TRI-FANUCCHI FARMS v. AGRICULTURAL LABOR RELATIONS BOARD

Real Party in Interest, United Farm Workers of America, Answer Brief on the Merits

Cal.February 17, 2016

Case No. S227270 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TRI-FANUCCHI FARMS, Petitioner and Respondent, “ SUPREME COURT AGRICULTURAL LABOR RELATIONS BOARD, m : lo f- i) Petitioner and Respondent, FEB 17 2016 UNITED FARM WORKERSOF AMERICA, Fray 1K A Mey bee . . X : Lo U t e f , Real Party in Interest. S AFER wlerk Deputy After a decision by the Court of Appeal, Fifth Appellate District, Case No. F069419 Affirming in part a decision of the ALRB [Jn re Tri-Fanucchi Farms (2014) 40 ALRB No.4] COMBINED ANSWEROF UNITED FARM WORKERS OF AMERICA TO BRIEFS ON THE MERITS BY TRI-FANUCCHI FARMS AND ALRB MARIO MARTINEZ (SBN 200721) MARTINEZ AGUILASOCHO & LYNCH, APLC P.O. Box 11208 Bakersfield, Ca. 93389-1208 Tel: (661) 859 - 1174 Fax: (661) 840 - 6154 email: mmartinez@farmworkerlaw.com Counsel for United Farm Workers of America ee gS Case No. 8227270 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TRI-FANUCCHI FARMS, Petitioner and Respondent, Vv. AGRICULTURAL LABOR RELATIONS BOARD, Petitioner and Respondent, UNITED FARM WORKERSOF AMERICA, Real Party in Interest. After a decision by the Court ofAppeal, Fifth Appellate District, Case No. F069419 Affirming in part a decision ofthe ALRB [Jn re Tri-Fanucchi Farms (2014) 40 ALRB No.4] COMBINED ANSWEROFUNITED FARM WORKERSOF AMERICA TO BRIEFS ON THE MERITS BY TRI-FANUCCHI FARMS AND ALRB MARIO MARTINEZ (SBN 200721) MARTINEZ AGUILASOCHO & LYNCH, APLC P.O. Box 11208 Bakersfield, Ca. 93389-1208 Tel: (661) 859 - 1174 Fax: (661) 840 - 6154 email: mmartinez@farmworkerlaw.com Counsel for United Farm Workers ofAmerica TABLE OF CONTENTS TABLE OF AUTHORITIESooo.occccs:_eanshotceeicsnsacsssvcseteosecteteetesmsteereiv INTRODUCTION seubucectsstsseuseasusssevigestseessusiesece 1 BACKGROUND 4 UFW’s POSITION ON THE ISSUES IN THIS CASE | 9 STANDARD OF REVIEW 11 ARGUMENT ceecssesesinsenseservsen | _— L3 L The Court OfAppeal Erred by Overturning the ALRB’s Award ofMakewhole Relief ooo cccccccccsscoesovssecsveccsecceseecoes 13 A. Makewhole Relief Plays a Vital Role in Protecting Agricultural Employees cccccccssssssncsssscscesseoscosssteeeces 13 B. The Court of Appeal Failed to Properly Defer to the ALRB's Expertise and Interpretation of the Act. 16 C. The Court OfAppeal's Decision Undermines The Primary Authority Of The ALRB To Enforce The ALRA 9 D. The Court of Appeal’s Denial of Makewhole Conflicts With its Own Conclusion that Prior Judicial Decisions Resolved the “Abandonment”Issue 24 E. The Court of Appeal's Decision Rewards Tri-Fanucchifor Litigating and Violating the Law, at the Expense of its Employees... The Court OfAppeal Improperly Accepted Fanucchi's Allegations Of Abandonment As TrueeReREENENEne The Court of Appeal Correctly Ruled That Employers May Not Refuse to Bargain With a Certified Union___ 27a ainne ewan oheaeRwEr en OMepsegebaainnn wegen eeeenewerdeterseeeeerers ey A. The ALRA Expressly Prohibits Refusals to Bargain ececcreseoceecceecueeueeseeeeoees33 B. The ALRA Provides Only Two Statutory Bases for a Union to be Decertified__ 34 C. Employers Can Have No Role in the “Protection” ofEmployee Rightsoooccccescssccceesectecsssd D. The History of the ALRA and ALRB Decisions Do Not Support Recognition of an Abandonment Defense 1. This Court's Decision in Englund vy. Chavez Does Not Support Fanucchi's Position...__ The ALRB's Bruce Church and Dole Fresh Fruit Decisions Reject The Abandonment Defense, Existing Case Law Does Not Support an AbandonmentDefense The Fifth DCA Properly Applied the F & P Growers Decision The ALRB's Interpretation of the Act Was Accepted by the Legislature il 238 38 4] 46 wheenneanareaeeKeeeee E. Under the ALRA,a Union Certification Cannot Be Forfeited,coeeeeueeeutueess54 CONCLUSION. eavenenee: . _ smccrecteseusna$7 CERTIFICATE OF WORD COUNT__. . 58 til TABLE OF AUTHORITIES FEDERAL CASES Auciello Iron Works vy. NLRB (1996) 517 US.78)eeeeeceepeaceenecrersavescvenseeevarersreeensees 1 Auto Workers v. NLRB (Ex-Cell-O-Corp.) (D. C. Cir. 1971.) 449 F.2d 1046. ceceseasese sess 2 Int'l. Union ofElectrical, Radio and Machine Workers v. NLRB (D.C. Cir. 1970) 426 F.2d 1243occsccssnsesssessesvestenesssesesssesseeeee 13, 14, 33 NERB v. American Nat'l. Ins. Co. (1952) 343 U.S. 395nase eeneeaeees 33 Steele v. Louisville & Nashville Railroad Co, (1944) 323 U.S.192 eectcseeseee 55 STATE CASES Adamek & Dessert, Inc. v. ALRB ALRB v, Superior Court (Gallo Vineyards) (1996) 48 Cal.App.4th 1489. secspovtnennsuvessesenst _ I, 18 ALRB y. Superior Court (Pandol & Sons} (1976) 16 Cal3d 392oooccsssssessececssvacecsctssttansivasaseeatenneccepovesscussessievesiarasmval CalFed. Savings & Loan Assn. v. Los Angeles (1995) 11 Cal.BADcceccceetsececeeeesee . 34 Cardinal Distributing Co. v. ALRB (1984) 159 Cal.App.3d758) . 12 Englund. v. Chavez (1972) 8 Cal.3d 572 ce shcecbuituctativtcss tes 38, 39, 40ween eeeenetinmee! F&P Growers Assn. v. ALRB (1985) 168 Cal.App.3d 667, _. ___passim iv George Arakelian Farms, Inc. v. ALRB (1989) 49 Cal.3d 1279aeaeepnseecieesetsaptavevevnececee:23, 27, 28 George Arakelian Farms v. ALRB (1980) 111 CabApp.3d258ceceencssteeteecesenstesuemeenseepesne24 Gibson v. Unemployment Insurance Appeals Bd. (1973) 9 Cal3d494eeneeeecnceenederepevgeegeneesengeentucnaeqrenensergemenpentanee51 Harry Carian v. ALRB (1984) 36 Cal.3d 654_ 12, 19, 40 Hess Collection Winery v. ALRB (2006) 140 Cal. App. 4th 1584. Highland Ranch v. ALRB (1981) 29 Cal.3d 848 24 1] Holtville Farms, Inc. v. ALRB (1985) 168 Cal.-App.3d 388__ James v. Marinship Corp. (1944) 25 Cal.2d 721, J.R: Norton Co. v. ALRB (1979) 26 Cal.3d 1 J. R..Norton Co. v. ALRB 2,3 55 passim 24 (1984) 162 Cal.App.3d 692... Kaplan's Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60. Karahadian Ranches v. ALRB (1985) 38 Cal.3d 1 nes ssoanecsanensssseesesnanee Lindeleafv. ALRB (1986) 41 Cal.3d 861. 20, 55 12,19 50 Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721 51, 54 Montebello Rose, (1981) 119 CabApp.3diocceccccseesessecssssecseressessessesessesteceensseseeseeasaenpassim Pacific Legal Foundation v. UnemploymentIns. Appeals Bad. (1981) 29 Cal.3d LO)cecessecnessueseesssnesnessmesneereansetesennes24 Perry Farms, Inc. v. ALRB (1978) 86 Cal.App.3d 44occcccscssccssecanssentennsenscsnopecessteeusttuassssestetsiateenee14 Rivcom Corp. v. ALRB (1983) 34 Cal.3d 743 staan 16, 29 Rojas v. Superior Court (2004) 33 Cal.4™ 407. cevescecsesetstventanstee34 San Diego Nursery v. ALRB (1979) 100 Cal.App.3d 128 cscs cescscemal L Sandrini Bros. v. ALRB (1984) 156 Cal-App.3d 878 eeeeees 12 Tex-Cal LandManagement Co. v. ALRB (1979) 24 Cal.3d 335_. veeeneee 11, 18, 20, 23 Thornton v. Carlson (1992) 4 Cal.App.4th 1249 . | 51 Tri-Fanucchi Farms v. ALRB (2015) 236 Cal.App.4th 1079 seuasttesboncs - passim Tri-Fanucchi Farms v. ALRB (Nov. 21, 1987, F008776) (nonpub. OpM.).oocascsescucseecesneeee 6, 22, 27, 28 UFWv. Superior Court (1977) 72 Cal.App.3d 268.ocinsssssssessisssensseseeoetsnnsinesatnsnitenestgietinancn2a 23 William Dal Porto & Sons, Inc. v. ALRB (1987) 191 Cal.App.3d 1195.0. — 30 ALRB CASES Adam Dairy (1978) 4 ALRB No. 24. . oeeereeeesasseeendy 9,12, 15 vi Arnaudo Bros., LP (2014) 40 ALRB No.30occeceusceteeeseveevevesecssivasensvueeusneecen:35, 44, 46 Bruce Church, Inc. (1991) 17ALRBNo.icsussensetsusesssuessenuvecpeesonenneces 35, 42 Cattle Valley Farms (1982) 8 ALRB No. 240teensssnepcevisierennsannanmuiscosngieledipbjarcilibontai34 Dole Fresh Fruit Co. (1996) 22 ALRB No.40 oeccccsueeseeceens passim F&P Growers Assn. (1983) 9 ALRB No. 22.000 __.....passim Giumarra Vineyards Corp. (2006) 32 ALRB No.5. §3 Joe G. Fanucchi & Sons/Tri-Fanucchi Farms (1986) 12 ALRB No. 8. passim Kaplan's Fruit, (1977) 3 ALRB No.28. _... 46, 47 Lu-Ette Farms (1982) 8ALRBNo.91_ 35, 43 Nish Noroian Farms (1982) 8 ALRB NO. 25ooooccccsctcyscosssesssssescctsvecscasserenetstecentvessubteteecstceee 5, 35, 48 Perry Farms, Inc. (1978) 4 ALRB No. 25.0. 14 Pictsweet Mushroom Farms (2003) 29 ALRB No.3... 35 San Joaquin Tomato Growers, Inc. (2011) 37 ALRB NO.5cccccccaccscessusssssvcsesnsnusecestngnisssueavessnsss nusveseave 35 Tri-Fanucchi Farms (2014) 40 ALRB No. 4. 3 Vil me gR My ge ee Ventura County Fruit Growers (1984) 10 ALRB NO, 45cicccssececsuncecscouscsscssusecstnesssosevspessaneessaees35,45 STATUTES Cal. Labor Code:§ 115 et-seq. 39 Cal. Labor Code § V140.2osccccsecreseseeneenteteeeessauduhebotttaatsansoem55 Cal. Labor Code § 1142 sesenuaes 13, 29, 33 Cal. Labor Code § 1148so sobdspetcettssrucsssiiesapiteseerenes 13,33 Cal. Labor Code § 1153. 32 Cal. Labor Code § 1153(a) 33, 34 Cal. Labor Code §1153(e)...... — 33, 34 Cal. Labor Code § 1153(f)., 40 Cal. Labor Code § 1154(c)., sentence es) Cal. Labor Code § 1156.3(a)-(€).00 34 Cal. Labor Code § 1156.3(0) cectpeecesetteseseestecetesartnseees53 Cal. Labor Code § 1156.3(h).,... 4 Cal. Labor Code § 1156.3(h)(1) Jl Cal. Labor Code § 1156.3(h)(2)___. §1 Cal. Labor Code § 1160.20 ceccecosectepsusecestseveveceneerseneeenss32 Cal. Labor Code:§ 1160.3. 2, 15 Cal. Labor Code 1164 et seq... wel, 52 Cal. Labor Code 1164.11 3 villi i m e i . SS AE RR TH ES Si ro c s i ha et S A B R E STATE REGULATIONS 8 Cal. Code Regs. §3395 et Seq.neccccaeesecssvenenerssstavssanensreeeewoe.7 OTHER Senate Bill No. 1156 (2001-2002 Reg. Sess.) pp. 7-8 ccc cccecccscvsscaveneesseseees voeceseetieececes§2 Senate Bill No. 2596 (2001-2002 Reg. Sess.) pp. 6-7...covsoessoeesnesstauennertinesitaviesustersitetinnseesanee92 Senate Bill No. 126, Senate Floor Analysis, (2011-2012 Reg. Sess.) Sept.9, 201], p.7ccceccecteneceseceesesesaneenees53 ix Pursuant to California Rule of Court 8.520(a), Real Party in Interest United Farm Workers of America ("UFW") submits this combined answer brief on the merits to the Opening Briefs filed by Tri-Fanucchi Farms(“Tri- Fanucchi” or “Fanucchi”) and the Agricultural Labor Relations Board ("ALRB"or "Board"). INTRODUCTION Tri-Fanucchi paintsitself as the guardian of its employees’ rights, defending the rights of farmworkers who-- in its view -- are unable to defend themselves. Butthe long history of Tri-Fanucchi’s refusals to engagein collective bargaining demonstrates that, over the course of four decades, Tri-Fanucchihas repeatedly violated the law to undermineits employees’ choice of union representation and collective bargaining. The employer's paternalistic and distorted arguments here highlight that Tri- Fanucchi is simply a wolf in sheep's clothing, trampling on its employees’ rights in the name of "protecting" them. As explained bythe nation’s high court, courts are “entitled to suspicion when faced with an employer’s benevolenceas its workers’ champion against their certified union.” Auciello Iron Works v. NLRB (1996) 517 U.S. 781, 790. Nowhereis that principle more applicable than in this case, in which Tri-Fanucchi repeatedly claimsthat it is helpingits employees by refusing to engage in collective bargaining with their certified representative. The ALRB,the expert agency created to enforce the Agricultural Labor Relations Act (“ALRA”), issued a sound and reasonable decision finding that Tri-Fanucchi again violated the ALRA whenit refused to bargain with the UFW. Based onthis clear violation of the ALRA,the Board properly awardedrelief in the form of a "makewhole” award to Tri- Fanucchi’s employees. By contrast to the National Labor Relations Act (“NLRA”), which has no makewhole remedy, the ALRA providesthe Board with authority to order that employees be “made whole” for “loss resulting from an employer's refusal to bargain”with a union selected byits employees. Lab. Code § 1160.3; Holtville Farms, Inc. v. ALRB (1985) 168 Cal.App.3d 388, 390; cf Auto Workers v. NLRB (Ex-Cell-O-Corp.) (D. C. Cir. 1971.) 449 F.2d 1046 (affirming NLRB denial of union’s request for “affirmative compensation” or make whole for employer’s refusal to bargain).’ “Makewhole”is an attempt to compensate employees for the lost wages and other benefits they would have received under a collective bargaining agreement, and is determined by calculating the amount of additional wages and benefits employees would have earned had they ' The adoption of the makewhole remedyin the ALRA was motivated by the inadequacy ofNLRA's remedies for refusals to bargain. See Adam Dairy (1978) 4 ALRB No.24 at 4-5. In particular, employers were able, by refusing to bargain, to weaken the certified union and avoid paying out collective bargaining benefits, thus denying employees their collective bargaining rights under the ALRA.Jd. worked under a union contract during the period of bad faith bargaining. Holtville Farms, supra,168 Cal.App.3d at 391-92. In light ofthe Board's decades-long precedentrejecting an employer’s refusal to bargain based on the assertion of an abandonment "defense," an Administrative Law Judge and the Board foundthat Tri- Fanucchi had no valid basis for refusing to bargain with its employees’ certified representative. Tri-Fanucchi Farms v. ALRB (2015) 236 Cal.App.4th 1079 at 1087 (Rev. Granted and Op. Superseded by 7ri- Fanucchi Farms v. ALRB, Aug. 19, 2015); Tri-Fanucchi Farms (2014) 40 ALRB No.4, at 7-9, 16-20 (Certified Record at 394-396; 403-407) (hereafter "CR"). Under the standard announced by the Board in F&P Growers Assn. (1983) 9 ALRB No.22, and affirmed by a court of appealin F&P Growers Assn. v. ALRB (1985) 168 Cal.App.3d 667, the Board considered whether Tri-Fanucchi's position furthered the polices and purposes ofthe Act. CR 405. Examining the employer’s proffered justification for its refusal to bargain, the equitable arguments against makewhole, and the facts and circumstances of the case, the Board awarded makewhole. Tri-Fanucchi Farms, supra, 236 Cal.App.4th. at 1087-88; CR 405-407. The Court ofAppeal erred by overturning this award, and Tri- Fanucchi’s defense of the Court of Appeal’s ruling on this issueis unpersuasive, Equally unpersuasive is Tri-Fanucchi’s argument for overturning decades ofprecedent holding that employers cannot refuse to bargain with their employees’certified representative based on an “abandonment” defense. As will be shown, the ALRA requires that agricultural employers not have any role whatsoever in their employees' choice about union representation: “The clear purpose of the Legislature is to preclude the employer from active participation in choosing or decertifying a union, and this certainly overrides any paternalistic interest ofthe employer..." F&P Growers Assn., supra,\68 Cal.App.3d at 678. The Legislature relied on that precedent in amending the ALRA. As such, once employees have elected a union representative, the union may be decertified only through another employee vote. BACKGROUND In one of the UFW’searliest election victories after passage ofthe ALRA in 1975, the UFW was certified as the bargaining representative of Tri-Fanucchi's agricultural employees in 1977 after a secret-ballot election. Tri-Fanucchi Farms, supra, 236 Cal.App.4th at 1083. After the certification, Tri-Fanucchi refused to bargain, claiming that it intended to engage ina "technical refusal to bargain" to challenge the validity of the election. See Joe G. Fanucchi & Sons/Tri-Fanucchi Farms (1986) 12 ALRB No.8 at 2. However, after the UFfiled an unfair labor practice charge (“ULP”) with the ALRB alleging Tri-Fanucchi wasviolating the 4 law, Tri-Fanucchi agreed to bargain and negotiations began. Jd. Between May 1979 and July 1981, there was a hiatus in bargaining. Tri-Fanucchi Farms, supra, 12 ALRB No.8, at 2. When UFW requested to resume bargaining in 1981, Tri-Fanucchi refused, asserting that it had conducted a poll of employees and no longer believed that UFW enjoyed majority support of its employees. /d., at 2-3. UFWfiled another charge against Fanucchi, but despite the Board’s issuance ofNish Noroian Farms (1982) 8 ALRB No. 25, holding that employers could not utilize employee polls indicating a loss of majority support to refuse to bargain with a certified union, the ALRB Regional Director dismissed UFW’s charge on May 17, 1982. Tri-Fanucchi Farms, supra, 12 ALRB No.8, at 2-3. On April 19, 1984,after a lapse ofnearly two years, the UFW again requested collective bargaining. On May 2, 1984, Tri-Fanucchi declined the Union's request for negotiations based on its 1981 employeepoll and its new claim that UFW had “abandoned”the bargaining unit. Jd, at 2-3; Tri-Fanucchi, supra, 236 Cal.App.4th at 1085. The Board rejected these defenses in. a 1986 decision and awarded bargaining makewhole pursuant to Labor Code section 1160.3. See 7ri- Fanucchi, supra, 236 Cal.App.4th at 1085-86. Fanucchi appealed the Board’s 1986 decision, and the Fifth District Court of Appeal upheld the Board's decision, including the makewhole award. Although that 1987 decision was not published, in its May, 2014 5 decision the Fifth DCA took judicial notice of that decision. Tri-Fanucchi, 236 Cal.App.4th at 1086, fn. 2; Tri-Fanucchi Farms v. ALRB (Nov.21, 1987, F008776) (nonpub. opn.). The 1987 Fifth DCA decision found that Tri-Fanucchi's abandonment defense “was not compelling” because “Union inactivity alone does not mandate a finding of abandonment.” Tri- Fanucchi Farms v. ALRB, supra, at 9 (Nov. 21, 1987, F008776). The Court ofAppeal further held that “by requesting negotiations, the Union indicated it was active . . . [and] [t]hus, the Union had resumedits role by the time Fanucchi questionedits status.” Jd. Thus, Tri-Fanucchi was already found in 1987to haveillegally refused to bargain with UFW based on a legally meritless “abandonment” defense and wasorderedat that time to provide makewholerelief. After the Court ofAppeal's decision in 1987, Tri-Fanucchi indicated its willingness to bargain with the UFW. Tri-Fanucchi, 236 Cal.App.4th at 1086. Although Tri-Fanucchi claims here that the UFW did not have any contact with Tri-Fanucchi or Tri-Fanucchi's employees for some 24 years (Tri-Fanucchi, 236 Cal.App.4th at 1086), the Board did not take any evidenceonthat issue,’ and UFW hasalwaysdisputedthatallegation. Indeed, UFW has maintained contact with Tri-Fanucchi’s employees ? ALRB Petition for Review at 9, fn. 3. The Board never took evidence on the Union’s alleged “abandonment” because the Board ruled, correctly, that an employer cannot assert an “abandonment”defense. throughout the 24 year period, has represented Tri-Fanucchi employees on many non-bargaining matters,’ and the 2012 request to bargain was made in an attemptto realize the desires of current Tri-Fanucchi employeesfor a collective bargaining agreement. After UFW requested information and made another formal request to bargain in 2012, Tri-Fanucchi again refused to bargain, claiming it was engaging in a “technical refusal to bargain” to challenge UFW’sstatus as the bargaining representative. Tri-Fanucchi, 236 Cal-App.4th at 1086. Although its abandonment claim had already been rejected by the Fifth DCAin 1987 as legally meritless, Fanucchi once again asserted the same defense in 2012. Tri-Fanucchi, supra, 236 Cal.App.4th at 1085-87. Moreover, this defense had been rejected by the ALRB in numerous decisions reaching back decades in the intervening period, as Tri-Fanucchi was awate. /d., at 1087; CR 394-396. In light of the Board's well- established precedent regarding abandonment, an ALJ and the Board found that Tri-Fanucchi had no valid excuse for refusing to bargain with its 3 Tri-Fanucchi employees have been involved in UFW'slegislative efforts . to improve their wages and working conditions. For example, they were & involved in UFefforts to push for historic heat regulations (8 Cal. Code 3 Regs. § 3395 et seq.), giving farmworkers the right to drinking water, shade, and paid rest periods during periods ofhigh heat; they have been involved in legislative efforts to improve the ALRA,including the 2002 Mandatory Mediation and Conciliation law (Cal. Lab. Code 1164et seq.), and have been involved in numerous other non-bargaining UFefforts 2 over the past 25 years. 2 employees' certified representative and awarded the bargaining unit employees makewholerelief. Jd, at 1087; CR 394-396; CR 403-407. The Court of Appealaffirmed the Board's rejection ofthe abandonmentdefense asit applies to “normal bargaining” and affirmed the Board's conclusion that Fanucchi's refusal to bargain violated the ALRA. Tri-Fanucchi, supra, 236 Cal.App.4th at 1085, 1097-98. Nonetheless, the Court ofAppeal reversed the Board's remedial order to award makewhole relief essentially disagreeing with the way the Board applied the F &P Growers makewhole standard. Jd., at 1097-98. The Court ofAppeal stated that the Board awarded makewhole "solely" based upon its conclusion that Tri-Fanucchi's assertion ofthe abandonment defense did not further the policies and purposes ofthe ALRA,a conclusion that the Court ofAppeal characterized as "clearly wrong." /d., at 1097. Instead, the Court ofAppeal found that because there had been no published appellate decision on the "specific issue" of abandonment, the litigation of the issue served the beneficial purpose of "clarifying and/or confirming" the law and furthered the "broader purposes of the ALRA to promote greater stability in labor relations... " Id., at 1097-98. The Court of Appeal therefore concluded that Tri-Fanucchi’s employees should not have been made whole for their employer’s illegal refusal to bargain. UFW’s POSITION ON THE ISSUES IN THIS CASE The ALRB petitioned for review of the Court of Appeal’s reversal of its makewhole award, while Tri-Fanucchi petitioned for review ofthe Court of Appeal's decision on the abandonment issue. This Court granted review of both petitions on August 19, 2015. The ALRB’spetition for review raises two related questions: (1) whether the Court of Appeal exceededits authority by failing to afford deference to the ALRB’s remedial ““makewhole”order; and (2) whether Tri-Fanucchi’s refusal to bargain furthered the policies and purposes of the ALRA. ALRB Petition for Review,at 1-2. Aswill be discussed, the California Legislature adopted the makewhole remedy to combat the prevalent problem faced under the NLRA that employers routinely avoided bargaining to weaken thecertified union and to avoid paying out collective bargaining benefits. See Adam Dairy (1978) 4 ALRB No.24 at 4-5; J.R. Norton Co. v. ALRB (1979) 26 Cal.3d 1, 30 (“dilatory tactics after a representation election” undermine the statutory right to collective bargaining and “substantially impair the strength and support of a union.”). Rather than remedying Tri-Fanucchi's illegal conduct, the Court ofAppeal's reversal of the ALRB's makewhole decision rewards Tri-Fanucchi for violating the law and encourages other employers to do so. The Court ofAppeal plainly disregarded the deferential standard of review to be accorded the ALRB,as the expert 9 administrative agency in charge of enforcing the ALRA. Accordingly,this Court should overturn the lowercourt's erroneous decision on the makewhole award. Tri-Fanucchi's petition for review seeks reversal of the Court of Appeal’s decision that “abandonment” cannotbe raised as a defense to the duty to bargain. First, Tri-Fanucchi claimsthat, from a policy perspective, this Court should permit employers to protect employee rights under the ALRA;second, it claims the history ofthe ALRA and early ALRB cases support the assertion of an abandonment defense;third it argues that existing published case law supports an abandonmentdefense; andfinally Tri-Fanucchi argues that a certification is a state granted monopoly or franchise that should be revocable through employeraction. Aswill be explained, Tri-Fanucchi's arguments are yet another attempt to nullify its employees' collective bargaining rights. Tri- Fanucchi's refusal to bargain is not in furtherance of its employees' rights; rather, Tri-Fanucchi has never accepted its employees’ desire for union representation. Its arguments have no support in the text ofthe ALRA,the history of the Act, or in any published state or ALRB decisions. Moreover, the Legislature has relied on the precedent holding that an employer cannot raise as an abandonment defense in subsequent amendments to the ALRA. Accordingly, the Court of Appeal’s decision on the abandonmentissue should be affirmed. 10 STANDARD OF REVIEW. While the courts have a duty to ensure that the ALRA is interpreted properly (see ALRB v. Superior Court (Pandol & Sons) (1976) 16 Cal.3d 392), the Board's decisions are entitled to deference because the Legislature entrusted the Board as the expert agency with primary enforcement jurisdiction over claims arising under the ALRA. See, e.g., Tex-Cal Land Management Co. v. ALRB (1979) 24 Cal.3d 335, 346 (ALRB is "one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect."); ALRB v. Superior Court (Gallo Vineyards) (1996) 48 Cal.App.4th 1489, 1506 (“The ALRB is the agency entrusted with the enforcement of the Act andits interpretation should be given great respect by the courts and followedif not clearly erroneous.”); HighlandRanch vy. ALRB (1981) 29 Cal.3d 848, 858-62 (courts must give “great weight” to the ALRB’sinterpretation ofthe Act); San Diego Nursery v. ALRB (1979) 100 Cal.App.3d 128, 140 (same). With respect to the issue ofthe ALRB's ordered remedies, this Court has remarkedthat "the Legislature plainly intended to arm the ALRB with” not only “the full range of broad remedial powers traditionally exercised by a the NLRB,"but that "the drafters ofthe ALRA intended to broaden, not diminish, the ALRB 's remedial authority.” Highland Ranch, supra, 29 li Cal.3d at 865. Indeed, “the power to fashion and order backpay and other remedies is vested in the expert regulatory agency alone, not in the courts of the state.” Sandrini Bros. v. ALRB (1984) 156 Cal.App.3d 878, 885. In light of the Board’s broad authority to remedy unfair labor practices, the Board’s remedial orders are to be upheld “unless it can be shownthat the orderis a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act.” Karahadian Ranchesv. ALRB (1985) 38 Cal.3d 1, 16; Harry Carian v. ALRB (1984) 36 Cal.3d 654, 674 (same).* The rationaleforthis rule is that "the relation ofremedy to policy is peculiarly a matter of administrative competence..." Cardinal Distributing Co. v. ALRB (1984) 159 Cal.App.3d 758, 778, citing Jasmine Vineyards, Inc. v. ALRB (1980) 113 Cal.-App.3d 968, 982-983. "[Courts] must not enter the allowable area of the Board's discretion and must guard against the dangerof sliding unconsciously from the narrow confines of law into the more spacious domain ofpolicy." Cardinal Distributing Co., Id., at 778. * Wepreviously noted the California Legislature's clear purpose in providing remedies to farmworkers that were denied to workers under the NLRA,throughthe provision ofthe "makewhole” remedy. See supra, at 2- 3, fn.1, citing Adam Dairy (1978) 4 ALRB No.24at 4-5. 12 ARGUMENT I. The Court OfAppeal Erred by Overturning the ALRB’s Award ofMakewhole Relief A. Makewhole Relief Plays a Vital Role in Protecting Agricultural Employees Labor Code section 1142 makesit the state's policy to "encourage and protect" the right of agricultural employeesto full freedom of association, "to negotiate the terms and conditions of their employment" and "to be free from the interference, restraint, or coercion of employers .., for the purpose of collective bargaining..." Lab. Code § 1142. The obligation of collective bargaining "is the core ofthe Act, and the primary meansfashioned by Congress [and California] for securing industrial peace." Int. Union ofElectrical, Radio and Machine Workers v. NLRB (D.C. Cir. 1970) 426 F.2d 1243, 1249,citing NLRB v. American Nat'l. Ins. Co. (1952) 343 U.S. 395, 402-404; see also, Lab. Code § 1142 .° "Enforcementofthe obligation to bargain collectively is crucial to the statutory scheme." NLRB vy. American Nat'l. Ins. Co., supra, 343 U.S. at 402. Shortly after passage of the ALRA,this Court recognized the pernicious effect of employer delays, holding that when an employer engagesin "dilatory tactics after a representation election, his action may ° The ALRB is directed bystatute to follow "applicable precedents of the National Labor Relations Act." Lab. Code § 1148. 13 substantially impair the strength and support of a union and consequently employees'interest in selecting an agent to represent them in collective bargaining," thus undermining the statutory right to collective bargaining. JR. Norton Co., supra, 26 Cal.3d at 30. When an employerrefuses to bargain, "it commits an act which strikes at the very heart of the system of labor-managementrelations which the Legislature sought to create. It has thereby deprived the employees of the statutorily created right to be represented by their Board-certified agent in the negotiation of wages, hours, and other terms and conditions oftheir employment." J.R. Norton, Id. at 28, quoting Perry Farms, Inc. (1978) 4 ALRB No.25,at 10; see also, F & P Growers, supra, 9 ALRB No.22,at 8 ("an employer's outright refusal to bargain, like a unilateral change in working conditions, constitutes a per se violation ofits duty to bargain in good faith. Unlike some unilateral changes however, refusals to bargain are final and singularly destructive ofthe bargaining relationship.”). Without a makewhole remedy, the employer's violation of law "reaps" "avoidance of bargaining which he considers an economicbenefit." Int'l. Union ofElectrical, Radio and Machine Workers, supra, 426 F.2d at 1249,citing Montgomery Ward & Co. v. NURB (6th Cir. 1965) 339 F.2d 889, 894. Indeed, "[e]mployee interest in a union can wane quickly as 6 Perry Farms was reversed on other grounds by Perry Farms, Inc. v. ALRB (1978) 86 Cal.App.3d 448, but the language quoted wascited with approval by the J.R. Norton Court (see 26 Cal. 3d at 28,30). 14 working conditions remain apparently unaffected by the unionorcollective bargaining.” J.R. Norton, supra, 26 Cal.3d at 30. Therefore, without a makewhole award, an employer can "reap a second benefit from his original refusal to comply with the law: he may continue to enjoy lower labor expenses after the order to bargain either because the unionis goneor because it is too weak to bargain effectively." Id., at 30. Accordingly, California sought to "progressively" address the problem under the NLRA that employers were able to refuse to bargain, thereby weakeningthe certified union, while avoiding paying out collective bargaining benefits. Adam Dairy, supra, 4 ALRB No.24 at 4-5. The makewhole remedy was adopted as a protective measure to "reduce the employer's financial incentive for refusing to bargain" andto provide "the salutary purpose of discouraging frivolous election challenges designed to stifle employees' self-organization [citations omitted]." J.R. Norton, supra, 26 Cal.3d at 31. While the Board cannot automatically award makewhole in every case where the employerrefuses to bargain (see .R. Norton, 26 Cal.3d at 9), Labor Code section 1160.3 vests the Board with discretion to award makewhole "when the board deems suchrelief appropriate." Lab. Code § 1160.3. 15 B. The Court ofAppeal Failed to Properly Defer to the ALRB's Expertise and Interpretation of the Act The ALRB challenges the Fifth DCA's reversal of its makewhole order on the groundthat the Court ofAppeal failed to apply the proper deferential standard in reviewing remedial orders. ALRB Opening Brief on Merits at 24-41 (hereafter "ALRB Brief"). The ALRB's position is reasonable and supported by this Court's precedent. The Courts and the Board have developed two standards that guide the Board's analysis in deciding whether to award makewhole. One standard, called the "UR. Norton standard” applies only in cases involving a "technical refusal to bargain," where the employeris challenging the propriety ofthe election certifying a union as its employees' representative. See Rivcom Corp. v. ALRB (1983) 34 Cal.3d 743, 772. When an employer's refusal to bargain is not a technical refusal to obtain judicial review, but instead involves an illegal tactic, the J.R. Norton standard -- which examines good faith and reasonableness of the employer's position-- does not apply. /d., at 772-773. In the non-technical refusal to bargain case, the "F & P Growers standard" applies because “[n]o purpose of the ALRA would be served by insulating [employers] from responsibility for the losses caused by their unlawful failure to bargain.” Rivcom Corp., Id., at 772-773; F & P Gowers Assn. (1983) 9 ALRB No.22 (establishing the standard), aff'd. by F & P 16 Growers Assn., supra,168 Cal.App.3d 667. Under the F & P Growers standard, the Board determines whether makewhole is warranted on a "case-by-casebasis," analyzing "the extent to which the public interest in the employer's position weighs against the harm done to employeesbyits refusal to bargain. Unless the litigation of the employer's position furthers the policies and purposes ofthe Act, the employer, not the employees should ultimately bear the financial risk ofits choice to litigate rather than bargain." F & P Gowers Assn., supra, 9 ALRB No, 22 at 8. The "reasonableness" ofthe employer's litigation posture and the employer's goodfaith do not control underthis standard. Id., at 7. In this case, the Board correctly applied the F & P Growers standard, as acknowledged by the Court of Appeal. Tri-Fanucchi, 236 Cal.App.4th at 1097 ("Here, the Board explicitly followed the standard that was approved in F & P Growers."). Tri-Fanucchi was not engaging ina technical refusal to bargain, because the underlying representation election was no longer in dispute. Tri-Fanucchi, Id., at 1096 ("contrary to Fanucchi's characterization of its actions, the refusal to bargain was not technical (in the J.R. Norton Co. sense) because the validity of the representation election and original certification ofUFW based on that election were notat issue.").’ The Board found that Tri-Fanucchi's 7 Contrary to clearly established case law, Tri-Fanucchi continually characterized its refusal to bargain as a "technical refusal,” knowing that 17 justification for refusing to bargain was its claim that UFW "forfeited"the right to represent the employees becauseofits alleged "abandonment." CR 405. However, this was found by the Board to be "contrary to over 30 years of Board precedent holding that abandonmentis not a defense to the duty to bargain." CR 405. Further, the Board noted that it previously rejected this same defense, asserted almost twenty years earlier by the same employer. CR 405. Based uponthis clear precedent, and on the Board's assessment ofthe entire facts of the case, it found that makewhole was an appropriate remedy. CR 405-07. Asdiscussed supra, a court's review of an ALRB decision must "be given great respect by the courts and followed ifnot clearly erroneous." ALRB vy. Superior Court, supra, 48 Cal.App.4th at 1506; Tex-Cal Land Management Co., supra, 24 Cal.3d 335, 346. This standard is even more deferential when a Board decision concerns a remedial order. An ALRB remedial order is to be upheld “unless it can be shown that the order is a "good faith” and "reasonableness ofthe employer's position" are considered under the J.R. Norton standard, but are irrelevant under the F & P Growers standard. See, e.g., CR 26 (Oct. 19, 2012 Letter from Fanucchi counsel to UFW representative stating that Fanucchi "will engage in a technical refusal to bargain."); Tri-Fanucchi Petition for Review (Cal. Sup. Ct.), at 7 (characterizing its refusal as a "technical refusal to bargain"); ‘Tri-Fanucchi Opening Brief (Cal. Sup. Ct.)at 1 ("TFF maintainsthat this case is unique in that it involves a technical refusal to bargain ..."). It was not until Tri- Fanucchifiled its Answer to the ALRB's Petition for Review thatit finally switched course and concededthat its refusal to bargain was not a "technical" one. Tri-Fanucchi Answer to ALRB Petition for Review July 14, 2015) at 11, fn. 2. 18 patent attempt to achieve ends other than those which canbe fairly said to effectuate the policies of the Act.” Karahadian Ranches, supra, 38 Cal.3d at 16; Harry Carian, supra, 36 Cal.3d at 674 (same). While the Court of Appeal paid lip service to the idea of deferring to the ALRB’s judgment on the makewhole order (see 236 Cal. App. 4th at 1088), the Court ignored the standard of review and overturned the Board’s makewhole order without making the necessary finding that the Board was “patently” attempting to achieve ends other that those which effectuate the purposes of the Act. See Tri-Fanucchi, supra, 236 Cal.App.4th at 1097 ("With all due deference to the Board regarding ALRA policy issues, we believe the Board was clearly wrongin its legal conclusion . .") (emphasis added). The Court's conclusion that the Board's order was "clearly wrong” does not comport with the standard set by this Court for overturning a remedial Board order, which requires that a reviewing court find that the ALRB orderis a "patent attempt to achieve ends other than those which can be fairly said to effectuate the policies ofthe Act.” Karahadian Ranches, supra, 38 Cal.3d at 16; Harry Carian, supra, 36 Cal.3d at 674. C. The Court Of Appeal's Decision Undermines The Primary Authority OfThe ALRB To Enforce The ALRA The ALRB also challenges the Fifth DCA’s decision as undermining the Board's role as the expert agency with primary and exclusive jurisdiction to resolve unfair labor practices and to rule on representation 19 issues. ALRB Brief at 24-26. UFW agrees that overturning ofthe makewhole relief undermines the Board's proper place as the "expert agency" with primary responsibility to interpret the ALRA and enforce the law. In Tex-Cal Land Management, in resolving a broad attack on the judicial authority of the ALRB,this Court recognized the importance of the ALRB as "oneof those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings. . . courts do not possess and therefore must respect.” Tex-Cal Land Management, supra, 24 Cal.3d at 346. Underwell-established preemption principles, the ALRB has primary exclusive jurisdiction over conduct which arguably involves practices covered, protected or prohibited under the ALRA,including remedies for violations. Kaplan's Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60, 68, citing San Diego Unions v. Garmon (1959) 359 U.S. 236. Importantly, preemption principles prohibit courts from deciding issues that are arguably best left to the decision ofthe ALRB. The preemption doctrine serves three critical purposes. It permits the ALRB to resolve issues within its area of expertise; it avoids burdening the courts with matters that are best left to administrative resolution; and it avoids inconsistent adjudications ofthe same issues. In finding that the Board was "clearly wrong”in ordering makewhole, the Court ofAppeal stated that the Board's decision "was 20 based solely on its ... value judgment that Fanucchi's litigation of the abandonmentissue herein... did not further the policies and purposes of the ALRA." Tri-Fanucchi, supra, 236 Cal.App.4th at 1097.° Despite the Court of Appeal taking judicial notice of its own prior unpublished decision awarding makewhole relief against the same employer for refusing to bargain (236 Cal.App.4th at 1086, fn.2) and despite the Court ofAppeal’s recognition that ALRB law in this area was settled (236 Cal.App.4th at 1097), the Court of Appeal reasoned that "no appellate court has (or had) decided the specific issue" and, therefore, that Tri-Fanucchi's litigation of the issue "was reasonably necessary and helpful" to unions and agricultural employers by resulting in a published decision.’ The Court of Appeal thus retreated from its own unpublished decision 20 years earlier, in whichit affirmed the Board's makewhole finding and conclusion that once the Board ’ The Board's decision was notsolely a "value judgment;" rather the Board examined the history of the case, the fact that Fanucchi had asserted "abandonment"in refusing to bargain for the third time, the fact that the Fifth DCA had two decadesearlier rejected the same defense, and the fact that Fanucchi wasasserting a "technical refusal to bargain," when it was not challenging the underlying representation election. * The Court neglected to discuss how a publisheddecision wasbeneficial to the affected farmworkers who have been waiting more than 35 years for a collective bargaining agreement, especially in light of the fact that "the employer, not the employees, should ultimately bear the financial risk of [the employer's] choiceto litigate rather than bargain.” F & P Growers Assn., supra, 9 ALRB No.22,at 8. 21 "had clarified the exclusivity of the decertification process... the employer could claim no public interest in refusing to bargain based on good faith doubt of the Union's majority support, especially while its employees had sought no decertification or rival union election. . . Litigation of the claim .. . could not possibly further the policies and purposes of the ALRA." Tri-Fanucchi Farms, supra, at 11-12 (Nov. 21, 1987, F008776) (nonpub. opn.); Tri-Fanucchi, supra, 12 ALRB No. 8 at 6-7. In requiring that a published appellate decision is necessary to "resolve" an area of law under the ALRA,the Court of Appeal's decision upendsthe role of the Board to resolve disputes, essentially turning the ALRB into a meaningless servant to develop the record on disputes so that appellate courts can pronounce what the "real" body of law shouldbe. "0 Butthis is precisely the result that should be avoided. Asstated by the court in UFW y. Superior Court (1977) 72 Cal.App.3d 268,if appellate courts had the last say in whata settled area of law is "the Board would be replaced by ad hoc determinations by already overcrowdedcourts. The legislative effort to bring order andstability to the collective bargaining process would be thwarted. The work of the Board would be effectively impaired, its decisions similar in impression to that ofa tinkling triangle 10 Given that the Court ofAppeal failed to acknowledgeits prior decision on this issue as having "settled" the abandonment matter -- at least as to this employer-- it is clear that the Court ofAppeal regards only apublished appellate decision as resolving an issue under the ALRA. See Tri- Fanucchi, 236 Cal.App.4th at 1098 ("Therefore, Fanucchi’s advancement of this litigation plainly furthered the broader purposes ofthe ALRA to promotegreaterstability in labor relations by obtaining an appellate decision on this important issue.”) (emphasis added). 22 practically unnoticed in the triumphant blare of trumpets." UFWv. Superior Court (1977) 72 Cal.App.3d 268, 271-272; Tex-Cal Land Management, supra, 24 Cal.3d at 346 (it is necessary to permit the ALRB to perform its judicial functions because if courts took the place ofthe Board, resolution of cases would take place “on a case-by-case basis” and would result in "a prolific source ofthe litigious delay that the Legislature indisputably sought to avoid."); George Arakelian Farms, Inc. v. ALRB (1989) 49 Cal.3d 1279, 1295 (rejecting a "procedural system that encourages successive reviews by appellate courts of questions that were previously decided."). By replacing the Board's makewhole decision with its own findings and requiring a published appellate decision to "settle" an area of law, the Court ofAppeal decision disrupts the schemeestablished by the Legislature for effective resolution of disputes under the ALRA. Indeed, under the Fifth DCA framework, it is easy to imagine employers adding new details in challenges that were never before considered in a published appellate decision, all under the guise of seeking to settle a "disputed" area ofthe law and to "further the purposes of the ALRA." Moreover, this.rationale would encourage growersin different appellate districts to argue that if the appellate court in their district has not issued a published ruling on a subject matter, it is entitled to a challenge the Board's authority under the guise of 23 seeking a published decision from that district.'’ For this reason alone, the Court of Appeal's decision should be overturned,as it would invite endless litigation and delay. In rejecting the Board’s reasoned makewhole order, the Fifth DCA impermissibly substituted its own policy judgmentfor that of the Board. See George Arakelian Farms v. ALRB (1980) 111 Cal.App.3d 258, 282 ("We maynotsubstitute our judgment for that of the Boardin its area of special expertise . . .") citing Abatti Farms, Inc. v. ALRB (1980) 107 Cal.App.3d 317, 333; J. R. Norton Co. v. ALRB (1984) 162 Cal.App.3d 692 (Courts may not substitute theirjudgment for that of the Board on matters within the Board's discretion), citing Pacific Legal Foundationv. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 111. D. The Court of Appeal’s Denial of Makewhole Conflicts With its Own Conclusion that Prior Judicial Decisions Resolved the “Abandonment”Issue In rejecting Tri-Fanucchi’s abandonment defense, the Fifth DCA cited to published appellate decisions decided thirty or more years ago holding that under the ALRA,a union remains“certified until decertified.” Tri-Fanucchi, 236 Cal.App.4" at 1090, 1092. The Court ofAppeal concludedthat “[t]he Board’s position [] on the abandonmentissue as it 't This is precisely the position that Gerawan Farming tookin its cases, arguing to the Fifth DCA that the Hess Collection Winery decision from the Third DCA was wrongly decided. See Hess Collection Winery v. ALRB (2006) 140 Cal. App. 4th 1584. 24 relates to the employer’s duty to bargain is consistent with how California appellate courts have construed the ALRA...an employer’s duty to bargain with the originally certified union continues until that union is replaced or decertified by a subsequent election.” Tri-Fanucchi, supra, 236 Cal.App.4"at 1092 [citing Montebello Rose Co. v. ALRB (1981) 119 Cal.App.3d 1; F&P Growers, supra; Adamek & Dessert, Inc. v. ALRB (1986) 178 Cal.App.3d 970 (underline added; emphasis in original)]. The Court ofAppeal also cited with approval the language in F’ & P Growers that “Fanucchi’s assertion of abandonmentas an alleged defense to its duty to bargain is clearly analogous to the loss ofmajority support defense that was asserted by the employer in F&P Growers. . . In light of the similar nature ofthe case at bench, we believe that the same reasoning applies and the sameresult should follow. Thus, here, Fanucchi was not entitled to refuse to bargain with UFW .....” Tri-Fanucchi, Id., at 1093. (emphasis added). Further, the Fifth DCA agreed with the Montebello Rose court’s conclusion that if a union’s neglect or inaction causes employeesto be dissatisfied with the union,“the appropriate remedy is for the employees to pursue a decertification election.” Jd., at 1092. “So long as the employees can petition for a new election if they wish to remove the union, the employer has no real cause for concern about whetherit is bargaining with the true representative of its employees.” /d., citing Montebello Rose, 25 supra, 119 Cal.App.3d at 28. The Court of Appeal could not reasonably cite to three published appellate decisions and holdthat the Board’s abandonmentdecisions were “consistent with how California appellate courts have construed the ALRA”(236 Cal. App. 4" at 1092) and then, in its makewhole discussion, claim the abandonmentissue was “unresolved”and that there was no published decision on the subject. In particular, the Court ofAppeal's adoption of the “certified until decertified” rule expressedin the appellate decisions in Montebello Rose, F & P Growers, and Adamek & Dessert, Inc. -- decided morethan thirty years ago -- do not square with the Court's reasoning that this was an unsettled area of the law. See Tri-Fanucchi, 236 Cal.App.4™ at 1092 (“The Board’s position [] on the abandonmentissue as it relates to the employer’s duty to bargain is consistent with how California appellate courts have construed the ALRA.”); 236 Cal.App.4" at 1094 (“In light of the existing judicial construction of the ALRA asreflected in the Court ofAppeal decisions noted above, the Board’s position on this issue constituted a reasonable interpretation and application ofthe ALRA.”). Given that the Fifth DCA relied on published decisions in affirming the “certified until decertified” rule and rejecting the abandonmentdefense, its conclusion that there were no published decisions to guide the makewhole issue is without merit. 26 E. The Court of Appeal's Decision Rewards Tri-Fanucchifor Litigating and Violating the Law,at the Expenseofits Employees By denying makewhole to employees, the Court of Appeal decision rewards the employer whoviolated the law, at the expense of employees whoserights the statute is intended to protect. See ALRB Briefat 51-52. This is contrary to this Court's precedent. "[T]he employer, not the affected employees, should ultimately face the consequencesofits choiceto litigate the representation issues rather than bargaining with the employees in good faith." George Arakelian, supra, 49 Cal.3d at 1294-1295, citing F’ & P Growers Assn., supra, 168 Cal.App.3d at 682; see also, F & P Growers Assn., 9 ALRB No. 22 at 8 (same). The employer's abandonmentclaim is another in a longline of illegal actions taken to avoid a collective bargaining agreement with UFW. As discussed supra, the employer refused to bargain at the outset, asserted the abandonment “defense” three times before the ALRB and twotimes before the Fifth DCA,after having been ordered to pay makewhole thefirst time it did so. See Tri-Fanucchi Farms, supra, (Nov. 21, 1987, F008776) (nonpub. opn.); Tri-Fanucchi Farms, supra, 12 ALRB No.8 at 9-10. Indeed, despite claiming that it was engaging in a "technical refusal to bargain” (and insisting that UFW and the ALRB agreeto stipulate it was a "technical refusal") (CR 26, 91-93), the Court of Appeal held that the employer's refusal to bargain was not a “technical” one. Tri-Fanucchi, 236 27 Cal.App.4th at 1096. Moreover, the 1987 unpublished decision from the Court ofAppeal concluded the same. See Tri-Fanucchi Farms v. ALRB, supra, at 10, fn. 5 (Nov. 21, 1987, F008776) ("In the presentcase the refusal to bargain is not technical because the union's election and certification are notat issue."). Therefore, the employer's litigation posture was not a good faith challenge, but a "repetitive litigation tactic" that justifies the imposition of a makewhole order. As explained by this Court in George Arakelian Farms, "elementary concepts ofjustice require that after one has been administratively and judicially determined to be a wrongdoer he must bear the perils and consequences his own wronghascreated. Were weat this late date to determine that imposition of the make- whole remedy would be inappropriate . . . it is likely that [the employer's] employees would continue to suffer because of [employer's] repetitive litigation tactics. Such a result would be inconsistent with the purposes ofthe Agricultural Labor Relations Act... the employer, not the affected employees, should ultimately face the consequencesof its choice to litigate the representation issues rather than bargaining with the employees in goodfaith." George Arakelian Farms, supra, 49 Cal.3d at 1294-1295. Finally to the extent the Court ofAppeal concludedthat its decision to deny makewhole "promotes" the purposes of the ALRA byproviding "greater stability in labor relations" (236 Cal. App. 4th at 1098), the present record does not reveal stable labor relations. Rather, it reveals a history of refusing to bargain by Tri-Fanucchi and rebuffing any collective bargaining efforts made by UFW. At the sametime, the Court's decision ignored two more important purposes of the ALRA:collective bargaining and employee 28 free choice. See Lab. Code § 1142. The record reveals a repetitive pattern by Tri-Fanucchi to avoid bargainingat all costs; the Court's decision does nothing to remedy Fanucchi's repeat offender status. In addition,it is clearly established that "agricultural employees have the exclusive responsibility for exercising and protecting their own free choice underthe ALRA." F & P Growers, 9 ALRB No. 22 at 9 (underline in original); see also, Montebello Rose, supra, 119 Cal.App.3d at 24-25 (employer’s duty to bargain with certified union does not lapse “until such time as the unionis officially decertified”).. There is no “public benefit derived from [Fanucchi’s] refusal, as decertification by the employeesis less disruptive and, as a matter of law, the exclusive approach”to getting rid of a union. F & P Growers, supra, 9 ALRB No. 22.at 10. No purpose ofthe ALRA would be served “by insulating [Fanucchi] from responsibility for the losses causedby[its] unlawful failure to bargain.” See Rivcom Corp., supra, 34 Cal.3d at 772-773 Here, the Court never considered the harm to the employees of having voted for UFW representation and neverrealizing their goal of a collective bargaining agreement because ofthe employer’s repeated refusals to bargain.’ The ALRA's moreimportant goals of free choice and collective bargaining were never considered by the Court. 2 The fact that the Court substituted its judgment for that of the Board is highlighted by the fact that it did not remand the matter to the Board for 29 F. The Court Of Appeal Improperly Accepted Fanucchi's Allegations Of Abandonment As True The Court ofAppeal's results-oriented efforts to shield Tri-Fanucchi from a makewhole awardare further highlighted by the fact that although there is no evidentiary record about UFW's alleged "abandonment,"the Court accepted as true Tri-Fanucchi's allegation thatUFW abandonedthe workers for 24 years, and suggested that a denial of makewholeis an appropriate "punishment" against UFW. There is no dispute that evidence wasnot taken by the ALRB on the question of abandonment. See, e.g., Tri- Fanucchi Opening Brief (Sth DCA)at 6 ("TFF was not afforded an opportunity to present evidence at the ALJ's hearing or present any type of defense .. ."); Tri-Fanucchi Opening Brief at 8 (hereafter “TIFF Brief’) (the Board "refused to allow Fanucchi to have an evidentiary hearing to cross- examine UFW subpoenaed witnesses regarding whether the UFW had completely abandoned it employees during the twenty-four (24) years. . .) (emphasis added); ALRB Petition for Review at 9, fn. 3 ("Because the case was decidedvia dispositive motion, the ALRB assumedthat the facts further proceedings. Ordinarily, ifthe Board errors in a makewhole decision, the matter is remanded to the Board for resolution based on the reviewing court’s decision. See, e.g., J.R. Norton, supra, 26 Cal.3d at 38- 39 (“Because the Board applied the wrong standard. .. the case must be returned to the Board so that it can apply the proper standard.”); William Dal Porto & Sons, Inc. v. ALRB (1987) 191 Cal.App.3d 1195, 1212-14 (“the case ordinarily should be referred to the Board so it may reconsiderits decision.”). 30 R I o R alleged concerningthis period of inactivity were true. . .") (emphasis added). Despite the fact that no evidence was taken on the abandonment issue, the Court's opinion is littered with findings that UFW infact abandonedthe workers at Tri-Fanucchi. For example, the Court stated that "for reasons UFWhas not explained, no bargaining occurred between 1988 and 2012, a period of 24 years.” Tri-Fanucchi, 236 Cal.App.4th at 1083 (emphasis added). The Court also found that Tri-Fanucchi's litigation of the abandonmentissues was "premised on UFW's 24 years of inactivity.” Id, at 1097. Finally, the Court concluded that the courts would clearly be concerned “that a union has apparently disregarded its statutory responsibilities to a bargaining unit for over two decades, as occurred here;” something which the Court characterized as "extreme dereliction." Id, at 1098, fn. 2 (emphasis added). Given that no evidence was taken on the abandonmentissue, it was improperfor the Court ofAppeal to find that UFW in fact abandoned the workers, and to reverse the Board’s makewhole order based on a judgment concerning that error.’? As pointed out by the ALRB inits brief, the Board 3 To the extent that Tri-Fanucchi claims it knows UFW had no contact with its workers, that claim should be rejected as having no evidentiary support. An employer would notbe a in a position to know if the Union was making contact with workers outside oftheir place of employment, unless the employer engaged in unlawful interrogation of its employees. 31 does not have the authority to "punish" the UFW for any alleged abandonment, primarily because that would serve to deprive workers of their collective bargaining rights, and secondarily, because no charge was everfiled against UFW for its alleged abandonment. ALRB Briefat 53- 54,'4 I. The Court ofAppeal Correctly Ruled That Employers May Not Refuse to Bargain With a Certified Union Tri-Fanucchi argues that permitting employers to refuse to bargain by asserting an abandonment “defense” promotes “the fundamental legislative purposes of the ALRA”ofcollective bargaining and employee “freedom of choice.” TFF Brief at 15-22. This claim has no support in the language, purpose, or judicial interpretation of the ALRA. Moreover, the Legislature has amended the ALRA inreliance on clear precedentthat employers cannot assert an abandonment defenseto the duty to bargain. Accordingly, the Court of Appeal was correctin affirming the Board’s decision that Tri-Fanucchi’s refusal to bargain with the certified union was an unfair labor practice. Labor Codesection 1153 makes it unlawful for an employer to interrogate its employees abouttheir unionactivity. '4 The Court’s suggestion that denial ofmakewhole is a proper remedy or punishment for UFW’s “extremedereliction” also ignores the fact that the ALRA can only remedy conduct occurring within six monthsofthe filing of a charge. Lab. Code § 1160.2.("No complaintshall issue based upon any unfair labor practice occurring more than six monthspriorto the filing of the charge with the board. . ."). 32 A. The ALRA Expressly Prohibits Refusals to Bargain It is the state's policy is to "encourage and protect"the right of agricultural employeesto free choice and "to negotiate the terms and conditions of their employment.” Lab. Code § 1142. To promotethis policy, the ALRA expressly prohibits employers from refusing to bargain. Lab. Code § 1142; § 1153(a) and (e). The obligation of collective bargaining "is the core ofthe Act, and the primary means fashioned by Congress [and California] for securing industrial peace." Int'l, Union of Electrical, Radio andMachine Workers, supra, 426 F.2d at 1249; see also, Lab. Code § 1142 .!° Enforcement ofthe obligation to collective bargaining is “crucial to the statutory scheme." NLRB v. American Nat'l. Ins. Co., supra, 343 U.S. at 402. When an employer refuses to bargain with the certified representative of its employees, it "deprives the employeesofthe statutorily created right to be represented by their Board-certified agent in the negotiation ofwages, hours, and other terms and conditionsoftheir employment." J.R. Norton, supra, 26 Cal. 3d at 28; see also, F & P Growers, supra, 9 ALRB No.22,at 8 ("refusals to bargain are final and singularly destructive ofthe bargaining relationship."). The ALRB is directed by statute to follow "applicable precedents ofthe National Labor Relations Act." Lab. Code § 1148. 33 Becausecollective bargaining is the comerstone of the ALRA, Labor Code section 1153(e) makes it an unfair labor practice for an employer“[t]o refuse to bargain collectively in good faith with labor organizationscertified pursuant” to the ALRA. Lab. Code § 1153{(e). Section 1153(e) provides no exceptions that excuse an employer from complying with its duty to bargain. Had the Legislature wanted to provide exceptions to the duty to bargain, it certainly would have done so. Rojasv. Superior Court (2004) 33 Cal.4" 407, 423 (“the Legislature clearly knows howto establish” statutory exceptions“if it so desires.”); Cal Fed. Savings & Loan Assn. v. Los Angeles (1995) 11 Cal.4" 342, 349 (Courts assumethe Legislature knows “how to create an exception if it wished to do so.”). B. The ALRA Provides Only Two Statutory Bases for a Union to be Decertified Undertheplain text ofthe ALRA,there are two exclusive methods by which a union can be decertified: (1) either through a secret ballot election initiated by employees, resulting in the decertification or replacement of a union; or (2) decertification by the Board if a union is found to have violated federal or state anti-discrimination laws. Lab. Code § 1156.3(a)-(e);° § 1156.3(h). The ALRA does not contain any language that permits an employerto initiate a decertification procedure through the 16 Tn Cattle Valley Farms (1982) 8 ALRB No.24, at 7, the Board clarified . that the decertification procedures in Labor Code § 1156.3(a) apply where me there is a certified representative, but no current collective bargaining agreement. 34 assertion of an “abandonment” defense. See Dole Fresh Fruit Co. (1996) 22 ALRB No.4, at 16 (Concluding that the Legislature would have to create an “abandonment”procedure because “[t]he Board does not have authority” to do so). This has been confirmed by both the ALRB’s decisions and appellate court decisions. Underthe Board’s longstanding “certified until decertified” rule, a union continues to enjoy its representative status until it loses this status through a secretballot election. See, e.g., Nish Noroian Farms (1982) 8 ALRB No.25, at 15-16 (“[o]nce a union representative has been certified it remains the exclusive collective bargaining representative of the employees in the unit until it is decertified... The duty to bargain, which springs from certification, will be terminated only with the certification ofthe results of a decertification . . . election where the incumbent haslost”); Dole Fresh Fruit, 22 ALRB No.4, at 15 (rejecting abandonmentdefense and explaining that a “certified bargaining representative[] remain[s] certified until decertified by the employees themselves in either a decertification or rival union election”). '7 17ALRB cases for more than 30 years have rejected various employer "abandonment" defensesin affirming the “certified until decertified” rule. See, e.g., Lu-Ette Farms (1982) 8 ALRB No. 91, at 8; Tri-Fanucchi, supra, 12 ALRB No.8, at 9; Bruce Church, Inc. (1991) 17 ALRB No.1, at 44; Ventura County Fruit Growers (1984) 10 ALRB No.45,at 11-12; Pictsweet Mushroom Farms (2003) 29 ALRB No.3, at 10-11; San Joaquin Tomato Growers, Inc. (2011) 37 ALRB No.5 at p.. 3; Arnaudo Bros., LP (2014) 40 ALRB No.3, at 9-12. 35 The Board’s “certified until decertified” rule has been judicially approved by Montebello Rose, F & P Growers, and Adamek & Dessert. See Montebello Rose, supra, 119 Cal.App.3d at 24-25 (employer’s duty to bargain with certified union does not lapse “until such time as the union is officially decertified”); Adamek & Dessert, supra, 178 Cal.App.3d at 983 (“the company has a duty to bargain with the union until the unionis decertified through a second election."). In F & P Growers Assn., in an exhaustive discussion on the subject, the Court squarely rejected the idea that an employer can have even a peripheral role in deciding whether it should bargain with a union ornot. Its discussion of the issue contains the following conclusions: (1) Differences between the ALRA and NLRA “showsa purpose on the part of the Legislature to prohibit the employer from being an active participant in determining which union it shall bargain with in cases arising under the ALRA.” F& P Growers, supra, 168 Cal.App.3d at 676. (2) “[I] it does appear that the Legislature’s purpose in enacting the ALRA wasto limit the employer’s influence in determining whetherornotit shall bargain with a particular union. Therefore, to permit an agricultural employer to... avoid bargaining with an employee chosen agricultural union indirectly would give the employer influence over those matters in which the Legislature clearly appears to have removed employerinfluence.” Jd., at 676-677. (3) “Our conclusion is consistent with the court’s reasoning in Montebello Rose Co. ... Again the Legislature had shown its purpose was to provide employees, and not employers, a method for changing unions.” J/d., at 677. 36 (4) “the workers may be especially unable to bargain with the employer, without the assistance of a union, andthereis all the more reason for the Legislature to decide to remove the employer from any peripheral participation in deciding whether to bargain with a particular union. To allow the employerto [refuse to bargain] would permit the employerin effect to act as though the union were in fact decertified ... even though under the ALRAit is clear that the employer may notinitiate certification or decertification proceedings.” Jd. Therefore, the employer has no role in challenging a union’s representative status. The Fifth DCA correctly applied the reasoning ofF & P Growers, Adamek & Dessert, Montebello Rose and ALRB precedentin rejecting Tni- Fanucchi’s abandonment defense, finding that “the existing judicial construction of the ALRA asreflected in the Court of Appeal decisions noted above... . constitute[] a reasonable interpretation and application of the ALRA.” Tri-Fanucchi, 236 Cal.App.4" at 1094. Cc. Employers Can Have No Role in the “Protection” of Employee Rights Fanucchi claims that employers should be permitted to stand as protectors for employeerights, arguing that employees are too unsophisticated or lack funding and resources to “disseminate information, organize a decertification drive, and petition for and hold an election.” TFF Brief at 19-22. Fanucchi claimsit is “absurd” to expect employees to pursue a decertification election on their own.. /d., at 19. 37 Fanucchi’s claim has no merit and has been repeatedly rejected by the ALRB and numerous courts. F & P Growers, 9 ALRB No. 22 at 9 ("agricultural employees have the exclusive responsibility for exercising and protecting their own free choice under the ALRA.") (underline in original); Montebello Rose, 119 Cal.App.3d at 28 (“So long as the employees can petition for a new election if they wish to remove the union, the employer has no real cause for concern... .”). As stated by the court in F&P Growers, the Legislature’s “clear purpose” in precluding employers 23. 6¢ “from active participation in choosing or decertifying a union” “certainly overrides any paternalistic interest of the employer” in assertingit is protecting employeerights. F & P Growers, 168 Cal.App.3dat 678. D. TheHistory of the ALRA and ALRB Decisions Do Not Support Recognition of an Abandonment Defense Tri-Fanucchi argues that the history of the ALRA and early ALRB decisions support an employer’s right to assert an abandonment defense. TFF Brief at 22-30. In support of this claim, Fanucchidistorts the holdings in Englund v. Chavez, Bruce Church, and Dole Fresh Fruit, all of which support a contrary position -- that abandonmentis not recognized by the ALRA asa basis to refuse to bargain. 1. This Court's Decision in Englund v. Chavez Does Not Support Fanucchi's Position Tri-Fanucchi claims that Englund. v. Chavez (1972) 8 Cal.3d 572, supports recognizing an abandonment defense. TFF Brief at 22, 41-42. 38 According to Fanucchi, the Englund court "refused to uphold collective bargaining agreements that were forced upon unwilling employeesafter being negotiated by a union that did not have the support of those employees." TFF Brief at 22. This is not an accurate statement of the holding in the that case. Asan initial matter, the Englund decision offers little help to Tri- Fanucchi because it was decided almost three years prior to the enactment and effective date of the ALRA. The Englund court was therefore not interpreting the language ofthe ALRA,as the Court remarked thatat the time "California has never adopted a comprehensive, administrative regulatory system for resolving labor disputes . . . to date our Legislature has rejectedall attempts to establish an administrative apparatus comparableto that of the National Labor Relations Board." Englund, supra, § Cal.3d at 584. Instead, Englund interpreted the applicability of the Jurisdictional Strike Act (Lab. Code § 115 et seq.), and whether an employer who grants recognition to a union which he knows does not enjoy majority support from employees, could use the Jurisdictional Strike Act to obtain injunctive relief against the strike activities of a competing union. See, Id., at 572, 585-586. During pre-ALRA organizational activities in 1970, in order to avoid UFWrepresentation and contracts with UFW, vegetable growersin the Salinas and Santa Maria valleys recognized the Teamsters union and signed 39 "sweetheart" contracts with them, knowing that workers did not support the Teamsters. The recognition and sweetheart contracts led to bitter disputes between UFW,and the growers/Teamsters, and led to growers trying to enjoin UFW'sstrike activities. See Englund, Id., at 576-83; Harry Carian Sales v. ALRB (1985) 39 Cal.3d 209, 224-25. Contrary to Tri-Fanucchi's claim, the Englund court did not strike down either the recognition ofthe Teamsters union or the agreements entered into between the Teamsters and the growers. Rather, the Court simply held that because the recognition of the Teamsters by the growersconstitutedillegal "interference" under the Jurisdictional Strike Act, the employers could not use the injunction provisions to stop UFW'sstrike activities. Englund, supra, 8 Cal.3d at 587- 98. While the Englund case formed an important backdrop in the legislative history of the ALRA,the most important provisionsarising out of the Teamsters "sweetheart" contracts were the ALRA's proscription of "voluntary recognition" of a Union (see Lab. Code § 1153(f)),'® andin its place, the "worker-initiated” secret ballot election as the only means to certify a union. In drafting the ALRA,the Legislature intentionally excluded employers from having any role in deciding whether employees should be represented, or who they should be represented by. See Harry 181ab. Code § 1153(f) makesit illegal for an employerto "recognize, bargain with, or sign a collective-bargaining agreement with any labor organizationnot certified" pursuant to a secret ballot election. 40 Carian, supra, 39 Cal.3d at 225-26 (the drafters of the ALRA stressed the "importance of having worker-initiated secret elections" and not permitting employersto call for elections); F & P Growers Assn., supra, 168 Cal.App.3d at 673-74 (discussing that ALRA,unlike NLRA,does not permit employers to file election or decertification petitions). To the extent that Englundis instructive on the question of abandonment,its history demonstrates that the Legislature was specifically concerned with preventing employer involvement and coercion in the representation process, and thus supports the ALRA's rejection of the abandonment 1 defense.” 2. The ALRB's Bruce.Church and Dole Fresh Fruit Decisions Reject The Abandonment Defense Tri-Fanucchi claims that in Bruce Church and Dole Fresh Fruit, the Board "had held that an employer's bargaining obligation may cease when a union is found to have totally abandoned the bargaining unit for a period of time." TFF Brief at 23. Fanucchi goes so far as to claim that in the ALRB cases following Bruce Church and Dole, "the Board arbitrarily began narrowing the circumstances under which an employer could demonstrate abandonment." TFF Brief at 31. However, because both Bruce Church ? Fanucchi makes the related claim that the MMCprocedures providedin the ALRA can serve to bypass the employees through the imposition of a contract without their consent. TFF Brief at 42. However, the MMC provisions do not in any way impact the right of employeesto seek to decertify a union under Labor Code section 1156.3, and in this case, Fanucchi employees have not validly sought to decertify the UFW. 4} and Dole are consistent in their rejection ofthe abandonment defense, Fanucchi's claims are without merit. In its brief, Tri-Fanucchi repeatedly cites from the ALJ decision in Bruce Church and misrepresents that the ALJ decision is the Board's decision whenin fact, the Board's decision expressly states that the ALJ's rulings were affirmed only "insofar as they are consistent with the decision herein." Bruce Church, supra, 17 ALRB No.1, at 2. Contrary to Tri-Fanucchi's claims, Bruce Church does not support the existence of an abandonment defense. Rather, it affirmed the Board's long-standing "certified until decertified" rule and found only that a union's "dilatory and evasive" conduct could serve to excuse an employer's unilateral changes in terms and. conditions of employment after the employer sought to bargain about those changes. Bruce Church, 17 ALRB No.1, at 9-10, 20. In other words, if an employer sought to bargain with a union, and the union did not respond to the request or evaded bargaining, 20 Tyi-Fanucchi presents the ALJ decision as the Board's decisionat the following pages in its brief: 11, 24-26, 28, 30-31, and 39. For example, Fanucchiwrites that "'the Board recognized that although it does notutilize the doctrine of good faith doubt applicable under the NLRA,it 'nevertheless retained the doctrine ofabandonmentas an exception to its usual certified until decertified rule.' (Bruce Church, supra, 17 ALRB No.1 at 43, 44)." TFFBrief at 24. However, the Board’s Bruce Church majority decision only covers 20 pages. The language Fanucchicites appears at pages 43-44 ofthe ALJdecision, which is appendedto the Board's decision. That language wasnot adopted in the Board's decision. 42 the employer wouldbeprivileged to make unilateral changes, without fear of being found to have committed an unfair labor practice. Id., at 20. The Bruce Church Board only minimally discussed abandonment, while affirming the certified until decertified rule. Id, at 9-10. The Board remarked that abandonmenthas been defined as "a showing that the Union was either unwilling or unable to represent the bargaining unit,” or "had left the scene altogether." Jd. In deciding whether there had been unwillingness or inability to represent the bargaining unit, the ALRB found that there was no evidence of disclaimer by UFandthat the "UFW was [obviously] not defunct." Jd, at 10, fn.5.”’ The conclusion in Bruce Church that "disclaimer" and "defunctness" are the only exceptionsto the certified until decertified rule is consistent with both prior and subsequent ALRB decisions.” See, e.g., Dole, supra, 22. ALRB No.4, at 15 (Board does not "recognize the concept of ‘abandonment’ beyondthat already present in Board case law,i.e., where 21 -Tyi-Fanucchi's brief at pages 24-26 contains a long discussion ofwhatit says is the Board's explanation of the "interrelatedness between the concepts of defunctness, disclaiming interest, and abandonment." TFF Brief at 24. However, Fanucchi actually discusses the ALJ decision -- not the Board decision. Therefore its representation that the ALJ languageis the Board's "explanation" of abandonmentis error. 22 The Board's pronouncementofthe disclaimer and defunct exceptions to the certified until decertified rule first came in Lu-Ette Farms. Lu-Ette Farms (1982) 8 ALRB No. 91 at 5 (“Once a union has been certified,it remains the exclusive collective bargaining representative of the employees in the unit until it is decertified or a rival unionis certified, or until the union becomes defunct or disclaims interest in continuing to represent the unit employees.”). 43 certified labor organizations become inactive by becoming defunct or by disclaiming interest in continuing to represent the bargaining unit. In all othercircumstances,certified bargaining representatives remain certified . . .") (emphasis added); Arnaudo Bros, LP, supra, 40 ALRB No.3 at 10, fn.2 (“Wenoteit is clear from Board decisions issued since Bruce Church, Inc. that ‘unwilling or unable’ means disclaimer or defunctness. There is no broader application of the phrase ‘unwilling or unable.’”). Accordingly, Bruce Church does not support Fanucchi's arguments. Fanucchi's claim that Dole recognizes an abandonment defense (TFF Brief at 26) is even morecurious, given that the Dole Board exhaustively discussed the issue, and expressly rejected the availability of any kind of abandonmentdefense. In Dole, the Boardsaid that the ALRA “does not recognize the concept of ‘abandonment.’” Dole, 22 ALRB No.4, at 15.2 And the Dole decision expressly foundthat it was for the Legislature, and not the Board, to amend the ALRA to provide an abandonment procedure, Jd, at 16 ("The Board does not have authority to create a process whichis inconsistent with the Act as it is now written."). ‘While the Board did discuss that it would "hold[] accountable labor representatives" for "absence of conduct" (Dole, Id., at 17), it immediately explained what it meant, when it said that a union's inactivity could serve as 23 The Board hasheld that a union is "defunct" whenit is "institutionally dead and unabie"to represent the employees. Arnaudo Bros, LP, supra, 40 ALRB No.3 at 11. 44 a basis to find that the union illegally refused to bargain under Labor Code § 1154(c), and that such inactivity could be a "waiverofthe right to bargain over proposed changesin terms and conditions of employment." Jd.,at 18. To the extent that Fanucchi argues that under Dole, a union can loseits certification status through inactivity, the Board's express language plainly rejects that. Finally, Fanucchi complains about the ALRB’s finding in Dolethat it makes no sense “for an employerto attempt to defendits refusal to bargain. . . immediately after the union has come forward with an affirmative request to bargain.” See Dole, 22 ALRB No. 4 at 11. According to Fanucchi, the Dole Board did not intendto find that abandonmentis a “factual impossibility” under those circumstances, becauseit did not end its inquiry into abandonment upon reaching that conclusion. TFF Briefat 27, fn.4. However, the Dole conclusion is consistent with other ALRB decisions finding that abandonmentis a factual impossibility when a union is presently asserting its bargaining rights. For instance, in Ventura County Fruit Growers, supra, 10 ALRB No.45, the ALRB held that abandonment cannot exist ifthe incumbent union demonstrates its willingness and ability to represent the unit employees “atthe time its status is called into question." Ventura County Fruit, Id., at 7 (emphasis added). The Board reasoned that "[e]ach time the Union requested bargaining, it thereby 45 affirmatively notified [the employer] of its desire and intent to actively represent unit employeesin the conduct of negotiations . . . [the] abandonmenttheory was a factual impossibility." Jd., at 7 — 8; see also, Tri-Fanucchi, supra, 12. ALRB No.8, at 9 (by its "recurrent requests for bargaining, the Union ‘affirmatively notified Respondentofits desire and intent to actively represent unit employeesin the conduct of negotiations.”); Arnaudo Bros, supra, 40 ALRB No.3 at 12, fn.3 (reaffirming that abandonmenttheory is a “factual impossibility” when an employer is faced with a union’s request to bargain). 3. Existing Case Law Does Not Support an Abandonment Defense Tri-Fanucchi argues that under Montebello Rose, there exists a “rebuttable presumptionthat a certified union continue[s] to enjoy majority support,” and that an employer can rebut the presumption of majority support through an abandonment defense. TFF Brief at 33-34. Fanucchi’s argument is premised on the erroneous claim that the Montebello court misconstrued the Board’s holding in Kaplan's Fruit, supra, 3 ALRB No. 28. Fanucchi argues that the Montebello court “inaccurately summarized” Kaplan's Fruit. According to Fanucchi, the Montebello court meant only to say that the duty to bargain continuesafter “theinitial certification year,” not until the “unionis officially decertified.” TFF Brief 46 at 34, fn.6. In essence, Fanucchi’s argumenthere is that Montebello did not mean whatit said whenit ruled that the duty to bargain continues “until the union is officially decertified.” See Montebello Rose, 119 Cal.App.3d at 24. However, the Montebeilo court accurately represented the holding in Kaplan’s in affirming the certified until decertified rule. In Kaplan's the Board found that there is no need for unions to repeatedly seek reaffirmanceoftheir certification. Kaplan’s Fruit, supra, 3 ALRB No. 28, at 6 (“Wefail to see the need to commit our resources to a processofritual reaffirmanceofcertifications in cases where employees are satisfied with their representatives.”). Instead, the Kaplan’s Board concluded that an employer’s “duty to bargain” continues “no matter how long its duration,” (id. at 7) and rejected “the idea that requiring an employer to continue to meet and confer with a union prejudices it in any way” because “it is the policy of this state that an employerhas this obligation [to bargain] whenever his employees have properly designated their representative.” Jd., at 7-8. Contrary to Tri-Fanucchi’s claim, the Montebello court accurately represented the holding in Kaplan’s whenit held that an employer’s duty to bargain continues “until the union is officially decertified.” See Montebello Rose, 119 Cal.App.3d at 24. The Fifth DCA properly relied on Montebello Rose in rejecting the abandonment defense. Fanucchialso incorrectly claims that the “rebuttable presumption” 47 discussed by Montebello Rose necessarily means that an employer can play arole in rebutting the presumption. TFF Brief at 34-35. However, this is an incorrect statement of the law. To the extent the ALRA has adopted a "rebuttable presumption," that presumption can only be rebutted by employees -- either by decertifying the present union,or by replacing it with another union, and only through a secret ballot election. This is the embodimentofthe “certified until decertified” rule. See, e.g., Nish Noroian Farms, supra, 8 ALRB No.25, at 15-16; F & P Growers, 168 Cal.App.3d at 678 (it is “legislative policy” that “unions be chosen solely by employees and not by employers.”). Fanucchi’s argument that an employercan play a part in challenging the Union’s representative status has beenplainly rejected by ALRB cases for over 30 years and by Montebello Rose, F & P Growers, Adamek & Dessert, and the Court ofAppeal in this case. 4. The Fifth DCA Properly Applied the F& P Growers Decision. Tri-Fanucchi argues that the Fifth DCA “erroneously deferred to F & P Growers, whoseanalysis is inapplicable" to this case. TFF Brief at 35- 40. The crux of Fanucchi's attack is its claim that abandonmentis a distinct defense from an employer's "good faith doubt”that a union has lostits majority support. See TFF Brief at 37 ("Fanucchi's abandonmentdefenseis not analogous to the loss of majority defense scrutinized in F & P Growers.") (emphasis added). Fanucchi's claim is inconsistent with its 48 prior briefing on this matter, and in any event, is incorrect as a matter of law. In its Opening Brief before the Fifth DCA, Tri-Fanucchi wrote that "abandonmentis a narrow theory within the broaderarea of goodfaith doubt, which includes many theories such as loss of majority status . . . Thus, cases concerning good faith doubt wherethere are factors indicating that a union has abandoned a unit provide guidance in resolving the issue at hand." Tri-Fanucchi Opening Brief (5th DCA) at 15. This was the same position Fanucchi took before the ALRB. See, e.g., CR 193 (Tri-Fanucchi's Brief I/S/O Exceptions to ALJ Decision). The Fifth DCA accepted Fanucchi's argument that "good faith doubt" and abandonment wererelated "defenses," but rejected the claim that abandonment could be asserted as a defense to bargain. Tri-Fanucchi, 236 Cal.App.4th at 1093 ("Fanucchi's assertion of abandonment as an alleged defense to its duty to bargain is clearly analogousto the loss of majority support defense that was asserted by the employer in F' & P Growers."). Having lost this argument before the Fifth DCA,Tri- Fanucchi's about-face should be rejected by this Court. At all times until now, Fanucchitook the position that "abandonmentis a narrow theory within the broaderarea ofgood faith doubt." It cannot now changeits argument becauseit did notlike the result it obtained in the Court of 49 Appeal.” Moreover, for the reasons expressed by the Fifth DCA andthe ALRB in this case, abandonmentis related to the "good faith doubt" defense recognized by the NLRB,because both constitute an employer's challenge to the continuing representative status of a union. And because the Legislature "did not intend for an agricultural employerto participate in deciding whetheror notit shall bargain with a particular union . . . the employer [cannot] refuse to bargain with a union" based on either a loss of majority support or based on alleged abandonment. Tri-Fanucchi, 236 Cal.App.4th at 1093. Finally, to the extent that abandonmentis to be treated as a defense completely "independent" from "goodfaith doubt," Fanucchi's argument must be rejected because it essentially reduces to the proposition that even though F & P Growers rejected the wholeofthe defense(i.e. "good faith doubt"),it has not rejected a part ofthe defense. This argumentis untenable. 5. The ALRB's Interpretation of the Act Was Accepted by the Legislature Tri-Fanucchi’s argumentis also contrary to the longstanding principle that when the Legislature amends a statute withoutaltering 24 Because Fanucchi's current position was not raised before the ALRB or the Fifth DCA,its argument should be deemed waived. Lindeleafv. ALRB (1986) 41 Cal.3d 861, 869-70. 50 portions ofa provision that has been judicially construed,"it is presumed to have been aware of and acquiescedin the previous judicial construction." Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734; see also, Thornton v. Carlson (1992) 4 Cal.App.4th 1249, 1257 ("The Legislatureis presumed to be aware of long-standing administrative practice . . . If the Legislature . . . makes no substantial modificationsto the act, there is a strong indication that the administrative practice [is] consistent with the legislative intent."); Gibson v. Unemployment Insurance Appeals Bd. (1973) 9 Cal.3d 494, 498 fn. 6, citing Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal.2d 753, 756 (a “settled administrative construction of a statute must be given great weight.”). Indeed, although there is existing statutory language giving the Board express authority to decertify a union (see Lab. Code § 1156.3(h)(1) and(2)),”° the Legislature has amended the ALRA numeroustimes since the Board's pronouncements on abandonment, and has not changed the procedure by which a union may be decertified. In Dole Fresh Fruit Co., supra, 22 ALRB No.4, after rejecting the abandonment defense, the Board remarked that it was for the Legislature to amend the ALRA ifit felt the need to create an abandonment defense. The Board stated that it could not “extend its present regulations or case law precedents in regards to 5 The Board can decertify a union when the union has been found to have violated either state or federal anti-discrimination laws. Lab. Code §§ 1156.3(h)(1) and (2). $1 initiating an abandonment procedure without distorting the express directives of the ALRA andinvading the province of the Legislature. Since California is a code state, the power to enact and amend statutes is constitutionally entrusted to the Legislature and notto the judiciary or any quasi-judicial subdivision ofthe executive branch. Thus... the Legislature [] is [where] employers must look. The Board does not have authority to create a process which is inconsistent with the Actas it is now written.” Dole, Id., at 16. Despite this express language from the Board that it was the Legislature's province to change the status quo, the Legislature has not doneso. In 2002, the Legislature added Labor Codesections 1164-1164.13, the Mandatory Mediation and Conciliation (MMC) provisions being challenged in Gerawan Farming, Inc. v. ALRB (S227243). The MMC was enacted to cure what were called "lost decades" during which the purpose ofthe Act to provide collective bargaining rights was not fulfilled. Proponentsofthe law asserted that "this bill is necessitated by the continued refusal of agricultural employers to cometo the bargaining table once an election has occurred" and that "enforcement [of the ALRA] in the '80s and.'90s was almost non-existent and bad faith bargaining becamethe rule rather than the exception.” Off. of Assem. Floor Analyses, 3rd Reading of SB 1156 (2001-2002 Reg. Sess.), Aug. 31 2002, pp. 7-8; Off. of Assem. Floor Analysis, conc. in Sen. Amendments ofAssem. Bill No. 2596 (2001-2002 Reg. Sess.) Aug. 31, 2002, pp. 6-7. The requirements for seeking MMCdonotinclude a threshold for union activity during the "lost 52 decades" where no agreement was reached. See Lab. Code § 1164.11. The Legislature also amended the ALRA in 2011 through the addition ofLabor Code section1156.3(f) [added by Stats. 2011, Senate Bill 126]. Undersection 1156.3(f), the Board may nowcertify a union as the representative for employees in cases whereit finds that the employer engaged in misconduct that affected the results of the election and that such misconduct would render"slight" the chances of a new fair election. Lab. Code. 1156.3(f). The Legislative history reveals that this section was added by the Legislature to address the problem of employers "coercing" employees during elections, with the Board having notool to remedythis misconduct. See Giumarra Vineyards Corp. (2006) 32 ALRB No.5, at 5 ("due to the lack of any sanctions other thansetting aside the election, there is no method for removingthe taint on employeefree choice created by election misconduct . . . Regrettably, the statute in its present form does not provide the Board with remedial authority through which it might address this problem."); see also Senate Floor Analysis, SB 126, Sep. 9, 2011, p. 7 (SB 126 sought to address the "Giumarra problem" identified by the Board by "requiring the ALRB to issue bargaining orders if an employer is found to have coerced an election outcome.. .").”° 26 The Legislature recently entertained a proposed amendment to the ALRA that would have madeit an unfair labor practice fora union to “abandon or fail to represent [a] bargaining unit for a period of three years or more” and that would have required the Board to “decertify a labor organizationthat 53 Given that the Legislature expressly amended the only ALRA section permitting the Board to decertify a union (section 1156) by providing an avenue forcertification of a union because of employer misconduct, and given that the Legislature attempted to remedy the "lost decades" with no collective bargaining agreements through the enactment ofMMC,it is clear that the Legislature was not only "presumed to have been aware of and acquiesced in the previous judicial construction," but that it supported the ALRA's prior construction by not amendingit. See Marina Point, Ltd., supra, 30 Cal.3d at 734. The fact that the Legislature recently rejected an attempt to provide an "abandonment" procedure through proposedlegislation is even stronger evidence that the Legislature has ratified the ALRB's interpretation ofthe ALRA. E. Under the ALRA,a Union Certification Cannot Be Forfeited Having failed to convince the ALRBorthe courts that a union can lose its certification through alleged "abandonment," Tri-Fanucchi argues that this Court should import case law interpreting entirely different statutes, under different factual backgrounds, to provide cover forits illegal refusal to bargain with UFW. TFF Brief at 42-46. Fanucchi offers no violates this subdivision.” See UFW Requestfor Judicial Notice, Ex.1 [Assembly Bill 1389 (Patterson) (Cal. Legis. 2015-2016 Sess.) at 6, lines 3- 5]. However, the bill failed to garner enough votes to pass out ofthe State Assembly Committee on Labor & Employment. See UFW Request for Judicial Notice, Ex. 2 [May 6, 2015, State Assembly Committee on Labor & Employment, Vote on AB 1389]. 54 convincing argumentas to why this Court should look outside the terms of the ALRA (and its case law) to resolve the abandonment question. The ALRA is a "comprehensive"state statute governing labor relations between agricultural employers, labor organizations, and agricultural employees, created to "encourage and protect the right of agricultural employeesto full freedom of association . . . and collective bargaining.” Lab. Code § 1140.2; JR. Norton, supra, 26 Cal.3dat 8. The Legislature gave the ALRB primary exclusive jurisdiction over conduct which "arguably involves practices covered, protected or prohibited under the ALRA,including remedies for violations." See Kaplan's Fruit & Produce Co., supra, 26 Cal.3d at 68, citing San Diego Unions, supra, 359 U.S. 236. Given this "comprehensive" statutory scheme, Fanucchi offers no convincing argumentas to why this Court should look beyond the ALRA in resolving its abandonment claim. Even so, Fanucchi's arguments offer no persuasive authority in resolving the issue. For example, Tri-Fanucchi cites to Steele v. Louisville & Nashville Railroad Co. (1944) 323 U.S. 192 and James v. Marinship Corp. (1944) 25 Cal.2d 721, cases which predate the enactment of the ALRA by more than 30 years, involved different statutes, and which concerned twounions’ discriminatory practices in excluding African-Americans from membership in the unions. See TFF Brief at 43. There is absolutely no analogy between the issue in the present case, and the rulings in the Steele and 55 James cases that unions cannot engageis invidious discrimination and must fairly represent all members ofthe union.”” Similarly, Tri-Fanucchi's citation to cases involving thestate granting a franchise to public utilities (TFF Brief at 43-44) is of no value in resolving its abandonment claim. Those cases involved the issue of whethera franchise to use public lands and highwaysfor the provision of utilities was lawful under the California Constitution and whether the grant of a franchise required compensation to the counties from the utility companies’ use of public lands. Those cases have no shared facts, statutes, case law, or applicable authority that are even remotely related to an employer’s. duty to bargain under the ALRA. if Hf 27 Ranucchi's citation to Pasillas and UF(1982) 8 ALRB No. 103 (TFF Brief at 43), is also inapposite because that case involved a challenge to a union-membership requirement and to the ability of UFW to discipline and expel members for failing to honora strike and picketline. 56 CONCLUSION For the foregoing reasons; this Court should affirm the Court of Appeal decision insofar as it upheld theALRB’s determination that Tri- Fanuechi committedan unfair labor practice. This Court should reverse the Court of Appeal's decision insofar as it'set aside theALRB’s award of makewholerelief. Dated: February 12, 2016 MARIO MARTINEZ Counsel for Real Partyin Interest United Farm Workers ofAmerica 37 CERTIFICATE OF WORD COUNT Pursuant to California Rule of Court 8.504(d), I certify that UFW's Combined Answerto Briefs on the Merits by Tri-FanucchiFarms and ALRB contains 13,851 words, accordingthe Microsoft Word program being used. Dated: February 12, 2016 MARIO MARTINEZ Counsel for Real Party in Ifterest United Farm Workers of America 58 10 L1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {| IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PROOF OF SERVICE BY MAIL Case Name: Tri-Fanucchi Farmsv. Agricultural Labor Relations Board Case No.: $227270 Iam a resident of the County of Kern. I am overthe age of eighteen years and not a party to the within entitled action. My business address is P.O. Box 11208, Bakersfield, California, 93389. On February 12, 2016, I served foregoing documents described as: COMBINED ANSWEROF UNITED FARM WORKERS OF AMERICA TO) BRIEFS ON THE MERITS BY TRI-FANUCCHI FARMS AND ALRB __x__ (BY REGULAR MAIL) by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Bakersfield, California addressed as set forth below. __x__ (BY ELECTRONIC MAIL). By causing a true copy thereof to be electronically, transmitted to the person(s) email address below. Service List Howard A. Sagaser Antonio Barbosa, Executive Secretary Sagaser, Watkins & Wieland, PC Scott P. Inciardi, Senior Board Counsel 7550 N. Palm Avenue, Suite 100 Agricultural Labor Relations Board Fresno, CA 93711-5500 1325 J. Street, Suite 1900-A has@sw2law.com Sacramento, CA 95814 JBarbosa@alrb.ca.gov Scott.Inciardi@alrb.ca.gov Office ofthe Clerk Fifth District Court ofAppeal 2424 Ventura Street Fresno, CA 93721 Via regular mail only I declare under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on February 12, 2016, in the County of Kern, California. se: Molly Hart PROOF OF SERVICE «|