uninhabitable and posted notices warning that occupancy is unlawful.30 A June 1980 superior court injunction, which ordered Rivcom and Newport (owner of the ranch) to make specified repairs, is pending on appeal.31
The Board‘s ban on eviction, the growers urge, conflicts with the property‘s condemned status. They contend that section 1103, subdivision (a) of the Uniform Housing Code permits them to abate a structural nuisance “immediately dangerous to life, limb, property, or safety of the public or occupants” by abandoning rather than repairing it.33
Subdivision (a)(2) of section 1103 only provides that immediately dangerous premises “shall be ordered vacated.” It grants no paramount right to let the housing become unsafe in order to avoid a duly entered ALRB order preventing discriminatory evictions. Were we to agree with the growers’ theory, employer-landlords would have an easy means of evicting workers who are not wanted because they have exercised organizational rights. (Cf., Vargas, supra, 22 Cal.3d 902, 915; S.P. Growers, supra, 17 Cal.3d at p. 725.) Such conduct is repugnant to the Act and to public policy.
On the other hand, the Board concedes that its order runs only against the growers and does not prevent the county from taking actions immediately necessary under state and county law to protect life and limb. Those actions may include appropriately obtained and properly enforced orders to vacate the camp during an immediate peril to health or safety.
Any such action, however, can have no collateral estoppel or res judicata effect on the Board‘s order. (Vargas, supra, 22 Cal.3d at p. 916.) That order implicitly includes the command to maintain the housing in habitable condition at least until the growers reach agreement or good-faith impasse with the union about its future. (Ante, fn. 24.) In any enforcement proceeding (see
Petitioners’ challenges to the Board‘s decision and order lack merit. Let a decree issue enforcing the order of the Board in accordance with the views expressed in this opinion.
Broussard, Acting C. J., Mosk, J., Kaus, J., Reynoso, J., and Spencer, J.,* concurred.
RICHARDSON, J.—I respectfully dissent.
My review of the record in this case convinces me that the Agricultural Labor Relations Board (Board) failed to give proper credence to the unimpeached and uncontradicted testimony of Larry Harris, president of petitioner Riverbend Farms. (See Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 728 [175 Cal.Rptr. 626, 631 P.2d 60].) Harris’ testimony demonstrated that petitioners had legitimate and substantial business justifications for replacing the employees of the unprofitable predecessor grower, NPMS. Accordingly, the Board erred in rejecting Harris’ justifications as “superficial, unfounded and contradictory.” There was absolutely no evidence that petitioners’ actions were prompted by any antiunion motive.
I will not repeat the evidentiary facts which disclosed petitioners’ justifications as most of those facts are described in the majority opinion. Because the factual issues raised herein are of no legal importance to anyone but the parties to this litigation, a hearing in this case was improvidently granted, being unnecessary to secure “uniformity of decision” or to settle “important questions of law.” (Rule 29(a), Cal. Rules of Court; see Martori Brothers, supra, 29 Cal.3d at pp. 731-732 [conc. opn. by Newman, J.].)
I would vacate and set aside the Board‘s order.
Petitioners’ applications for a rehearing were denied November 16, 1983. Bird, C. J., did not participate therein. Richardson, J., was of the opinion that the applications should be granted.
*Assigned by the Chairperson of the Judicial Council.