TRI-FANUCCHI FARMS v. AGRICULTURAL LABOR RELATIONS BOARD

Respondent’s Petition for Review

Cal.June 23, 2015

S$ 227270 IN THE SUPREME COURT OF CALIFORNIA TRI-FANUCCHI FARMS, ) CaseNo. § ) ) (Fifth District Court of Appeal; Petitioner and Respondent, ) Case No. F069419) ) SUPREME COURT V. ) Ro. es ) Pyle AGRICULTURAL LABOR ) RELATIONS BOARD, ) JUN 2 3 2015 ) RespondentandPetitioner, ) Frank A. McGuire Clerk ) and ) Deputy ) UNITED FARM WORKERS ) OF AMERICA, ) ) Real Party in Interest. ) PETITION FOR REVIEW J. ANTONIO BARBOSA, SBN 87829 Executive Secretary PAUL M. STARKEY, SBN 109434 Special Board Counsel SCOTTP. INCIARDI, SBN 228814 Senior Board Counsel AGRICULTURAL LABOR RELATIONS BOARD 1325 J Street, Suite 1900-B Sacramento, CA 95814 DATED:June 22, 2015 Telephone: (916) 653-3741 #[1816] Facsimile: (916) 653-8570 IN THE SUPREME COURT OF CALIFORNIA TRI-FANUCCHI FARMS, Petitioner and Respondent, V. AGRICULTURAL LABOR RELATIONS BOARD, RespondentandPetitioner, and UNITED FARM WORKERS OF AMERICA, Real Party in Interest. DATED:June22, 2015 #[1816] ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. S (Fifth District Court of Appeal; Case No. F069419) PETITION FOR REVIEW J. ANTONIO BARBOSA, SBN 87829 Executive Secretary PAUL M. STARKEY, SBN 109434 Special Board Counsel SCOTT P. INCIARDI, SBN 228814 Senior Board Counsel AGRICULTURAL LABOR RELATIONS BOARD 1325 J Street, Suite 1900-B Sacramento, CA 95814 Telephone: (916) 653-3741 Facsimile: (916) 653-8570 TABLE OF CONTENTS BACKGROUND...0..occccccccecceceetetetseseesteeeseeeeteeasstescsvevsessvacseceatereerearvatrens 8 I. THE PARTIES’ BARGAINING HISTORY AND TRI-FANUCCHI’S REFUSAL TO BARGAIN....0...cccccceeeeeseeeees 8 I. THE BOARD’S DECISION AND AWARD OF MAKEWHOLE...9 WJ. THE COURT OF APPEAL’S DECISION.........0cc cece leseeeeeeees 10 LEGAL DISCUSSION... cccccccccccesccneccssecscessseseescsvssersvatenseerteaneaees 11 I. THE COURT EXCEEDED ITS AUTHORITY AND FAILED TO APPLY THE APPLICABLE STANDARD OF REVIEW...........000000055 13 IH. THE COURT’S CONCLUSION THAT TRI-FANUCCHI’S REFUSAL TO BARGAIN FURTHERED THE POLICIES AND PURPOSES OF THE ACT WAS INCORRECT AND WILL UNDERMINEPUBLIC POLICYo.oo. .occccccccccccccesessesceseesevesseeeeseens 23 CONCLUSION0.00. ecececceccecneeseceseeesetesaeesecsecsecescecsecsscatesesssatateveneeres 34 TABLE OF AUTHORITIES Cases ABFFreight System, Inc. v. NLRB (1994) S10 U.S. 317 ee icccccec cee ceeeesessescsscscssercacvecaesarvesevenaners 15, 17 Adam Dairy (1978) 4 ALRB NO. 24 ooocccccccccccceeccccecsescesesssesvescrssevarsateeeatststeseass 12 Belridge Farms v. ALRB (1978) 21 Cal.3d SS.ei cececcccccccsecseecscsseeesesetsssssesscercersivevetenseseesees 17 Butte View Farms v. ALRB (1979) 95 Cal.App.3d 961 ooo.ccccccccccccccccccscessesessescessereceevsetetsteesreaes 18 Carian v. ALRB (1984) 36 Cal.3d 654 ooo. iecccccccccesctccecssstsecscsescseeseaversvisuneetaneteressen 19 Convergence Communications, Inc. (2003) 339 NLRB 408 00... .ecccccccccceseccccssessescsstessscttanecrevsvsesateneeeeees 11 F&P Growers Assoc. (1983) 9 ALRB No, 22 o.ececcccccccccccccecetescsevscescsstsesscnstesevarereaestteeaees 10 F’&P Growers Assoc. v. ALRB (1985) 168 Cal.App.3d 667 o.ooceccceeeesceseceteseveeenens 13, 18, 24, 25 Franks. Bros. Co. v. NLRB (1944) 321 U.S. 702 occcececeececceceessseeccscssestsststesecssasersevensesaees 14 George Arakelian Farms, Inc. v. ALRB (1989) 49 Cal.3d 1279 oo icccccccccccececesccesvscsetsevssssvesesvereeaees 12, 28, 31 Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal. 3d 494 ooo ccccccecccceccssccscsescsssscasesssstssaeseassasneeneres 4, 20 Harry Carian Sales v. ALRB (1985) 39 Cal.3d 209 ooo. ccccccccccecccscescsesssecsssessssevesdvavevevteeevstereess 29 HighlandRanch v. ALRB (1981) 29 Cal.3d 848oooceccecseescscsscsessevececsevvasvasvevrereanenss 17 JR. Norton Co. v. ALRB (1979) 26 Cal. 3d Vince ccceccccsccscessseseseseescssesevsesesssesegacersreavensesens 12 Jasmine Vineyards, Inc. v. ALRB (1980) 113 Cal.App.3d 968 oo... cccccccescsscscestestsecnsvsstevsevevsesassas 3 Joe G. Fanucchi & Sons/Tri-Fanucchi Farms (1986) 12 ALRB NO. 8 oc ccccccccccccccceccssecesecessescsecneavevsevressetsteteaees 8 Kaplan’s Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60.00...cece ccceccesssesccssssssceseesesevscessesensseessesatens 21 Karahadian Ranches v. ALRB (1985) 38 Cal.3d Liceccccccccescessescseseseetesestesesseetsersneeren 3, 13, 18 Montebello Rose Co. v. ALRB (1981) 119 Cal.App.3d Looecccsccsesceccscsstevessseveesesceverees 24, 25 il Nish Noroian Farms v. ALRB (1984), 35 Cal.3d 726 oo. eececceccccececsecseessesscevscsseevstsessaevavtevavststieeeens 18 NLRB v. Seven-Up Bottling Co. ofMiami, Inc. (1953) 344 ULS. 344 oo.weeueeeeeaeeeesieeeeeeeseetsetsseesaeeeenseeseeteeeen 3, 13, 16 NLRB y. Virginia Electric & Power Co. (1941) 314 US. 469cccccc cece cecscseescassesesvausestartssaesntaseeess 16 Phelps Dodge Corp. v. NLRB (1941) 313 U.S. 177 occcccccccececcceccesestseeetienen detec testesessceaeseenees 14 Rabago v. Unemployment Insurance Appeals Board (1978) 84 Cal.App.3d 200 o.o...occcccccccccccccscecscessesescsseceveresteevevsesaeens 20 Rivcom Corp. v. ALRB . (1983) 34 Cal.3d 743 ooo cccccccsceccececsesssssesscssessstsveevevenssesetenteees 21 Ruline Nursery Co. v. ALRB (1985) 169 Cal.App.3d 247 oo...ccc ceeceeeeeeees eeetevaseeeeteeetseeensas 32 San Diego Building Trades Council v. Garmon (1959) 359 U.S. 236 ooecicececceccccececsssesessessescsssesssavessvevaueauvsceatacateavaness 14 San Joaquin Tomato Growers, Inc. (2011) 37 ALRB NO.5...ececccccccccccccccsccesscscerststscaresevsvresavsceavacseseees 26 Sandrini Bros. v. ALRB (1984) 156 Cal.App.3d 878 oo..cccccccccccecescccecesssetesessereeseeses 13, 17, 32 Sunnyside Nurseries, Inc. v. ALRB (1979) 93 Cal.App.3d 922 ooo.ccccccccccessccscecssscesesteseesseseverssisnecnseseeestes 26 Sure-Tan, Inc. v. NLRB (1984) 467 U.S. 883 occccc ceccseeccesestsesesscssvseveseeeseesaeereataes 3, 16 Tex-Cal LandManagement v. ALRB (1979) 24 Cal. 3d 335 ooo. icccccccccccccsccsscsssuscsessscsecscsvesterevaeveressatres 5, 21 Tri-Fanucchi Farms v. ALRB (Nov. 21, 1987, F008776) ({nonpub. opn.]) occeeeeeeeeeeeees 7,9, 27 United Farm Workers ofAmerica.v. Superior Court (1977) 72 Cal.App.3d 268 oo... cccecccsessesscescsevsesesessvavsvesnavans 31 Virginia Electric & Power Co. v. NLRB (1943) 319 U.S. 533 ieccccccccscescescceseseseesesvecsssvsevasearevseesers 3, 13, 15 iil Statutes 29 United States Code section 160(C) ......cccccccceeeescecscetseeseeeseneveeeses 15 Labor Code Labor Code section 1140.2 .....000ceccccccecssccesescvsceesescesevcesteeeceeseceeteeeeeee. 29 Labor Code section 1148 ...0...0.cccccccceccccccccssccsecseeccescscsseesecstenseceeeseceesse. 17 Labor Code section 1153 .......ccccccccccccececscccsccstesecvesecessecsseveresstusesetecereses 26 Labor Code section 1153 subd. (6) .....00..ecccccccceseesseeseeesSv eeeeetetetsseeeesseess 26 Labor Code section 1154 subd. (6) .o..cccccccccceccccceccecececeseeuscessevesessesscsees 26 Labor Code section 1160.3 .o...c.cccceccccccccsscssssesecsecstssesesesvsseseversatseees passim Labor Code section 1160.9 ........00ccccccccccessccsecseecsseecssssceseseessuseceeeeceeeees 21 Rules California Rules of Court, Rule 8.115.000... ..cccccccccccecccccscccssccueseseteceesceeeees 28 1V The Agricultural Labor Relations Board (the “ALRB”or the “Board”) hereby petitions for review of a published decision of the Court of Appeal, Fifth Appellate District, filed May 14, 2015. ISSUES PRESENTED Labor Code section 1160.3 authorizes the Board, as an expert body, to make employees wholefor loss of pay resulting from the unlawful refusal of an employer to bargain with a union certified underthe Agricultural Labor Relations Act (the “ALRA”or the “Act”). Upon a finding that Tri-Fanucchi Farms (“Tri-Fanucchi”) unlawfully refused to - bargain with the United Farm Workers of America (the “UFW”), the Board determinedthat Tri-Fanucchi should make its employees wholefor the violation. The Court of Appeal, Fifth Appellate District (the “Court of Appeal”), while agreeing that Tri-Fanucchi unlawfully refusedto bargain, nevertheless substituted its judgment for the Board’s, and reversed the Board’s makewhole award. The issues presentedare: (1) Whether the Court of Appeal exceeded its authority and failed to apply the applicable standard of review by failing to afford deference to the Board’s determination that bargaining makewhole was appropriate and by conducting what amounted to a de novo determination of whether makewhole was appropriate; (2) Whether the Court of Appeal’s conclusion that Tri-Fanucchi’s refusal to bargain with the certified representative ofits employees furthered the policies and purposes of the ALRA was erroneous. | REASONSFOR GRANTING THE PETITION This Court should grant review to settle an important question of law concerning the Board’s remedial authority. As the agency established by the Legislature with primary and exclusive jurisdiction to prevent and remedy unfair labor practices (“ULPs”) as defined by the ALRA and with subject matter expertise in California agricultural labor relations, the Board is entitled to deference in its choice of remedies to expungethe effects of ULPs. Here, as found by the Board and affirmed by the Court of Appeal, Tri-Fanucchi committed a ULP by refusing to bargain with its employees’ certified representative without any legal justification for its conduct. Exercising the discretion vested in it by the Legislature over such matters, the Board determined that an award of bargaining makewhole pursuant to Labor Code section 1160.3 was appropriate because Tri-Fanucchi’s refusal to bargain, predicated on an “abandonment” defense whose inapplicability under the ALRA had long beensettled as a matter of Board law, did not further the policies and purposes of the ALRA. The reviewing Court, in error, reversed the Board’s policy judgment. Therole of the courts in reviewing the Board’s determinations concerning remedies for ULPs is a limited one. In view ofthe primary and exclusive jurisdiction vested by the Legislature in the Board, and the well- established principle that the formulation of remedies is peculiarly a matter for administrative competence, the Board’s remedial orders are to be upheld “unless it can be shownthatthe orderis a patent attempt to achieve ends other than those which can befairly said to effectuate the policies of the Act.” (Karahadian Ranches v. ALRB (1985) 38 Cal.3d 1, 16; Virginia Electric & Power Co. v. NERB (1943) 319 U.S. 533, 540.) Underthis standard, the Court of Appeal was not permitted to conduct its own analysis of the appropriateness of makewhole — that was the exclusiverole of the Board. (NLRB v. Seven-Up Bottling Co. of Miami, Inc. (1953) 344 U.S. 344, 348. (“It is not for us to weigh these or countervailing considerations.”).) Provided that the Board’s remedy is a rational one, it must be upheld, evenif the reviewing court would haveruled differently were it considering the matter de novo. (Jasmine Vineyards, Inc. v. ALRB (1980) 113 Cal.App.3d 968, 982; Sure-Tan, Inc. v. NLRB (1984) 467 U.S. 883, 898- 899.) In this case, the Court of Appeal failed to heed the clear and well- established precedent defining the limited scope of review of the Board’s remedial decisions. The Court ofAppeal did not analyze whetherit had been established that the Board’s determination of the appropriateness of makewhole represented an attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act; rather, the Court of Appealtook it uponitself to conduct what amounted to a de novo determination of that issue. Thus, the Court of Appealcast aside the Board’s determination, acknowledging, as it must, the deference owed to the Board’s remedial decision but, at the same time, dismissing the Board’s policy judgmentas “clearly wrong.” The Court of Appeal then proceeded to determine for itself whether Tri-Fanucchi’s conductfurthered the policies and purposesof the Act such that the remedy of makewhole would be appropriate. Next, compoundingits error, the Court of Appeal reasonedthat the legal status of the abandonmentdefense could not be regardedassettled because there were no reported appellate decisions on the issue, notwithstanding that Board precedentrejecting that defense was well- established. As such, the Court of Appeal found, the Board’s remedy of makewhole exceeded the Board’s discretion in this case. The Court of Appeal’s reasoning is contrary to California Supreme Court precedent holdingthat “a settled administrative construction of the statute... must be given great weight.” (Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal.3d 494, 498 fn. 6.) Furthermore, the Court of Appeal’s ruling threatens to eviscerate the legislatively-mandated role of the Board as the agency with primary and exclusive jurisdiction over ULPs, whose “findings within that field carry the authority of an expertness which courts do not possess and therefore must respect” and whose decisions, particularly those dealing with appropriate remedies, are subject only to limited judicial review. (Zex-Cal LandManagementv. ALRB(1979) 24 Cal.3d 335, 346.) Even apart from the fact that the Court of Appeal exceededits authority and failed to follow the appropriate deferential standard of review of the Board’s remedial order, this Court should grant review because the Court of Appeal’s determination that makewhole was not appropriate in this case was erroneous and would havesignificant harmful public policy impacts, which will be felt state-wide. | The Court of Appeal acknowledgedthat the Board’s own decisions on abandonmenthave beenvery clear that the defense is not viable under the ALRA,andstated that the Board’s precedentis “consistent with how California Courts have construed the ALRA.” [Slip Op. 12.]' The Court of Appealfurther stated that the abandonment defense was “clearly analogous”to the “loss of majority” defense, which had been held to be “clearly inapplicable to the ALRA”in a prior appellate decision. [ld. at 12 & 14 (emphasis in original).] These conclusions cannot be reconciled with the Court of Appeal’s ultimate conclusion that the legal status of the ' References to the May14, 2015 opinion of the Court of Appeal will be indicated by “Slip Op.” Referencesto the certified record will be indicated by “CR.” Referencesto the Petitioner’s OpeningBrief to the Court of Appeal will be indicated by “Pet. Op. Br.” defense was sufficiently unsettled that the Board’s makewhole award lay outside of its broad discretion. While the Court of Appéalcited the fact that the “abandonment”period wasof a long duration, this particular factual permutation did not take the case beyond the generally applicable legal rule that, under the ALRA,unions remain certified until decertified through an election. While the Court of Appeal characterized the UFW’s inactivity as “egregious,”the statutory authority of the Board is to remedy ULPs, andit does not haveplenary authority to police the relationships between employers and unions, or between unionsand represented employees outside of the ULP context, and Tri-Fanucchi has never alleged nor contended that the UFW committed a ULP. Tri-Fanucchi, conversely, has been adjudicated to have committed a ULP, and the Board justifiably rejected the proposition that it should “punish” the UFW’sprior inactivity by visiting the effects of Tri-Fanucchi’s ULP uponthe agricultural employees who had no control over Tri-Fanucchi’s decisionto litigate rather than bargain. Additionally, the Court of Appeal did not take into account that this case represented the second time that Tri-Fanucchi argued abandonment before the Board and the Court of Appeal andits first attempt had resulted in rejection of its abandonment defense and an award of makewhole.” (Tri- Fanucchi Farms v. ALRB (Nov. 21, 1987, F008776) ([nonpub. opn.]) TheCourt of Appeal cited the statutory policy of promoting stability in laborrelationsas justifying its determination that Tri-Fanucchi’s refusal to bargain furthered the policies and purposes of the ALRA. However, the Court of Appealdisregarded the equally important statutory purposes of protecting employee free choice and eliminating employerinterference in the designation of bargaining representatives, both of which polices were directly undermined by Tri-Fanucchi’s attemptto terminate its bargaining relationship with the UFW outside ofthe election procedures of the ALRA. Furthermore, the Court of Appeal’s ruling doesnot foster stability in agricultural labor relations, but underminesit. Under the Court of Appeal’s ruling, employers will be encouraged to commit ULPsandlitigate representation issues in the courts of appeal rather than bargain in good faith. Thus, the Court of Appeal’s ruling underminestherole of the Board, encouragesincreased litigation in the already crowded dockets ofthe courts of appeal, and encourages the commission of ULPs,all of which undermine the statutory policy of promotingstability in agricultural laborrelations. * The Court of Appeal took judicial notice ofits prior unpublished opinion. [Slip. Op. 5 fn. 2.] The Board does not argue that the Court of Appeal’s unreported 1987 decision should have beentreated as having precedential value. However, it is clearly among the “facts and circumstances” bearing on whether an award of makewhole was appropriate. For the foregoing reasons, and as will be explained further below, this case presents an important question of law that requires resolution by this Court. Accordingly, the Board respectfully requests that this Court accept review. BACKGROUND I. THE PARTIES’ BARGAINING HISTORY AND TRI-FANUCCHI’S REFUSAL TO BARGAIN The UFW wascertified as the bargaining representative of Tri-Fanucchi’s agricultural employees in 1977 after a secret-ballot election. [Slip Op. 4.] After the certification, Tri-Fanucchi initially refused to bargain, claiming that it intended to engage in a “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 p. 2.) However,after the UFW filed a ULP charge, Tri-Fanucchi agreed to bargain and negotiations occurred. ([bid.) Between May, 1979 and July 1984, there wasa hiatus in bargaining. (Joe G. Fanucchi & Sons/Tri-Fanucchi Farms, supra, 12 ALRB No. 8 p. 2.) When the UFW requestedto resume bargaining in 1984, Tri-Fanucchi refused, asserting that the UFW had abandonedthe bargaining unit along with other defenses. [Slip Op. 4.] The Board rejected these defenses in a 1986 decision and awarded bargaining makewhole pursuant to Labor Code section 1160.3. (Joe G. Fanucchi & Sons/Tri-Fanucchi Farms, supra, 12 ALRB No. 8 at pp. 9-10.) The Court of Appeal upheld the Board’s decision, including the makewhole award. (Tri-Fanucchi Farms v. ALRB, supra, (Nov. 21, 1987, F008776) ({nonpub. opn.]) After the Court of Appeal’s decision, Tri-Fanucchiindicatedits willingness to bargain with the UFW. [Slip Op. 5.] Tri-Fanucchiclaims that the UFW did not have any contact with Tri-Fanucchi or Tri-Fanucchi’s employees for some 24 years.’ [/bid.] In 2012, the UFW reassertedits bargaining rights, demanded to bargain, and requested information from Tri-Fanucchi. [/bid.] Il. THE BOARD’S DECISION AND AWARD OF MAKEWHOLE Charged with unlawfully refusing to bargain with the UFW,Tri- Fanucchi admitted the substanceofthe allegations: [Slip Op. 6.] It contended, however, that the UFW hadlostits certification due to the UFW’sprolonged period ofinactivity, an argument known as an “abandonment defense.” [/bid.] This defense has, however, been rejected by the ALRB in multiple decisions reaching back decades, as Tri-Fanucchi was aware. [/bid; CR 394-396.] In light of the Board’s well-established precedent rejecting the abandonment defense, the Administrative Law Judge (“ALJ”) foundthat Tri-Fanucchi had no valid excuse for refusing to * Because the case was decided via a dispositive motion, the ALRB assumedthat the facts alleged concerning this period of inactivity were true, and this Petition, likewise, assumesthat they are true. bargain with its employees’ certified representative. [Slip Op. 6.] The ALJ further found that bargaining makewhole was appropriate. [J/d. at 6-7, ] Tri-Fanucchi filed exceptions with the Board. [/d. at 7.] The Board’s decision applied long-standing precedentin affirming the ALJ’s rejection of Tri-Fanucchi’s abandonment defense. [Jbid.; CR 394-396.] The Board then considered whether to award bargaining makewhole pursuant to Labor Code section 1160.3. [CR 403-407.] Under the standard announced by the Board in F&P Growers Assoc. (1983) 9 ALRB No. 22 and affirmed by a court of appeal in F&P Growers Assoc. v. ALRB (1985) 168 Cal.App.3d 667 (the “F&P Growers standard”), the Board considered whether Tri-Fanucchi’s position furthered the polices and purposesofthe Act, in light of the facts and circumstances. [CR 405.] Examining Tri-Fanucchi’s legal justification for its refusal to bargain, the equitable arguments against makewhole presented by Tri-Fanucchi, and the facts and circumstances generally, the Board renderedits policy judgment that an award of makewhole was appropriate. [Slip Op. 7; CR 405-407. ] HI. THE COURT OF APPEAL’S DECISION The Court of Appeal upheld the Board’s rejection ofthe abandonment defense and the Board’s conclusion that Tri-Fanucchi’s refusal to bargain violated the ALRA. [Slip Op. 4, 13-14.] Yet, it reversed the Board’s determination that makewhole was appropriate. The Court of Appeal held that the ALRB wascorrect to apply the F&P Growers standard 10 but disagreed with the Board’s application of that standard. [Slip Op. 19- 20.] The Court of Appeal found that the Board awarded makewhole “solely” based uponits conclusion that Tri-Fanucchi’s assertion of the — abandonmentdefense did not further the policies and purposesofthe ALRA,a conclusion that the Court of Appeal found to be “clearly wrong.” [/d. at 20.] In contrast, the Court of Appeal found that, because there had been no appellate decision on the “specific issue” of abandonment, andit was“far from certain” how a court would rule on the matter, and because the issue of abandonment remained “unsettled and controversial,” litigation of the issue served the beneficial purpose of“clarifying and/or confirming” the law andfurthered the “broader purposes of the ALRA to promote greater stability in labor relations . . .” [Jd. at 20-21.] The Board did notpetition for rehearing, and the Court of Appeal’s decision becamefinal on June 13, 2015. LEGAL DISCUSSION The ALRA is, in most respects, modeled uponits federal equivalent, the National Labor Relations Act (“NLRA”). Under the NLRA, the standard remedy for an employer’s violation of the duty to bargain with a certified union is an order directing the employerto cease and desist from its unlawful conduct and take the affirmative action of bargaining in good faith with the union. (See e.g., Convergence Communications, Inc. (2003) 339 NLRB 408, 408.) However, in 1] enacting the ALRA,the Legislature choseto afford the Board an additional tool to remedy the effects of employer refusals to bargain: the bargaining makewhole remedy. As the Board has observed, the adoption of the makewhole remedy was motivated by the perceived inadequacy of NLRB’s remediesforrefusals to bargain. (Adam Dairy (1978) 4 ALRB No.24 at pp. 4-5.) In particular, employers were able, by refusing to bargain, to weaken the certified union and accrue cost savings, which were effectively borne by employees who were denied the benefits of collective bargaining. (Jbid.) Thus, Labor Code 1160.3, entrusting remedial relief to the Board, provides that the remedies available to the Board include “making employees whole, when the board deems such relief appropriate, for the loss of pay resulting from the employer’s refusal to bargain.” (Emphasis added.) The makewhole remedy is not punitive in nature. Rather, it is “a compensatory remedy that reimburses employees for the losses they incur as a result of delays in the collective bargaining process.” (George Arakelian Farms, Inc. v. ALRB, (1989) 49 Cal3d 1279, 1286 fn. 3.) It is established that makewholeis not to be awarded automatically in every case where an employer refuses to bargain in violation of the Act. (/.R. Norton Co. v. ALRB (1979) 26 Cal.3d 1, 9.) Rather, the ALRA vests in the Board the discretion to award makewhole “when the board deemssuch relief appropriate.” (Lab. Code,§ 1160.3.) As discussed above, in determining whether makewholeis appropriate, the Board makesa policy judgment, weighing the public interestin the 12 employer’s position against the harm causedby the refusal to bargain and only ‘where the employer’s positon furthers the policies and purposes of the Act does ‘the Board place the risk of the decision to litigate rather than bargain on the employeesrather than the employer. (P&P Growers Assoc. v. ALRB (1985) 168 Cal.App.3d 667, 682.) | I. THE COURT EXCEEDED ITS AUTHORITY AND FAILED TO APPLY THE APPLICABLE STANDARD OF REVIEW This Court’s review is necessary because, in reviewing the Board’s makewhole award, the Court of Appeal went beyondits limited role of applying the deferential standard of review that requires that the Board-ordered remedy be upheld unless it was “a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act.” (Karahadian Ranchesv. ALRB, supra, 38 Cal.3d 1, 16; Virginia Electric & Power Co. v. NLRB (1943) 319 U.S. 533, 540.) Instead, the Court of Appeal substituted its own judgment for that of the Board and reversed the Board becauseit reached a different conclusion as to whether makewhole was “appropriate,” a policy judgment vested by the Legislature in the Board and not the courts. (NLRB v. Seven-Up Bottling Co. ofMiami, Inc., supra 344 U.S. 344, 346; Sandrini Bros. v. ALRB (1984) 156 Cal.App.3d 878, 885.) Where the Legislature vests in an administrative agency the responsibility to administer a statute, the courts’ role of review, while important, is a limited one. These principles have been addressed in multiple decisions of the United 13 States Supreme Court in the context of the NLRA. In San Diego Building Trades Council v. Garmon (1959) 359 U.S. 236, 242-243, the United States Supreme Court emphasized the central role of the NLRB in administration of labor policy, “armed with its own procedures, and equipped with its specialized knowledge and cumulative experience.” The Court stressed that, “Congress did not merely lay downa substantive rule of law to be enforced by any tribunal competent to apply law generally to the parties. It went on to confide primary interpretation and application ofits rules to a specific and specially constituted tribunal...” (/bid.) The role of the NLRB and the limited nature ofjudicial review ofits decisions was also was addressed in Phelps Dodge Corp. v. NLRB (1941) 313 U.S. 177. The Court stated that Congress met the challenge of applying the broadly phrased mandates of the NLRA “by leaving the adaptation of means to end to the empiric process of administration.” (Jd. at p. 194.) The Court continued that The exercise of the process was committed to the Board, subject to limited judicial review. Because the relation of remedy to policy is peculiarly a matter for administrative competence, 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. (Ibid y* * See also Franks Bros. Co. v. NLRB (1944) 321 U.S. 702, 704 (“One ofthe chief responsibilities of the [NLRB]is to direct such action aswill dissipate (Footnote continued....) 14 Accordingly, a remedial order of the National Labor Relations Board (“NLRB”) “should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which canfairly be said to effectuate the policies of the Act.” (Virginia Electric & Power Co. v. NLRB, supra, 319 U.S. 533, 540.) In ABF Freight System, Inc. v. NLRB (1994) 510 U.S. 317, the United States Supreme Court considered the language of the NLRA, which grants the NLRB the remedial authority to direct violators to “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter...” (29 U.S.C. § 160(c).) In the course of upholding the NLRB’s decision to order a reinstatement remedy for an employee who had perjured himself, the Supreme Court stated that “[w]hen Congress expressly delegates to an administrative agency the authority to make specific policy determinations, courts must give the agency’s decision controlling weight unlessit is “arbitrary, capricious, or manifestly contrary to the statute’” andthat, “[b]ecause this case involves that kind of express delegation, the [NLRB’s] views merit the greatest deference.” (ABF Freight System, Inc. v. NERB, supra, 510 U.S. 317, 324 (bracketed material supplied).) (Footnote continued) the unwholesomeeffects of violations of the Act. [Citation.] And,[i]t is for the Board, not the courts, to determine how the effect of prior unfair labor practices may be expunged.”) (bracketed material supplied; internal punctuation omitted).) 15 Likewise, in NLRB v. Seven-Up Bottling Co. ofMiami, Inc., supra, 344 US. 344, the United States Supreme Court, reviewing an NLRB decision conceming the calculation of backpay, held that the NLRA “charges the Board with the task of devising remediesto effectuate the policies of the Act.” (d. at p. 346.) While those remedies “must be functionsof the purposesto be accomplished,” the remedial poweris “a broad discretionary one”and“is for the Board to wield, not the courts.” (/bid.) Indeed, after discussing the considerations that went into the NLRB’s remedial decision, the Supreme Court stated that “[i]t is not for us to weigh these or countervailing considerations. Nor should we require the Board to make a quantitative appraisal of the relevant factors ...” (Id. at 348.) In anothercase, the United States Supreme Court found that a federal court of appeals that modified an NLRB remedialorder, . replacing it with a remedy that the court of appeals found more “reasonable,” “overstep[ped] the limits of its own reviewing authority”in light of the NLRB’s “primary responsibility and broad discretion to devise remediesthat effectuate the policies of the [NLRA]”and the commandthat reviewing courts not “substitute their judgmentfor that of the Board in determining how bestto undo the effects of unfair labor practices...” (Sure-Tan, Inc. v. NLRB, supra, 467 U.S. 883, 898-899 (bracketed material supplied).) (And see NLRB v. Virginia Electric & Power Co.(1941) 314 U.S. 469, 476 (“we mustever guard against allowing our viewsto be substituted for those of the agency which Congress has created to administer the Act.”).) 16 Thus, it is clear that, under the federal law on which the ALRA was modeled, the agency vested with the discretion to devise remediesto expunge the effects of violations of the statute is to be given “the greatest deference” andits determinations regarding appropriate remediesare to be given “controlling weight” except where such remediesare “manifestly contrary to the statute.” (ABF Freight System, Inc. v. NLRB, supra, 510 U.S. 317, 324.) This precedent ofjudicial deference to the NLRB’s policy judgments applies for the same reasonsto the ALRB’s remedial orders, as this Court has repeatedly recognized. (Lab. Code, § 1148; Belridge Farms v. ALRB (1978) 21 Cal.3d 551, 557.) Accordingly, following federal law, California precedent recognizesthat, as a general matter, the discretion to formulate remedies to expungethe effects of ULPsis vested in the Board, andnot the courts. (Sandrini Bros. v. ALRB, supra, 156 Cal.App.3d 878, 885 (“the powerto fashion and order backpay and other remedies is vested in the expert regulatory agency alone, not in the courts of the state.”) In fact, this Court has recognized that not only has “the Legislature plainly intended to arm the ALRB with the full range of broad remedial powers traditionally exercised by the NLRB,”insofar as the ALRA’s remedial language differs from that of the NLRA,“the drafters of the ALRA intendedto broaden, not diminish, the ALRB’s remedial authority.” (HighlandRanch vy. ALRB (1981) 29 Cal.3d 848, 865.) Consistent with the principle that the remedial authority delegated by the Legislature is for the Board to wield, a highly deferential standard of review 17 applies to challenges to the Board’s remedial orders. In Karahadian Ranchesv. ALRB, supra, 38 Cal.3d 1, 16, this Court stated that [i]n general, the board’s remedial orders “should stand unless it can be shownthatthe orderis a patent attempt to achieve ends other than those which can befairly said to effectuate the policies of the Act.” (See also Nish Noroian Farms y. ALRB (1984), 35 Cal.3d 726, 745, (“The Board, an expert agency, has broaddiscretion to fashion remedies to effectuate the purposes ofthe act. Courts will interfere only where those remediesare patently unreasonable underthe statute.”); Butte View Farms _v. ALRB (1979) 95 Cal.App.3d 961, 968 (“In framing a remedy, the Board has widediscretion, subject to limited judicial scrutiny”and the reviewing court “can reverse only if . . . the method chosen wasso irrational as to amount to an abuse of discretion.”).) In this case, there is no question that the Board applied the correct legal standard to the issue of whether makewhole was appropriate — the Court of Appeal notedthat the Board “explicitly followed the standard that was approved in F&P Growers.” However, the Court of Appealfailed to apply the applicable standard of review to the Board’s application of that standard. The Court of Appeal never considered whether the Board’s remedy represented an attemptto achieve “ends other than those which can be fairly said to effectuate the policies of the Act.” Rather, it is clear that the Court of Appeal simply disagreed with the Board’s application of the F&P Growers standard and took it uponitself to 18 decide de novo whetherTri-Fanucchi’s refusal to bargain furthered the policies and purposesof the ALRA. The Board concludedthat, in light of settled Board law rejecting the abandonmentdefense, and the fact that, contrary to Tri-Fanucchi’s arguments, there were no delays or dilatory conduct by the UFW or General Counsel that would justify a contrary conclusion, and upon a review ofthe facts and circumstances of the case, an award of makewhole was appropriate. The Court of Appeal reached a different conclusion. However, as the California and federal case law cited above makesclear, the fact that the Court of Appeal disagreed with the results of theBoard’s exercise of the discretion vested in the Board by the Legislature is not a sufficient ground for the reviewing court to override the Board’s choice of remedy. Therefore, the Court of Appeal stepped beyondits properrole, thereby “sliding . . . from the narrow confines of law into the more spacious domainsofpolicy.” (Carian v. ALRB (1984) 36 Cal.3d 654, 674.) The Court of Appeal’s ruling turns on the question of whether the abandonment defense wassettled as a matter of law such that Board’s remedial Judgment can be upheld. The Court of Appeal acknowledgedthat the matter was settled as a matter ofALRB precedent.’ It further implicitly accepted that a ° The Court acknowledged, for example, that “it is true that the Board’s prior decisionsstated that even ‘a prolonged period’ of union absence or inactivity did not create an abandonment defense to the employer’s duty to bargain.” [Slip Op. 20.] 19 party’s refusal to bargain based upon a defense that has been established as invalid does not, as a general matter, furtherthe policies and purposes of the ALRA. However, the Court of Appeal ruled,in essence, that, regardless of the settled Board law on the matter, the issue could not be consideredsettled until there was a reported court of appeal decision onthat “specific issue.”° However, this Court and the Fifth Appellate District itself have held that agency decisions construing a statute may not only be consideredsettled, but such settled administrative construction is to be given great weight. (Gibson v. Unemployment Insurance Appeals Board (1973) 9 Cal.3d 494, 498 fn. 6 (recognizing that, although the meaning of a statute is a question of law properly presented to the court, an agency’s decisions that “representa settled administrative construction of the statute . .. must be given great weight.”); Rabago v. Unemployment Insurance Appeals Board (1978) 84 Cal.App.3d 200, 207 fn. 5 (“The Board’s decisions representing a settled administrative construction of the law must be given great weight ...”) Rather than giving the Board’s settled precedent on abandonment “great weight” as this Court instructed, the Court of Appealtreated that precedent as having no weight, ° That the appellate decision in question, in the Court of Appeal’s view, must be a reported one is demonstrated by the fact that the Court of Appeal did not regard its own prior unreported decision rejecting a prior attempt by Tri-Fanucchi to assert abandonmentas havingsettled the issue. 20 holding, in essence,that the status of the abandonmentdefense could only becomesettled through a reported judicial decision. Not only does the Court of Appeal’s decision fail to afford settled administrative precedent the weight to which it is entitled, the Court’s conclusion that the Board could notrely upon its own established precedent to award makewhole until and unless the matter of abandonmentwas“settled” through a reported judicial decision threatens to eviscerate the Board’s statutory mandate to serve as the expert agency with primary responsibility to formulate remedies for the effects of ULPs. Asstated above, this Court has recognized the ALRB,from its inception, as “one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whosefindings within that field carry the authority of an expertness which courts do not possess and therefore must respect.” (Tex-Cal LandManagement v. ALRB, supra, 24 Cal.3d 335, 346.) The Board has primary and exclusivejurisdiction over ULPs. (Lab. Code, § 1160.9; Rivcom Corp. v. ALRB (1983) 34 Cal.3d.743, 771 fn. 25 (“where a dispute concernsactivities arguably protected or prohibited by the labor relations statute, the Board, not the courts, has primary jurisdiction.”); Kaplan’s Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d 60 (recognizing ALRB’s “exclusive jurisdiction” over ULPs).) Yet, the Court of Appeal’s decision is based upon the premise that the Board itself cannot develop a body of settled law in its area of expertise and rely upon that same law assettled. That 21 premise is contrary to well-established precedentthat has been long recognized -by this Court. The Court of Appealalso erred in finding that the Board’s determination that makewhole was appropriate wasbased solely upon its assessment of status ofthe abandonment defense. The Court of Appeal is wrong on this point. The Board expressly stated that it had considered the facts and circumstances andthe equities of the parties’ positions in arriving at its conclusion. In particular, Tri- Fanucchi had arguedthat the ALJ had failed to take into accountalleged delays and/or dilatory tactics on the part of the UFW andthe General Counsel. The Board consideredthe particular facts alleged by Tri-Fanucchi and foundthat, even assuming their truth, they would notbe sufficient to justify a conclusion that makewhole was notappropriate in this case. However, the Board explicitly acknowledgedthat, had the facts and circumstances been different, its conclusion might have been different as well. Specifically, the Board notedthat “delaysin processing a case may becomesufficiently extremeto justify modifying the amount of makewhole that would otherwise be owed.” [CR 406.] Thus, the Board did not rely exclusively on the fact that Tri-Fanucchi’s asserted defense wasinvalid as a matter of settled Board law, it considered Tri-Fanucchi’s legal justification for refusing to bargain, along with the equitable considerations argued by Tri-Fanucchi, and the facts and circumstances generally in arriving at its conclusion. As stated above, the Legislature vested the Board with the discretion to weigh these considerations to effectuate agricultural labor policy 22 and, under the applicable standard of review, the Court of Appeal should not have reversed the Board’s determination simply because it would have weighed those considerations differently than did the Board. Il. THE COURT’S CONCLUSION THAT TRI-FANUCCHI’S REFUSAL TO BARGAIN FURTHERED THE POLICIES AND PURPOSES OF THE ACT WAS INCORRECT AND WILL UNDERMINE PUBLIC POLICY As discussed above, this Court should grant review of the Court of Appeal’s decision because the Court of Appeal failed to apply the proper standard of review to the Board’s makewhole order. However, this Court should also grant review because, even had it been proper for the Court of Appeal to decide de novo whether an award ofmakewhole was appropriate, the Court of Appeal’s analysis of that issue was incorrect and will have negative public policy effects of state-wide impact. The Court of Appeal’s conclusion that the status of the abandonment defense was “unsettled” and “controversial” such that Tri-Fanucchi’s refusal to bargain was “reasonable” cannot be reconciled with its conclusion that the Board’s rejection of the abandonment defense was consistent with existing law. In its opinion, the Court of Appeal included an extended excerpt from the Board’s decision, which stated that the Board’s prior decisions “have been very clear”that the inactivity or absence of a union, “even for an extended period of time,” does not represent a defense to the duty to bargain. The Court of Appeal stated that “[t]he Board’s position . .. on the abandonmentissue. . is consistent 23 with how California Courts have construed the ALRA.” [Slip Op. 12. (Emphasis added.)} The Court of Appeal cited the long-recognized principle that, under the ALRA,“an employer’s duty to bargain with the originally certified union continues until that union is replaced or decertified by a subsequentelection. [Ibid. (citing Montebello Rose Co. v. ALRB (1981) 119 Cal.App.3d 1, 23-24) (emphasis in original).] The Court further cited F&P Growers v. ALRB, noting that that case held that “the loss of majority support defense was“clearly inapplicable to the ALRA ...” [Slip Op. 14 (citing P&P Growers v. ALRB, supra, 168 Cal.App.3d 667, 674-676) (emphasis in original).] Tri-Fanucchi concededin its opening brief to the Court of Appeal that the abandonment defense is a mere subspecies of the loss of majority / good faith doubt defense that the Court of Appeal recognized as having been previously held inapplicable to the ALRA. [Pet. Op. Br. p. 15 (‘abandonmentis a narrow theory within the broader area of good faith doubt . . .”).] Furthermore, the Court of Appeal stated that Tri-Fanucchi’s abandonment defense “is clearly analogousto the loss of majority defense” that was asserted and rejected in F&P Growersand, in light of the “similar nature” of Tri-Fanucchi’s claims, “we believe that the same reasoning applies and the sameresult should follow.” [Slip Op. 14-15.] The Court of Appeal’s entirely correct conclusions above simply cannot be squared with its ultimate conclusion that that the state of the law on abandonment wasso “unsettled” that the Board could notfind that the advancement of that defense did not further the policies and purposesofthe 24 ALRA ~ particularly in light of the highly deferential standard of review that should have been applied. To the contrary, as the Court of Appealitself recognized, not only wasit well-established that, under the ALRA, unions remain “certified until decertified,” the broader “loss of majority” defense had already been rejected by the Board with judicial approval. The court stated that the question ofhow an appellate court would rule when confronted with the “novelsituation of such /ong-term union absence or egregious inactivity” was “far from certain.” [Slip Op. 20 (emphasis in original).] This statement turns existing law on its head. The Board’s decisions, along with appellatedecisions such as Monebello Rose and F&P Growers established generally applicable rules of law, to wit: that unions remain certified until decertified, that employers are not to be participants in deciding representation issues, andthatthere is no “loss of majority” defense or (under Board law) “abandonment”defense to the duty to bargain. Had the Court ofAppeal recognized an abandonmentdefense for cases of “long term” or “egregious” inactivity it would have represented an unprecedented divergence from these generally applicable rules of law. In short, assuming that Tri-Fanucchi’s claim involved a longer period of abandonment than had been addressedin prior decisions, the presentation of that fact pattern did not render the generally applicable rules of law “unsettled” or uncertain. There was nothingin the existing precedent that suggested that there was a time limitation on the “certified until decertified” rule. Rather, the common-sense 25 approach is to assumethat the general rule of law encompasses fact patterns fallmg within it until and unless an exception is recognized.* Furthermore, the Court of Appeal’s reference to “egregious”inactivity by a union appears to reflect a misapprehensionofthe limits of Board authority under the ALRA. The ALRA sets forth certain forms of conductthat are designated ULPs and which the Board is empowered to remedy (not punish).* (Lab. Code, § 1153 et seq.) In particular, the Board is empoweredto hear claims that an employeror a union hasfailed to bargain in good faith. (Lab. Code, § 1153 subd. (e) & 1154 subd. (c).) However, the Board does not have plenary authority to policethe relationships between employers and unions or between unions and the employeesthey represent. Even within the context of conduct defined as ULPs,the Board’s remedial authority must be invoked bythefiling of a ULP charge. In this regard, the essential fact is that, at no time during the alleged 24-year period of inactivity did Tri-Fanucchi or any other personfile a charge with the ALRB alleging that the UFW wasrefusing to bargain or otherwise violating the ALRA. Nor did Tri-Fanucchi’s employeesfile a petition seeking to decertify the UFW,either during the inactivity periodor,critically, in ’ Furthermore, the year before Tri-Fanucchi refused to bargain, the Board issuedits decision in San Joaquin Tomato Growers, Inc. (2011) 37 ALRB No.5, in whichit rejected an abandonment claim that involvedan alleged period ofinactivity of approximately 13 years. * It is well-established that the ALRB’s authority to commandaffirmative action is remedial, not punitive, in nature. (Sunnyside Nurseries, Inc. v. ALRB (1979) 93 Cal.App.3d 922, 940.) 26 the period after September 2012 when the UFW resumedactively representing the bargaining unit. Accordingly,the fact that Tri-Fanucchi now, years later, characterizes the UFW’s conductas “extreme dereliction,” did not make it “reasonable” for Tri-Fanucchi to assert a discredited abandonment defense. The ALRA doesnot authorize the Board to police union behavior or punish “dereliction” except to the extent that such behavior constitutes a ULP, and Tri- Fanucchi neverasserted that the UFW’s conduct constituted a ULP. As discussed above, the applicable legal standard required the Board to consider the facts and circumstances in determining whether makewhole was appropriate. Amongthe facts and circumstances presented, the Board knew this wasnotthe first time that Tri-Fanucchi had refused to bargain based on an abandonment theory. In 1986, the Board found that Tri-Fanucchi unlawfully refused to bargain, rejecting its abandonment defense. [Slip Op. 5.] Significantly, Tri-Fanucchi sought judicial review in that case, and the Court of Appeal upheld the Board’s decision. The Court of Appeal stated that “Union inactivity alone does not mandate.a finding of abandonment” and because Tri- Fanucchi only challenged the UFW’sstatus after the UFW had requested to bargain, no abandonment defense was possible. [Tri-Fanucchi Farms v. ALRB (Nov. 21, 1987, F008776) ({nonpub. opn.] p. 9.] Notably, Tri-Fanucchi’s present claim involves the very same factual scenario — a claim of abandonmentasserted only after the union resumedits representational role. Under the rules of court, the Board was not permitted to 27 cite the Court of Appeal’s 1987 decision as precedent (and does not do so here). (Cal Rules of Court, Rule 8.1 15.) However, the Boardwas not precluded from - taking into accountthat this was Tri-Fanucchi’s ‘secondbite at the apple’ of abandonment, nor wasthe Court of Appeal. In George Arakelian Farms, Inc. y. ALRB, supra, 49 Cal.3d 1279, 1294-1295, this Court notedthat forcing employees aggrieved by ULPsto suffer the consequencesof“repetitive litigation tactics” would be “inconsistent with the purposes of the [ALRA].” Tri-Fanucchi’s unlawful refusal to bargain deprived (and continues to deprive) Tri-Fanucchi’s employeesofthe benefits of collective bargaining. They have, to that extent, suffered harm.’ It was entirely reasonable and consistent with the purposes of the ALRA forthe Boardto reject the proposition thatit should “punish” the UFW’s “dereliction” by imposing the burdens of Tri- Fanucchi’s unlawfulrefusal to bargain on the bargaining unit employees whonot only constituted the class to be protected by the ALRA, but whobore nofault in the matter. Tri-Fanucchi, for example,stated in its brief to the Court of Appeal that it was well aware when it madethe calculation as to whetherto refuse to bargain with the UFW thatits refusal to bargain couldresult in a makewhole award against it. [Pet. Op. Br. p. 26.] Tri-Fanucchi’s employees, on the other hand, had nosay in the matter, exceptto the extent that they had the option to ” The amountofthat harm will be determinedin compliance proceedings, assuming this Court reinstitutes the Board’s makewholeorder. 28 decertify the UFW,which they chose not to do. Yet, Tri-Fanucchi and the Court of Appeal would impose the burden of Tri-Fanucchi’s choice on those employees. The Board’s decision to reject this result was manifestly reasonable and consistent with the Act. In determining that Tri-Fanucchi’s abandonment-basedrefusal to bargain furthered the policies and purposes of the ALRA, the Court of Appeal relied solely on the policy of the ALRA to promote “greater stability in labor relations.” This purpose is undoubtedly an important one. (Harry Carian Sales v. ALRB (1985) 39 Cal.3d 209, 223.) However, there are other equally important purposesthat the Act seeks to further. Among the most important of these are the purposes explicitly stated in Labor Code section 1140.2 to “encourage and protect the right of agricultural employees to . . . designation of representatives of their own choosing”and “be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives.” These interlocking purposes were directly implicated by Tri-Fanucchi’s effort to unilaterally terminateits bargaining relationship with the UFW withoutaffording bargaining unit employees an opportunity to express their own choice in a secret ballot election — indeed, although those employees had declinedto seek such an election. Requiring Tri-Fanucchi to make its employees whole for the losses caused by its unlawful attemptto unilaterally remove their representative unquestionably furthered these statutory purposes. Yet, the Court ofAppeal, although it cited these purposes in affirming the Board’s rejection of the 29 abandonmentdefense, did not even mention them in reversing the Board’s makewhole award. Furthermore, the Court of Appeal’s decision does not further the statutory purpose of promoting stability in laborrelations, but underminesit. As discussed above, the Court of Appeal’s conclusionthat the Board could nottreat the legal status of the abandonmentdefense assettled law until and unless an appellate court issued a reported decision on that specific issue, upends the Board’srole as the agency with primary and exclusivejurisdiction to administer the ALRA and decide ULPs. Critically, it signals to employers (and unions) throughoutthe state that regardless ofhow many decisions the Board issues on a point of law, they may consider that point of law unsettled as long as a court of appeal has not issued its own opinion on the matter in a reported decision. Furthermore, under the Court of Appeal’s rationale, where a point of law on a bargaining issue has not been “settled” by an appellate decision, employers may refuse to bargain or otherwise comply with the Board’s orders secure in the knowledge that they may assert the lack of an appellate decision on the “specific issue” as a bar to an award of makewhole. Thus, the Court ofAppeal’s decision underminesstability in labor relations by undercutting the force of Board decisions and strongly signaling employersto chooselitigation over collective bargaining. Bytreating Board decisions as something in the nature of advisory or tentative opinions pending ultimate resolution by the judiciary, the Court of Appeal’s decision will place additional burdens on the courts of appeal andthis 30 Court. If the law is to be considered “unsettled” in the absence of a court of appeal decision, the courts will be increasingly asked to “settle” the law with reported decisions on particularissues, for the Court of Appeal’s decision states that, even where,as here, a defense to bargaining is inconsistent with the general rules of law set forth by the Board and the Courts, a party may not be awarded makewhole where there is no court of appeal decision on the “specific issue” raised. In creating the ALRB as an agency with primary and exclusive Jurisdiction over ULPs and with subject matter expertise, the Legislature imtendedto relieve the courts of these kinds of disputes in orderto eliminate delay and thereby effectuate stability and peace in the fields. (George Arakelian Farms, Inc. v. ALRB, supra, 49 Cal.3d 1279, 1295 (Noting the legislative intent in enacting the ALRA to “avoid unduelitigious delay” and rejecting a “procedural system that encourages successive reviewsby appellate courts of questions that were previously decided.”) Thus, in United Farm Workers of America v. Superior Court (1977) 72 Cal.App.3d 268, the court of appeal rejected the proposition that superior courts have jurisdiction to issue declaratory relief concerning the bargaining rights of agricultural employers or employeesin light of the Board’s “exclusive primary jurisdiction” over ULPs. The court held: If every time an incident or condition precedent were involved in an alleged unfairlabor practice and any party could first obtain declaratory relief in the superior court instead of from the Board, the Board would be replaced by ad hoc determinations by already overcrowded courts. The legislative effort to bring order and stability to the collective bargaining process 3] would be thwarted. The work of the Board would be effectively impaired, its decisions similar in impression to that of a tinkling triangle practically unnoticed in the triumphant blare of trumpets. While the courts of appeal, undoubtedly have an important, if limited, role in reviewing the Board’s decisions and determining the law, the Court of Appeal’s ruling that the Board’s ability to award makewhole was conditioned upon a court of appeal “settling” the status of the abandonment defense in a reported appellate decision similarly threatens to thwart the legislative intent, impair the work of the Board, and bring morelitigation to the already overcrowded dockets of the courts. The Court of Appeal focused on stability fostered by clarifying applicable rules of law (although,as noted, the rule of law on abandonmentcreated by the Board’s precedent was abundantly clear). However, the Court of Appeal’s decision disregards other, arguably more fundamental, aspectsofthe stability sought by the Legislature in enacting the ALRA. In Ruline Nursery Co. v. ALRB (1985) 169 Cal.App.3d 247, 253-254, it was recognized that“the collective bargaining processis the preferred method for attempting to bring peace and stability to California’s agricultural fields” andthat the Act’s election provisions are the “central feature” in the promotion of this policy. Relatedly, in in Sandrini Bros. v. ALRB, supra, 156 Cal.App.3d 878, 884, the court emphasized the importance of the “public policy goal of enhancing overall stability by discouraging unfair labor practices.” 32 The Court of Appeal’s decision underminesboth of these public policy goals. Rather than bargain with the UFW andallow its employees to remove the UFW (if that was their desire) through the election process, Tri-Fanucchi sought to unilaterally terminate its bargaining obligation outside of the Act’s election procedures, directly underminingthis “central feature” promoting laborrelations stability. Furthermore, by encouraging employers to commit ULPsandlitigate certification disputes rather than bargain, the Court of Appeal’s decision underminesthe “public policy goal of enhancing overall stability by discouraging unfair labor practices.” (Sandrini Bros. v. ALRB, supra, 156 Cal.App.3d 878, 884.) In sum, while the Court ofAppeal cited the public policy goal of fostering labor relations stability as justification for its decision to override the Board’s makewhole determination and permit Tri-Fanucchi to commit an unfair labor practice without making its employees whole for economic harm causedthereby, its conclusion was simply incorrect that Tri-Fanucchi’s conduct of challenging a well-established Board precedentfurthered this goal, and the policies and purposes of the ALRA generally. The Board’s award of makewhole furthered the statutory policies of preserving employee free choice and eliminating employer interference in the selection of bargaining representatives. The Court of Appeal’s opinion does not further stability in Jabor relations but undermines the role of the Board, and encourages employers to choose litigation over bargaining, thereby encouraging the commission of ULPs. Forthese reasons, the 33 Court ofAppeal’s conclusion was erroneous and should be reversed. However, more fundamentally, as discussed above, the weighingofthese policy - considerations was role assigned by the Legislature to the Board, and not to the Judiciary. CONCLUSION For the foregoing reasons, the Agricultural Labor Relations Board respectfully requests that the Court grant review. DATED: June 22, 2015 Respectfully submitted, J. ANTONIO BARBOSA Executive Secretary PAUL M. STARKEY Special Board Counsel € ‘ SCOAT P. INCIARDI Senior Board Counsel Attorneys for Petitioner AGRICULTURAL LABOR RELATIONS BOARD 34 CERTIFICATION OF WORD COUNT Pursuant to California Rule.of Court 8.504(d)(1), the undersigned hereby certifies that the Agricultural Labor Relations Board’s Petition for Review contains 8,261 words according to the word count function included in Microsoft Word software with which the brief was written. el T P. INCIARDI Senior Board Counsel Attorney for Petitioner Agricultural Labor Relations Board DATED:June 22, 2015 35 Tri-Fanucchi Farms vy. Agricultural Labor Relations Board Petition for Review Exhibit A RAOReSa CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT TRI-FANUCCHI FARMS, F069419 Petitioner, (40 ALRB No.4) Vv. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; OPINION UNITED FARM WORKERS OF AMERICA, Real Party in Interest. ORIGINAL PROCEEDING;petition for writ of review. Sagaser, Watkins & Wieland, Howard A. Sagaser, William M. Woolman and Ian B. Wielandfor Petitioner. J. Antonio Barbosa, Paul M.Starkey and Scott P. Inciardi for Respondent. Mario Martinez, Thomas P. Lynch and EdgarI. Aguilasochofor Real Party in Interest. -ooQo00- Tri-Fanucchi Farms (Fanucchi) is an agricultural employer conducting farming operations in Kern County. In 1977, Fanucchi’s agricultural employees elected the United Farm Workers union (UFW)to betheir exclusivebargaining representative. However, for reasons UFW hasnotexplained, no bargaining occurred between 1988 and 2012, a period of 24 years. In 2012, UFW contacted Fanucchi and requested the recommencement ofbargaining. Fanucchi refused to bargain with UFW onthe ground that, because of the 24-year hiatus, UFW had abandoned Fanucchi’s agricultural employees. A complaint wasthen filed against Fanucchi for unfair labor practices, and the matter wasreferred to an administrative law judge (ALJ). Ultimately, the Agricultural Labor Relations Board (the Board) upheld the determinations of the AL] that (i) abandonmentandsimilar equitable theories werenot available as defenses to the duty to bargain underthe Agricultural Labor Relations Act (Lab. Code, § 1140 et seq.,!; the ALRA)and(ii) make wholerelief was appropriate underthe circumstances. (See Tri- Fanucchi Farms (2014) 40 ALRB No. 4.) Fanucchi then petitioned this court for review of the Board’s decision in Tri-Fanucchi Farms, supra, 40 ALRB No.4 and we agreed to review the matter. The primary issue raisedin the petition is whether UFW’s past conductindicating abandonment—namely, its failure to bargain for 24 years—gave Fanucchia legal basis to refuse to bargain with UFW oncethat union returned and sought to recommence bargaining. Weaffirm the Board’s position that such facts did not create a defense to bargaining or excuse Fanucchifromits obligation as employer to bargain in good faith with UFW. Rather, in the instant context, the appropriate remedy for UFW’spast dereliction was(and is) in the handsofthe agricultural employees themselves. Thatis, if the employees do not wishto be represented by UFW,their recourseis to replace or decertify UFW by a newelection pursuantto sections 1156.3 or 1156.7. 1 Unless otherwise indicated, all further statutory references are to the Labor Code. Wepreface our opinion with a brief commenton the broaderissue of abandonment. Ina companion casedecided on the same day herewith, Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (May 14, 2015, F068526/F068676) ___Cal.App.4th __, we have concludedthat where a union requests the Board to order mandatory mediation and conciliation (MMC) undersection 1164 et seq., the employer may defendagainst the MMCrequestbyraising the issue of the union’s abandonmentof its representative status, including abandonmentthereof based on such union conduct as unreasonably lengthy absence andinactivity. One reason we concluded that such an abandonmenttheory could properly be raised by the employerin that limited context was the fact that the statutory MMCprocessis not a mere extension of voluntary bargaining, but is a distinct legal procedurethatresults in an imposed collective bargaining agreement (CBA) withoutthe parties’ consent, on terms dictated by a mediator and ordered by the Board. (§§ 1164, subd. (d), 1164.3.) Sinceto a substantial degree the MMCprocess leaves consensual bargaining behind, we held that the employer’s continuing duty to bargain was notan obstacle to raising abandonmentat that stage. Another reason weallowed the employerto raise abandonment in that context was a recognition that, where a long-absent union returned to the scene and requested the MMC process, in general there would notbe an adequate opportunity for employeesto exercise a decertification option if they did not wantto be represented by that union. Moreover,as more fully explained in said companion case, we concluded that allowing such a theory to be raised in response to a union’s MMCrequest wasthe only wayto preserve the employees’ fundamentalstatutory right to choose. Here, in contrast to the above described companioncase, the parties’ dispute arose out of the ordinary bargaining context. The MMCprocess wasnot invoked. Fanucchi simply refused to bargain with UF W onthegroundofthe alleged abandonment. As noted above, we conclude that UFW’s lengthy period of inactivity did not defeat Fanucchi’s duty to engage in bargaining with that union upon request. Accordingly, we 3, affirm the portion ofthe Board’s decision in Tri-Fanucchi F,arms, supra, 40 ALRB No.4 that rejected Fanucchi’s defensesto the duty to bargain and held that Fanucchi committed unfair labor practices under section 1153, subdivisions (a) and (e), for refusal to bargain with UFW andrefusal to provide information. However, for reasonsthat will be more fully explained below, wereverse the portion of Tri-Fanucchi Farms, supra, 40 ALRB No. 4 wherein the Board imposed make whole relief against Fanucchi. Such reliefwas not appropriate in this case because Fanucchi’s pursuit ofjudicial review ofthe abandonmentissue provided neededclarification on that important legal question affecting laborrelations under the ALRA. FACTS AND PROCEDURAL HISTORY Fanucchiis a family-owned farming enterprise in Kern County, California, that grows and harvests a variety of crops, includingcarrots, cotton, tomatoes, garlic, onions and wine grapes. Fanucchi maintains approximately 35 yearround employees. and hires several hundred seasonal employeesthrough various labor contractors, In 1977, an election by secret ballot was held by Fanucchi’s agricultural employees and UFW was voted by themto be their collective bargaining representative. The election ofUFW as the employees’ representative wascertified by the Board at that time. Someinitial bargaining sessions occurred after UFW wascertified. However, based on a poll of its employeesin the early- to mid-1980’s, Fanucchi believed they no longer wanted UF W torepresent them. In 1984, Fanucchi refused to bargain with UFW based on analleged goodfaith belief that UFW nolonger had majority support and also based on alleged union abandonmentofthe bargaining unit andrelated equitable defenses. UFW then brought an unfair labor practices complaint against Fanucchi and the Board held in UFW’sfavor. Fanucchifiled a petition for review of the Board’s decision. In a nonpublished opinion issued by this court in 1987, werejected each of Fanucchi’s claimed defenses and affirmed the Board’s findings that Fanucchi’s refusal to bargain was an unfair labor practice. (Tri-Fanucchi Farmsv. Agricultural Labor Relations Bd. (Nov. 21, 1987, F008776) [nonpub. opn.].)? In 1988, Fanucchi informed UF W that it was willing to bargain. Accordingto Fanucchi, UFW responded in 1988that it would arrange bargaining dates as soonasits negotiator returned from vacation. However, UF W failed to follow through and no bargaining dates were ever scheduled. The next time UFW contactedFanucchi was 24 years later by letter dated September 28, 2012, wherein UFW requested that bargaining berestarted and askedfor certain information from Fanucchi relevantto bargaining. Fanucchi responded by letter of October 19, 2012, stating that it was refusing to bargain with UFW on the ground that UFW had abandoned the bargaining unit and was “no longerthe valid collective bargaining representative of [Fanucchi’s} employees.” Fanucchi’s letter also advisedthat it was seekingjudicial review ofthe abandonment issue—anissue that had notyetbeen specifically addressed by the courts—and Fanucchi insisted that its refusal should be viewed by UF W asa “technical refusal to bargain”to facilitate such judicial review. Alongthese lines, Fanucchi asked UFW to agree to expedited proceedings based on stipulated facts, but UFW was not willing to proceed in that manner. On March 7 and April 16, 2013, UF W filed charges with the Board’s regional office in Visalia alleging that Fanucchi was engaging in unfair labor practices by refusing to bargain and byrefusing to provide information relevant to bargaining. On September 5, 2013, the Board’s general counsel (the General Counsel) filed a consolidated administrative complaint (the Complaint) against Fanucchi, claiming that Fanucchi’s conduct constituted unfair labor practices in violation of section 1153, 2 Wegrant the Board’s requestfor judicial notice of this prior nonpublished opinion. We do not rely on it as precedent, but merely referto it as a part ofthe historical backgroundto the present case. subdivisions(a) and (e) of the ALRA,? and requesting that the Board award make whole relief for the benefit of the employees (§1160.3). | On October8, 2013, Fanucchi filed an answerto the Complaint. Fanucchi’s answer admitted to the material underlying facts, but claimed as a defenseto the duty to bargain that UFWabandonedits representative status and/or had unclean hands and/or wasbarredby laches, all becauseofthe 24-year period ofUFW inactivity. Further, the answerreiterated that Fanucchi’s refusal to bargainwas in goodfaith for the purpose of obtaining judicial review of an importantlaborrelations issue (i.e., union abandonment). A hearing ofthe case was scheduled for October 21, 2013, before ALJ Thomas Sobel. Prior to the hearing, the General Counselfiled a motion in limine with the ALJ requesting the exclusionofall evidence relating to Fanucchi’s abandonmentdefense on the ground that such a defense to an employer’s duty to bargain wasnot recognized under established Board precedent. The ALJ granted the motionin limine, which he regarded as in substance a motionto strike or a judgmenton the pleadings relating to Fanucchi’s abandonmentdefense and the related equitable defenses premised on the 24-yearhiatus. The ALJ held that even if the facts Fanucchi sought to prove weretrue, they did not establish a defense to bargaining; therefore, the motion was granted. Having rejected Fanucchi’s claimed defensesto the duty to bargain, the ALJ proceededto consider the merits of the Complaintin light of Fanucchi’s answer, which had admitted to the material factual allegations. The ALJ found that Fanucchi’s refusal to bargain, etc., constituted unfair labor practices. Onthe issue ofwhetherto award make whole relief, the ALJ found that Fanucchi’s refusal to bargain as a means of seeking judicial review wasnotjustifiable because the Board’s precedents were very clear that 3 Undersection 1153,it is an unfair labor practice for an employer“[t]o interfere with, restrain, or coerce agricultural employeesin the exercise oftherights guaranteed in Section 1152” (id., subd. (a); or “[t]o refuse to bargain colléctively in good faith with labor organizations certified pursuantto the provisions of Chapter 5 (commencing with Section 1 156) ofthis part” (id., subd. (e)). purported abandonmentbased on past union inactivity wasnot a defense to a current request to bargain by the same union. Therefore, the ALJ found that Fanucchi’s efforts to obtain judicial review of a “settled”labor issue did not further the purposes of the ALRA. Consequently, the ALJ held that make wholerelief should be awarded against Fanucchi. The ALJ’s written decision was transferred to the Board. On November20, 2013, Fanucchi filed with the Board 15 “exceptions” to the ALJ’s decision. Among other things, the exceptions challenged the ALJ’s decision to treat the motion in limine asa motion for judgmenton the pleadings, the ALJ’s rejection ofFanucchi’s abandonment and related equitable defenses, the ALJ’s refusal to take evidence concerning those defenses, and the ALJ’s decision to award make wholerelief. On April 23, 2014, the Board issued its decision, which was reported at Tri-. Fanucchi Farms, supra, 40 ALRB No. 4. The Board found, in agreement with the ALJ, that Fanucchi’srefusal to bargain with UFW and to provide information constituted violations of section 1153, subdivisions (a) and (e). The Board rejected Fanucchi’s contentionthat a defense existedto its duty to bargain based on the alleged abandonment on the part of UFW. The Board likewise rejected the similarly framed equitable defenses of laches, estoppel and unclean hands based on the same 24-year bargaining hiatus. The equitable claims were also rejected on the additional groundthat there was no prejudice or harm caused to Fanucchi. On the question of whether make whole relief was proper, the Board expressed that because there wasalready established Board precedentrejecting the abandonmenttheory, “[Fanucchi’s] position cannot besaid to further the policies and purposes of the ALRA.” (Tri-Fanucchi Farms, supra, 40 ALRB No.4, p. 18.) Accordingly, the Board agreed with the ALJ that make whole reliefwas appropriate. Fanucchifiled a petition to this court seeking our review of the Board’s decision in Tri-Fanucchi Farms, supra, 40 ALRB No. 4. Weissued a writ of review. DISCUSSION I. Standard of Review The issuesraised by Fanucchiare legal, primarily involving the interpretation of the ALRA and the question ofthe availability of certain defenses to an employer’s statutory duty to bargain under the ALRA. Integral to these questionsare the basic legislative purposes and policies of the ALRA. Since the Board is the administrative agency entrusted with enforcementofthe ALRA,its interpretation of the ALRA is given deference by the courts and will be followedifnot clearly erroneous. (Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 24 (Montebello Rose).) Nevertheless,it is fundamental in statutory construction that courts should ascertain the intent of the Legislature so as to effectuate the purposeofthe law. (JR. Norton Co.-v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 29 (JR: Norton Co.); Bodinson Mjg. Co. v. California E. Com. (1941) 17 Cal.2d 321, 326 [courts state the true meaning of a statute finally and conclusively].) Thus, while an administrative agency is entitled to deference wheninterpreting policy in its field of expertise, it cannot alter or amend the statute it is interpreting, or enlarge or impairits scope. (.R. Norton Co., supra, at p. 29; Adamek & Dessert, Inc. v. Agricultural Labor Relations Bd. (1986) 178 Cal.App.3d 970, 978 (Adamek & Dessert).) II. ALRA Statutory Overview The issue ofwhether abandonmentor otherequitable theories may beraised as a defenseto bargaining requires an understandingofthe statutory provisions and main purposes ofthe ALRA. Wetherefore begin with a brief overview of the ALRA. In 1975, the California Legislature enacted the ALRA “to providefor collective- bargainingrights for agricultural employees” (§ 1140.2) by puttingirito place a system of laws generally patterned after the National Labor Relations Act (29 U.S.C. § 151; the NLRA). (1B. Norton Co., supra, 26 Cal.3d atp. 8.) The ALRA declaresit is the policy ofthe State of California “to encourage and protect the right of agricultural employeesto 8. full freedom of association, self-organization, and designation of representatives of their own choosing... for the purposeof collective bargaining or other mutualaid or protection.” (§ 1140:2.)4 As noted by our Supreme Court, “[a] central feature in the promotionofthispolicy is the [ALRA’s] procedure for agricultural employeesto elect representatives ‘for the purpose ofcollective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment.’ (/d., § 1156 et seq.)” (LR. Norton Co., supra, at p. 8.) Underthat election procedure,if a properpetition has been filed, the Board directs that an election be held by a secret ballot vote of employees to determine an issue of | employee representation, such as whethera particular labor organization shall be the | employees’ bargaining representative.> (§§ 1156, 1156.3 .) Exceptin certain runoff elections, every ballot “shall provide the employee with the opportunity to vote against representation by a labor organization by providing an appropriate space designated ‘No Labor Organizations.’” (§ 1156.3, subd. (c).) After the election, the Board “shall certify” the result unlessit determines based on a sustained election challenge “that there are sufficient grounds to refuse to do so.” (§ 1156.3, subd. (e)(2) [stating grounds for such refusal].) If a labor organization (i.e., a union)® is certified as the winner of such an election and thus becomes the employees’ bargaining representative, certain legal consequences follow. First, a statutory bar exists to holding another representation election for at least the initial one-year certificationperiod. (§§ 1155.2, subd. (b), 1156.5, 1156.6.) Second, a duty to bargain is created, which is owed by the employer to the union andvice versa. 4 The same employeesalso havethe right “to refrain from any orall such activities ....” (§ 1152.) 5 A similar procedure exists by which the agricultural employees mayvote to decertify a labor organization so thatit is no longertheir representative. (§ 1 156.7.) 6 The terms “union” and “labor organization” are used synonymously herein. (§§ 1153, subd. (e),.1154, subd. (c), 1152.) However, unlike the election bar, the duty to bargain does not expire with the initial one-year.period. That is because a union’s status as the employees’ certified bargaining representativecontinues beyond the one-year period for purposes of extending the parties’ duty to bargain. (Montebello Rose Co., supra, 119 Cal.App.3dat pp. 24-26, 29 [affirming ALRB’s conclusion thata certified union continues to enjoy thatstatus after the initial certification year expires].)7 ' Consequently,it has been heldthat once a unionis certified as the bargaining representative of an employer’s agricultural employees, the employer’s duty to bargain with that union continues until the union is replaced or decertified through a subsequent election pursuant to sections 1156.3 or 1156.7. (Montebello Rose, supra, at pp. 23-24, 29 [approvingstatutory interpretation adopted by the Board in Kaplan’s Fruit & Produce Co., Inc. (1977) 3 ALRB No. 28]; Adamek & Dessert, supra, 178 Cal.App.3d at p. 983; Bruce Church, Inc. (1991) 17 ALRB No.1, p. 13 [stating principle adhered to bythe Board that“a [uJnion remainsthecertified representative until decertified”]; Pictsweet Mushroom Farms (2003) 29 ALRB No.3, p. 7 [same].)8 In summary, the ALRA recognizes, protects and promotes agricultural employees’ right to collective bargaining (§ 1140.2) and,in the furtheranceofthat right, the ALRA requires the agricultural employer and the employees’ certified representative to bargain collectively in good faith. (§§ 1153, subd. (e), 1154, subd. (c).) The ALRA defines the parties’ mutual obligation to bargain collectively in good faith as follows: “[T]o bargain collectively in goodfaith is the performanceofthe mutual obligation of the agricultural 7 Although section 1155.2, subdivision (b), refers to an initial one-year period of certification (and allows for a one-year extension thereof), thattime limitation has been held to relate only to the election bar, not to the duty to bargain aspectof certification. (Montebello Rose, supra, 119 Cal.App.3d at pp. 24-30.) 8 A third consequenceofcertification is that no CBA may be negotiated or entered by the employer with any other (not currently certified) labor organization. (§ 1153, subd. (f).) The ALRA further declares that only a certified labor organization may be a party to a legally valid CBA. (§ 1159.) 10. employer and the representative of the agricultural employees to meetat reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment,or the negotiation of an agreement, or any questions arising thereunder, and the execution of a written contract incorporating any agreement reachedifrequested by either party, but such obligation doesnot compeleither party to agree to a proposal or require the making of a concession.” (§ 1155.2, subd. (a).) When an employerorlabor organization fails to bargain in goodfaith as required, or when otherunfair labor practices (as defined in the ALRA)haveoccurred, recourse to the Board is provided and the Board is empowered to issue orders or take remedial action to effectuate the purposes of the ALRA. (§§ 1160—1160.9; see, e.g., Harry Carian Sales v. Agricultural Labor Relations Bd. (1985) 39 Cal.3d 209, 229-230 [discussing Board’s remedial authority relating to unfair laborpractices].) Il. Abandonment With the abovestatutory framework in mind, we now considertheissue of whether UFW’s lengthy absence andinactivity in this case created an abandonment defense to Fanucchi’s duty to bargain. We holdit did not. Webegin with the Board’s perspective on the issue. In its decision in the instant case, reported at Tri-Fanucchi Farms, supra, 40 ALRB No. 4, the Board explainedits rejection of Fanucchi’s claim that UFW’s conduct provided a defenseto bargaining: “The Board’s previous decisions have been very clear that, under the ALRA,the fact that a labor organization has been inactive or absent, even for an extended period oftime, does not represent a defense to the employer’s duty to bargain. (Dole Fresh Fruit Co., Inc. (1996) 22 ALRB No.4; Pictsweet Mushroom Farms{, supra,] 29 ALRB No. 3; San Joaquin Tomato Growers, Inc. (2011) 37 ALRBNo.5.) The Board recently reaffirmedits holdings on abandonmentandconfirmedthat, except in cases wherethe union disclaimsinterest in representing the bargaining unit or becomes defunct, the union remainscertified [for purposesofthe employer’s duty to bargain] until removed or replaced through the ALRA’s election procedures, regardless of any bargaining hiatusor union inactivity 11. that may have occurred. (Arnaudo Brothers, LP (2014) 40 ALRB No. 315] pp. 9-12.). These principles stem from the legislative intent inherentin the ALRA that the powerto select and.remove unions as bargaining representatives should reside with agricultural employees andnot with their employers. [Citation.] The facts allegedby [Fanucchi] fall squarely within this well-established rule.” (Tri-Fanucchi Farms, supra, 40 ALRB No.4, p. 8, fn. omitted.) Additionally, in the same decision ofthis matter in Tri-FanucchiFarms, supra, 40 ALRB No.4, the Board further explained that the principal remedy for such union failings—namely, a new election—is left in the handsofthe agricultural employees: “In cases where a.unionis failing to adequately carry out its duties as bargaining representative and employees’ appeals to the unionitself are insufficient to resolve thesituation, the remedy for such dereliction is for the membersofthe bargaining unit to seek to decertify the unionor replace it with another union through the ALRA’selection procedures. Bargaining unit members may also, where appropriate, seek to enforce their union’s duty offair representation. [Citation.] While these procedures are unavailable to the employer, it need not stand idly by if a certified union refuses to cometo the bargaining table but may use the ALRA’sunfair labor practice proceduresto assert a claim that a unionis unlawfully refusing to bargain. [Citation.] Additionally, a union that fails to respond to changes to terms and conditions of employment proposed bythe employer may be held to have waivedits right to bargain over those changes, privileging the employer to implement them without bargaining. [Citation.] However, what the employer may not dois impose its own choice on employees by unilaterally determiningthatit will no longer bargain with the union. [{] Accordingly, [Fanucchi’s]} claim that it was not obligated to bargain with the UFW dueto analleged period of inactivity by the UFW doesnot representa legally cognizable defense to the duty to bargain under the ALRA....” (Zri-Fanucchi F.arms, supra, 40 ALRB No.4, pp. 8-9.) The Board’s position (recited above) on the abandonmentissueasit relates to the employer’s duty to bargain is consistent with how California appellate courts have construed the ALRA. An importantprinciple recognized in the ALRA casesis that an employer’s duty to bargain withthe originally certified union continuesuntil that union is replacedor decertified by a subsequentelection. (See Montebello Rose, supra, 119 12. Cal.App.3d at pp. 23-24 [“employer’s duty to bargain does notlapse after one year but continues until such time as the unionis officially decertified as the employee bargaining representative”); F&P Growers Assn. v. Agricultural Labor Relations Bd. (1985) 168 Cal.App.3d 667, 672 (F&P Growers) {an employer’s duty to bargain does not lapse after one year even in the absence of an extension”); Adamek & Dessert, supra, 178 Cal.App.3d at p. 983 [“the companyhas a duty to bargain with the union until the union is decertified through a second election”].) In accordance with this principle, if a certified union’sneglect or inaction causes the agricultural employeesto be dissatisfied with that union, the appropriateremedyis for the employees to pursue a decertification election. (See, e.g., §§ 1156.3 & 1156.7; F&P Growers, supra, at pp. 674-678.) As one court putit, “So long as the employeescan petition for a new election if they wish to removethe union, the employerhas no real cause for concern about whetherit is bargaining with the true representative ofits employees.” (Montebello Rose Co., supra, at p. 28.)9 The case ofF&P Growers sheds additional light on the issue before us. In F@P Growers, the employerrefused to continue bargaining with the originally certified union in that case, the UFW,becauseallegedly “objective criteria revealed that a majority of employees in the bargaining unit no longer supported the UFW ....” (F&P Growers, supra, 168 Cal.App.3d at p. 670.) The employer had arguedthatsince the NLRA’s rebuttable presumption rule had been found applicable to the ALRA,other related NLRA precedents likewise should be adopted, including the rule allowing an employerto refuse to bargain with a certified union if the employer had a goodfaith beliefthat the union had lost its majority support. (F&P Growers, supra,at pp. 672-677.) In resolvingthatissue, 9 Wenote the employer’s continuing duty to bargain with a certified union does prejudice the employer because, in accordance with how bargaining is defined underthe ALRA,both the employerand the union retain their respective rights of contractual consentas guaranteed in section 1155.2, subdivision (a), whichstates that the obligation to bargain in goodfaith “does not compel either party to agree to a proposalor require the making of a concession.” 13. the Court ofAppeal concludedthatthe loss of majority support defense-to bargaining with a particular union wasclearlyinapplicable to the ALRA because of important differences between the ALRA and the NLRA. (F&P Growers, supra, at pp. 674-676.) For example, the NLRA permitted an employerto bargain with a union that had demonstratedits majority status by meansother than an election, but the ALRA only allowed an employer to bargain with a union that had won anelection. Moreover, the NLRA permitted employers to petition for an election, but the ALRA did not allow employersto file election petitions regarding the certification or decertification of a union. (F&P Growers, supra, at pp. 674-678.) As noted in F&P Growers, these distinctive provisions ofthe ALRA indicated the Legislature did not intendfor an agricultural employerto participate in deciding whetherornotit shall bargain with a particular union. Such choice wasleft solely to the employees, and was removed from the employer. (F&P Growers, supra, at pp. 677-678.) Forthese reasons, the Court of Appealheld that employers could not refuse to bargain with a particular union based on a goodfaith belief in loss of majority status, since that would allow employers to do indirectly (i.e., effectively decertify a union) what the Legislature had removed from the employer’s purview. (Id. at p. 677.) In the present case, Fanucchi’s assertion of abandonmentas 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. In both cases, the employer refused to bargain with a previously certified union based on a factual developmentthat allegedly resulted in a defense to bargaining. As F&P Growers correctly held, the Legislature did not intend for an agricultural employerto participate in deciding whetherornotit shall bargain with a particular union and,therefore, the employerin that case could not refuse to bargain with the certified union based on a claimed defense of loss of majority support. (See P&P Growers, supra, 168 Cal.App.3d at pp. 677-678.) In light of the similar nature ofthe case at bench, webelieve that the same reasoning applies and the sameresult 14. should follow. Thus, here, Fanucchi wasnot entitled to refuse to bargain with UFW based on UFW’spastfailings or inactivity, and such conductdid not create a defense to bargaining, whether labeled as abandonmentor otherwise. Moreover, “[a] guiding principle for evaluating the Board’s decision ... is that an administrative agencyis entitled to strong deference when interpreting policy in its field of expertise” (Montebello Rose Co., supra, 119 Cal.App.3d at p. 24). Based on the foregoing analysis ofthe present issue,it is appropriate that we defer to the Board’s resolution thereof. In implementing the ALRA andits policies, the Board held in the present case (Tri-Fanucchi Farms, supra, 40 ALRB No. 4), as it has held in previous Board decisions, that past union absence or inactivity do not create an abandonment defense to the duty to bargain. In light of existing judicial construction of the ALRA as reflected in the Court ofAppeal decisions noted above, the Board’s position on this issue constituted a reasonable interpretation and application of the ALRA. Accordingly, the Board’s decision on thatdiscrete issueis hereby affirmed. Since Fanucchi had no valid defense to the duty to bargain,it follows thatits refusal to bargain with UF W orto provide information constituted unfair labor practices, as the Board further held. We affirm these latter findings as well. IV. Related Equitable Defenses For the same reasonssetforth above regarding abandonment, therelated equitable defenses premised on the same underlying facts—namely, UFW’s failure to bargain for 24 years—likewise did not constitute defenses to the duty to bargain under the ALRA. In substance, these equitable defenses raised by Fanucchi (i.e., laches, unclean hands, and estoppel) were merely a reiteration under different labels of the same essential claim of abandonment. Weaffirm the Board’s conclusion that UFW’s past inactivity and/or absence did not create a defense to bargaining underthese alternative equitable theories. 15, ‘Vv, Make Whole Relief We now consider whether make whole relief was appropriately ordered by the Board. We begin byproviding a brief description ofthis unique remedy. If an employer is guilty of an unlawfullaborpractice for refusal to bargain in good faith, the Board has discretion under the ALRA to impose a make whole remedy against the employer to compensate the employeesfor losses incurred as a result ofthe delays in the collective bargaining process. (See J.R. Norton Co., supra, 26 Cal.3d at pp. 27, 36.) The purpose of the make whole remedyis to put the parties and the employees in the economic positions that they presumably would havebeenin ifthe employer had not unlawfully refused to bargain. (F&P Growers, supra, 168 Cal.App.3dat p. 682.) The statutory provision of the ALRA authorizing make wholereliefis section 1160.3. Section 1160.3 providesin relevant part that wheneverthe Boardfinds an employer guilty of anunfair labor practice for refusal to bargain, the Board may enter an order “requiring such person to cease and desist from suchunfair labor practice, [and] to take affirmative action, including ... making employees whole, when the board deems suchreliefappropriate, for the loss ofpay resultingfrom the employer's refusalto bargain, and to provide suchotherrelief as will effectuate the polices ofthis part.” (Italics added.) As the wording ofthe statute clearly indicates, make wholereliefis discretionary in natureandis to be applied only where the Board determinesit is appropriate underthe circumstances. (J.R. Norton Co., supra, 26 Cal.3d at pp. 37-38; F&P Growers, supra, 168 Cal.App.3d at pp. 680-682.) In determining whetheror not such relief is appropriate, the Board must consider the facts and equities of each particular case. (J.R. Norton Co., supra, 26 Cal.3d at pp. 37-38.) Thus, it is not permissible to impose make wholerelief on a per se basis, such as by imposing it automatically whenever an employer is found to have committed an unfair labor practice by refusing to bargain. (Ibid.) In F&P Growers, the Court of Appeal explained the implicationsin that case ofthis rule against per se relief: “[E]ven 16. though the employer may have hadnoright to be involved in deciding whetherit would or would not bargain with [UFW], the Board wasstill required to examine the employer’s conduct for particular facts and circumstances to see if the make whole remedy was appropriate. The fact that we now hold that the employer was required to bargain with [UFW] regardlessof its good faith belief does not negate the discretionary nature of the make whole relief under the statute.... Even thoughthat belief is no defense for failure to bargain, the languageofthestatute is clear that the Board issue the make wholerelief only whenit “deems’the relief appropriate.” (F&P Growers, supra, 168 Cal.App.3d at p. 681.) : A special type of case in whichthe issue ofmake wholerelief sometimes arises is where the employer has madea “‘technical’ refusal to bargain” as a means of obtaining Judicial review ofthe validity of a representation election. (J.R. Norton Co., supra, 26 Cal.3d at p. 27.) In JR. Norton Co., the Supreme Court considered the issue ofmake wholerelief in the context of such a technical refusal to bargain. (Jd. at pp. 27-40.) The court observed that the technical refusal to bargain procedureis necessary because election certification decisions by the Boardare not subject to direct judicial review (id. at p. 27), and it is important to provide a check on arbitrary action by the Board in regard to representation elections (id. at p. 30). The court then discussed the standard to be applied by the Board regarding make wholerelief in such cases. In particular, the court held that where an employer engages in a technicalrefusal to bargain but ultimately loses the election challenge after obtaining judicial review, the Board is required to evaluate whether to impose make wholerelief under the following standard: “[T]he Board must determine from the totality ofthe employer’s conduct whether it went through the motions of contesting the election results as an elaborate pretense to avoid bargaining or whetherit litigated in a reasonable goodfaith belief that the union would not have been freely selected by the employeesas their bargaining representative hadthe election been properly conducted. We emphasize thatthis holding does not imply that whenever the 17. Board finds an employer has failed to present a primafacie case, andthe finding is subsequently upheld bythe courts, the Board may order make-whole relief. Such decision by hind-sight would impermissibly deter judicial review ofclose casesthat raise importantissues concerning whetherthe election was conducted in a mannerthat truly protected the employees’ right offree choice.” (/d.at p. 39,)10 In the case before us, contrary to Fanucchi’s characterization ofits actions, the refusal to bargain was not technical(in the 1. R. Norton Co. sense) because the validity of the representation election andoriginalcertification ofUFW basedon thatelection were not at issue. Where,as here, the employer’s refusal to bargain wasnot technical, F&P Growers, provides an instructive analysis of the Board’s generally followed approach to the issue ofmake wholerelief in such cases.!! In F&PGrowers, the Board had adopted a particular standard for deciding on whether make wholerelief was appropriate. That standard wasas follows: “[W]e consider on a case-by-casebasis the extent to which the public interest in the employer’s position weighs against the harm doneto the employees byits refusal to bargain. Unlesslitigation of the employer’s position furthers the policies and purposes of the [ALRA], the employer, not the employees, should ultimately bear the financial risk of its choiceto litigate rather than bargain.” (F&P Growers, supra, at p. 682.) The Court ofAppeal held that the above standard was a proper methodfor the Board to use in determining whether make wholereliefwas appropriate: “The Board 10 In J.R. Norton Co., the Supreme Court concludedits discussion ofmake whole relief with the following words: “In short, a per se remedy is impermissible in this setting. Not only are there degrees of violations[citation] but, more fundamentally, other factors peculiar to labor relations may outweigh the appropriateness of make-wholereliefin particular cases. [Citation.] The Board’s remedialpowers donot exist simply to reallocate monetary loss to whomeverit considers to be most deserving; they exist, as appears from thestatute itself, to effectuate the policies of the [ALRA].” (JR. Norton Co., supra, 26 Cal.3d atpp. 39-40.) Il The court in P&P Growers expressly acknowledgedthat“the case before us does not involve a ‘technicalrefusal’ to bargain ....” (F&P Growers, supra, 168 Cal.App.3dat p. 681.) 18. used its own standards in determining appropriatenessofthe remedyin this particular case, and this they were entitledto do.” (Id. at p. 682.) Nevertheless, in applying that standard as a framework for determiningthe appropriateness of the remedy, the Board still must reach its decision in a discretionary (not a per se) manner based onthe facts and equities of the particular case. As the Court ofAppeal stated: “Since the Board in the instant case did in fact examinethefacts and circumstances of the particular case, and did not apply the make whole remedypezse or automatically, but applied it only afterit exercised discretion and deemedthatrelief appropriate, the order herein was notan abuse of discretion.... [{] The language of the Board’s decision showsthat they knew they had to examine each case individually, and the language oftheir decision indicates that they examined the case on a case-by-casebasis.” (Ibid.) Here, the Boardexplicitly followed the standard that was approved in F&P Growers. The Board’s written decision stated as follows: “Here, because [Fanucchi] is not seeking review ofa certification election, F&P Growers applies, rather than J.R. Norton. The issue, therefore, is whether the public interest in [Fanucchi’s] position outweighs the harm done to employees byits refusal to bargain. Theposition taken by [Fanucchi] is based principally on its contention the UFW forfeitedits certification by abandoning the bargaining unit. As discussed above,this position is contrary to over 30 years of Board precedent holding that abandonmentis not a defenseto the duty to bargain. Accordingly, [Fanucchi’s] position cannotbe said to further the policies and purposes ofthe ALRA. [Citation.] [9]... [f] Based upon our review of the facts and circumstances and the equities of this case, we conclude, in agreement with the ALJ, that an award of makewholeis appropriate and that, under the circumstances presentedin this case, ‘[Fanucchi], not the employees, should ultimately bearthe financial risk of [Fanucchi’s] choiceto litigate rather than bargain.’ [Citation.]” (Tri-Fanucchi Farms, supra, 40 ALRB No.4, pp. 18, 20, fns. omitted.) 19, It is clear that the Board’s decision to impose make whole reliefwas based solely on its legal evaluation or value judgmentthat-Fanucchi’s litigation of the abandonment issue herein—which was premised on UFW’s 24 years-of inactivity—did not furtherthe policies and purposes ofthe ALRA. With all due deference to the Board regarding ALRA policy issues, we believe the Board wasclearly wronginits legal conclusion that -Fanucchi’s litigation efforts in this matter did not further the purposesandpolicies of the ALRA, as we now explain. Although it is true that the Board’s prior decisions stated that even “a prolonged period”ofunion absenceorinactivity did not create an abandonmentdefenseto the employer’s duty to bargain (e.g., San Joaquin Tomato Growers, Inc., supra, 37 ALRB No.5, p. 4; Pictsweet Mushroom Farms, supra, 29 ARLB No.3, p. 14), no appellate court has (or had) decided that specific issue until, in this case, Fanucchi sought and obtained judicial review. Ultimately,it is the courts that must ascertain the intent of a statute so as to effectuate the purposeof the law. (JR. Norton Co., supra, 26 Cal.3d at p. 29; Bodinson Mfg. Co. v. California E. Com., supra, 17 Cal.2d at p. 326 [the courts state the meaningofa statute finally and conclusively].) Moreover, notwithstanding the Board’s prior decisions, we believe the question of how an appellate court would actually rule when confronted with the novel situation of such Jong-term union absence or egregious inactivity (i.e., 24 years) as alleged here was far from certain,}2 Additionally, the question of UFW abandonment(or apparent abandonment) of bargaining units is not an isolated incidentlimited to the presentcase, but apparently has been a recurring problem,as reflected by the Board’s owncases andthe cases before this court in which 12 Asnoted by Fanucchi, neither the Board nor the courts would be unconcernedthat a union has apparently disregarded its statutory responsibilities to a bargaining unit for over two decades, as occurred here. It was not unreasonableto raise the issue of abandonment here, since such extreme dereliction would seem to be antithetical to the ALRA policies ofhaving actual employee representation by the elected union and of promotingthe collective bargaining relationship. (See, e.g., §§ 1140.2, 1152, & 1155.2, subd. (a).) 20. the issue has been raised. Forall of thesereasons, and despite the Board’s prior attempts to summarily dispose of the issue, the question has remainedto a significant degree unsettled and controversial. Against this larger backdrop,it is clear to us that judicial review of the issue was reasonably necessary andhelpfulto all parties concerned, including both unions andagricultural employers, for the beneficial purposeofclarifying and/or confirming the law. Therefore, Fanucchi’s advancementofthis litigation plainly furthered the broader purposes of the ALRAto promotegreater stability in laborrelations by obtaining an appellate decision on this important issue. Accordingly, we conclude that the Board prejudicially erred when it ordered make wholereliefin this case, and that portion of the Board’s orderis hereby reversed. VI. Other Issues Need Not Be Reached In view ofthe fact that we have decided, as a matter of law, the question ofthe nonavailability ofFanucchi’s abandonment-related defensesto the duty to bargain, and that we have further concluded, as a matter of law, that make whole reliefwas improper in this case, we find it unnecessary to address Fanucchi’s remaining contentions. Those remaining contentions, largely dealing with procedural and due processissues would not—even if correct—changeour disposition ofthe principal legal issues as indicated above or otherwise require a different outcome. Wetherefore do not reach those additional matters. 21. DISPOSITION The portion of the Board’s decision in Tri-Fanucchi Farms, supra, 40 ALRB . No. 4, which imposed make wholerelief against Fanucchiis reversed. The balance ofthe Board’s decision is affirmed. Each party to bear its own costs. WE CONCUR: — Aue HILL, P.J. ery — LEVY, J 22, Paul M. Starkey Agricultural Labor Relations Board 1325 J Street, Ste 1900-B Sacramento, CA 95814 } F069419 Tri-Fanucchi Farms v. ALRB S STATE OF CALIFORNIA AGRICULTURAL LABOR RELATIONS BOARD PROOFOF SERVICE BY MAIL (1013a, 2015.5 C.CP.) Tam a citizen of the United States and a resident ofthe County of Sacramento. I am over the age of eighteen years and nota party to the within entitled action. Mybusiness address is: 1325 J Street, Suite 1900-B, Sacramento, California 95814. On June 22, 2015, I served the within PETITION FOR REVIEW on parties in said action by placinga true copy thereof enclosedin a sealed envelope with postage thereon — fully prepaid, in the United States mail at Sacramento, California, addressedas follows: Via U.S. Mail Howard A. Sagaser Sylvia Torres-Guillen Sagaser & Associates 1325 J Street, Suite 1900-A 7550 N. Palm Avenue, Suite 100 Sacramento, California 95814 Fresno, CA 93711-5500 Mario G. Martinez MARTINEZ AGUILASOCHO & LYNCH P.O. Box 11208 Bakersfield, CA 93389-1208 Clerk of Court of Appeal Fifth Appellate District 2424 Ventura Street Fresno, California 93721 Kamala D. Harris, Attorney General Office of the Attorney General 1300 I Street Sacramento, California 95814 Executed on June 22, 2015, at Sacramento, California. I certify (or declare), under penalty of perjury that the foregoingis true and correct. SoukSoe Sonia Louie