Sagaser, Watkins & Wieland, Howard A Sagaser, Ian B. Wieland and Charles P. Hamamjian for Petitioner. Santiago Avila-Gomes, Todd M. Ratshin and James E. Coffey for Respondent. No appearance for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(44 ALRB No. 4)
ORIGINAL PROCEEDINGS; petition for writ of review. Mary Miller Cracraft, Administrative Law Judge. Sagaser, Watkins & Wieland, Howard A Sagaser, Ian B. Wieland and Charles P. Hamamjian for Petitioner. Santiago Avila-Gomes, Todd M. Ratshin and James E. Coffey for Respondent. No appearance for Real Party in Interest.
In our 2015 opinion relating to this case, we upheld a decision by the Agricultural Labor Relations Board (the Board) that petitioner P & M Vanderpoel Dairy (P & M) committed an unfair labor practice by firing several dairy workers who had jointly requested a pay raise. The Board's decision as affirmed by this court included a remedial order that P & M reinstate the dismissed workers and make them whole for all wages and other economic losses suffered as a result of their unlawful dismissals. Since that time, the parties have informally resolved all backpay issues regarding the fired workers except as to one worker—namely, Jose Noel Castellon Martinez (Martinez). To resolve the remaining dispute as to the backpay owed to Martinez, subsequent evidentiary proceedings were held before an administrative law judge (ALJ) who made specific findings. In 2018, the Board affirmed the ALJ's decision and findings, with one minor revision, and concluded that P & M owed Martinez backpay in the sum of $20,707, plus interest and excess tax liability. The Board's decision on the amount of backpay owed to Martinez is reported at P & M Vanderpoel Dairy (2018) 44 ALRB No. 4 (hereafter 44 ALRB No. 4).
Specifically, in our nonpublished opinion in P & M Vanderpoel Dairy v. ALRB (Oct. 9, 2015, F070149), we affirmed the Board's decision reported at P & M Vanderpoel Dairy (2014) 40 ALRB No. 8.
On petition for review to this court, P & M challenges the Board's decision in 44 ALRB No. 4, arguing among other things that substantial evidence did not support the backpay findings and that the Board failed to follow the law or denied a fair hearing to P & M. We find P & M's arguments unpersuasive. Because substantial evidence supported the findings of the Board on the amount of backpay owed to Martinez, and the Board's remedy was not shown to be an attempt to achieve ends other than those which fairly effectuate the remedial policies of the Agricultural Labor Relations Act (ALRA), the decision of the Board in 44 ALRB No. 4 is hereby affirmed.
The ALRA is codified at Labor Code section 1140 et seq. Although its official title is the "Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975" (Lab. Code, § 1140), it is commonly referred to as the ALRA.
FACTS AND PROCEDURAL HISTORY
P & M is a dairy located in Tipton, California, owned primarily by Michael Vanderpoel. At the time of the relevant events, Michael Vanderpoel's son, Matthew, helped manage the day-to-day operations of the dairy and supervised some of the dairy workers. The Board's 2014 Holding that Vanderpoel Committed Unfair Labor Practice
In 2013, Martinez filed an unfair labor practice charge against P & M, alleging that P & M violated the ALRA when Michael Vanderpoel fired him and four other dairy workers on April 17, 2013, for engaging in protected concerted activity. In early 2014, an ALJ conducted evidentiary hearings and issued a recommended decision in which he found that P & M violated section 1153, subdivision (a) of the ALRA by discharging Martinez and four other dairy workers or "milkers" for jointly requesting a $1.00 per hour wage increase from $8.00 to $9.00 per hour. After the Board's General Counsel and P & M filed separate exceptions, the Board reviewed the ALJ's findings and conclusions. On August 28, 2014, the Board issued a decision affirming the ALJ's factual findings and legal conclusions and adopting the ALJ's recommended order. The Board's decision on that matter was reported at P & M Vanderpoel Dairy, supra, 40 ALRB No. 8 (hereafter 40 ALRB No. 8). In that decision, the Board ordered P & M to reinstate the dairy workers and make them whole for all wages and other economic losses suffered as a result of their unlawful dismissals.
P & M sought review of 40 ALRB No. 8 to this court, and in a nonpublished decision issued in 2015, we affirmed the Board's decision. (P & M Vanderpoel Dairy v. ALRB, supra, F070149.) In 2016, the California Supreme Court denied P & M's petition for review, and the United States Supreme Court denied P & M's petition for writ of certiorari. (See P & M Vanderpoel Dairy v. ALRB, review den. Jan. 27, 2016, S230401, cert. den. ___ U.S. ___ .) Proceedings Seeking Compliance with the Board's Remedial Order.
After P & M's judicial challenge of the Board's findings proved unsuccessful, the Board's Regional Director sought full compliance with the Board's remedial order set forth in 40 ALRB No. 8 requiring that P & M make the dismissed dairy workers whole.
A Notice of Hearing and Backpay Specification (the backpay specification) was issued by the Board's Regional Director. The backpay specification noted that the parties had reached agreement on the amount of backpay due to four of the five dismissed dairy workers. However, the parties were unable to resolve the amount of backpay due to Martinez under the Board's order, and therefore a hearing on that issue was necessary. The backpay specification further stated that "[t]he backpay liability period" for Martinez "began on April 17, 2013 and ended on October 21, 2016." April 17, 2013 was the date of termination, and October 21, 2016 was the date that P & M made an unconditional offer of reinstatement to Martinez. This period is referred to as the backpay period.
In accordance with a Board regulation (see Cal. Code Regs, tit. 8, § 20291), the backpay specification included information on the methodology, figures, and calculations utilized in making computations for gross backpay, interim earnings, net backpay, interest, and excess tax liability. According to the backpay specification, the gross backpay figure for Martinez was calculated using a representative employee who worked similar hours and days at P & M prior to Martinez's termination, and the net backpay figure was calculated by deducting Martinez's interim earnings from other employment during the backpay period. The net backpay allegedly due to Martinez was $23,094, plus interest ($2,643) and excess tax liability ($1,666). An amendment to the backpay specification was later issued by the Regional Director, which increased Martinez's interim earnings by $887, thereby decreasing the net backpay figure by that amount.
After the issuance of the backpay specification by the Regional Director, the parties entered a formal settlement agreement which provided the amount of backpay that would be paid by P & M to the four dairy workers other than Martinez. The Board approved the settlement. As noted, no settlement was reached concerning Martinez. P & M filed an answer and an amended answer to the backpay specification, contesting the backpay amount assertedly owed to Martinez and the factual basis for determining the amount due. Hearing Before the ALJ
On October 31, 2017, an evidentiary hearing was held before the ALJ to determine the amount of backpay owed by P & M to Martinez. At the ALJ hearing, attorneys for the General Counsel sought to show the calculations and methodology used in the backpay specification, as amended, resulted in a reasonable and appropriate estimate of the amount due to remedy the unfair labor practice committed against Martinez. P & M was likewise represented by legal counsel at the ALJ hearing, and it sought to establish among other things that Martinez did not mitigate his damages by diligently pursuing dairy work. On December 15, 2017, the ALJ issued its written decision. The ALJ found that Martinez adequately mitigated his damages by seeking comparable employment opportunities during the backpay period. Further, the ALJ found that the backpay calculations advocated by the General Counsel were reasonable under all the circumstances. Accordingly, the ALJ recommended that P & M be ordered to comply with the terms of the backpay specification as amended. The Board's Decision and Order in 44 ALRB No. 4
The General Counsel of the Board, referred to as the General Counsel, has authority to investigate and prosecute unfair labor practice charges. (Lab. Code, § 1149.)
P & M filed exceptions to the ALJ's decision, and the matter proceeded to the Board for review. After considering the entire record, the Board issued its decision in 44 ALRB No. 4, affirming the ALJ's findings of fact and legal conclusions, in part, with a minor modification decreasing Martinez's net backpay award by $1,500 due to interim earnings not included in the backpay specification. Accordingly, the Board ordered in 44 ALRB No. 4 that P & M shall pay Martinez backpay in the amount of $20,707, plus interest and excess tax liability as calculated under applicable precedent.
P & M filed a petition requesting our review of the Board's decision in 44 ALRB No. 4, pursuant to Labor Code section 1160.8. P & M's petition challenged the validity of the Board's backpay decision on several grounds. We notified the parties that the matter would be reviewed by this court.
I. Standard of Review
When the Board finds an unfair labor practice and imposes a remedy such as backpay, judicial review of the Board's decision is available by filing a petition for review under Labor Code section 1160.8. (Lab. Code, § 1160.8.) "The grounds for judicial review are limited to (1) whether substantial evidence supports the Board's decision, (2) whether an error of law was made, and (3) whether the decision was procedurally sound. [Citation.]" (Arnaudo Brothers, L.P. v. Agricultural Labor Relations Bd. (2018) 22 Cal.App.5th 1213, 1225 (Arnaudo Brothers).) If such material errors are found, the court may "make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part, the order of the board." (§ 1160.8.)
Unless otherwise indicated, all further statutory references are to the Labor Code.
The Board's findings on issues of fact will be deemed conclusive if they are supported by substantial evidence in the record as a whole. (§ 1160.8.) Where such findings of fact are challenged for insufficiency of the evidence, our power as a reviewing court " 'begins and ends with a determination as to whether there is ... substantial evidence to support them' " and in that connection " 'we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.' " (Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 21.) Consequently, where substantial evidence supports the Board's findings of fact, "we are not concerned that contrary findings may seem to us equally reasonable, or even more so." (Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 756-757.)
Questions of law are subject to independent review by this court and a Board decision that rests on an erroneous legal foundation will be set aside. (Arnaudo Brothers, supra, 22 Cal.App.5th at p. 1226; Artesia Dairy v. Agricultural Labor Relations Bd. (2008) 168 Cal.App.4th 598, 605.)
On questions of statutory construction of the ALRA, deference is given to the Board's construction because it is the administrative agency entrusted with enforcement of that statute. Therefore, courts will generally follow the Board's interpretation of the ALRA unless it is clearly unreasonable or erroneous. (Arnaudo Brothers, supra, 22 Cal.App.5th at p. 1226.) "[A]n administrative agency is entitled to deference when interpreting policy in its field of expertise." (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 29.) Nonetheless, it remains a fundamental responsibility of the courts to construe a statute to ascertain the intent of the Legislature and effectuate the purpose of the law. (Ibid.) Therefore, if a statutory interpretation adopted by the Board has effectively altered or amended the statute or enlarged or impaired its scope, courts will strike down the faulty interpretation. (Ibid.)
Furthermore, reviewing courts must show substantial deference to the Board's exercise of its remedial powers entrusted to it by the Legislature. As our Supreme Court has recently explained: "Where the Board relies on its 'specialized knowledge' and 'expertise,' its decision 'is vested with a presumption of validity.' [Citation.] That presumption has even more force when courts review the Board's exercise of its remedial powers, which 'are necessarily broad.' [Citation.]" (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161, 1168 (Tri-Fanucchi).) "In light of the Legislature's clear intent to confer broad remedial powers on the Board, the Board's orders imposing remedies are only ' "subject to limited judicial review." ' [Citation.]" (Ibid.) Accordingly, the Board's remedial order should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the ALRA. (Tri-Fanucchi, supra, 3 Cal.5th at pp. 1168-1169, 1173.)
P & M, as the petitioner seeking judicial review of the Board's decision, bears the burden of establishing material error. (Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 966, fn. 1.)
II. Overview of Law Concerning Backpay
"An award of backpay is statutorily authorized and is a common remedy to redress the effects of an unlawful discharge. [Citations.] Such an award will be upheld ' "unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the [ALRA]." ' " (Superior Farming Co. v. Agricultural Labor Relations Bd. (1984) 151 Cal.App.3d 100, 123.) In support of the award, the record should permit an inference that the dismissed employee had a reasonable expectation that, but for the unlawful dismissal, he would have continued to have employment at the company. Additionally, the Board must consider whether the employee took reasonable steps to mitigate his or her damages. (Ibid.)
The purpose of backpay is to make the employee whole for his or her losses suffered as a result of the unfair labor practice. (Pleasant Valley Vegetable Co-Op (1990) 16 ALRB No. 12, pp. 4-5 [referring to National Labor Relations Act precedents]; Arnaudo Brothers (1981) 7 ALRB No. 25, p. 2.) The finding of an unlawful discharge, as occurred here, is presumptive proof that the discharged worker is entitled to some amount of backpay. (Abatti Farms, Inc. (1983) 9 ALRB No. 59, p. 2; NLRB v. Madison Courier, Inc. (D.C. Cir. 1972) 472 F.2d 1307, 1316.) In a compliance proceeding to determine the amount of backpay, the General Counsel has the burden of establishing gross backpay. Once that is done, the burden then shifts to the employer to prove any mitigation of its liability, including interim earnings that offset gross backpay, and/or the employee's failure to exercise reasonable diligence to seek interim employment. (Mario Saikhon, Inc. (1991) 17 ALRB No. 13 [ALJ's Supp. Dec. at p. 3]; Abatti Farms, Inc., supra, 9 ALRB No. 59, p. 2; O.P. Murphy Produce Co., Inc. (1982) 8 ALRB No. 54, pp. 3-4; NLRB v. Brown & Root, Inc. (8th Cir. 1963) 311 F.2d 447, 454.) The employer bears the burden of proving that the discharged worker failed to mitigate his or her losses by not making a reasonable effort to seek interim employment. (Mario Saikhon, Inc. (1984) 10 ALRB No. 36, p. 2; S&F Growers (1979) 5 ALRB No. 50, p. 2.)
It is appropriate to rely on precedent construing the National Labor Relations Act (see 29 U.S.C. § 141 et seq., the NLRA) because the ALRA was closely patterned after the federal statute; and moreover, section 1148 states the Board shall "follow applicable precedents" of the NLRA. (§ 1148; see J.R. Norton Co. v. Agricultural Labor Relations Bd., supra, 26 Cal.3d at p. 8; Butte View Farms v. Agricultural Labor Relations Bd., supra, 95 Cal.App.3d 961, 967.) Under certain circumstances, the Board may diverge from federal precedents if there are particular problems or issues within the context of agricultural labor relations that would justify such different treatment. (Triple E Produce Corp. v. Agricultural Labor Relations Bd. (1983) 35 Cal.3d 42, 48.) In the law of labor relations, the term "precedent" includes both judicial and administrative decisions. (Arnaudo Brothers, supra, 22 Cal.App.5th at p. 1226.)
The backpay period, where the Board has ordered the employer to reinstate the discharged worker, continues from the time of the unlawful discharge until the employer makes an unconditional offer of reinstatement. (Abatti Farms, Inc., supra, 9 ALRB No. 59, pp. 15-16; Canova v. NLRB (9th Cir. 1983) 708 F.2d 1498, 1505.)
Methods used by the Board in calculating backpay simply need to be reasonable and not arbitrary. (Performance Friction Corp. (2001) 335 NLRB 1117, 1117-1118.) " 'A back pay award is only an approximation, necessitated by the employer's wrongful conduct. In any case, there may be several equally valid methods of computation, each yielding a somewhat different result.... The fact that the Board necessarily chose to proceed by one method rather than another hardly makes out a case of abuse of discretion.' [Citations.]" (Butte View Farms v. Agricultural Labor Relations Bd., supra, 95 Cal.App.3d 961, 967-968.) Any formula which approximates what the worker would have earned had he or she not been wrongfully discharged by the employer is acceptable if the formula is not unreasonable or arbitrary in the circumstances. (Performance Friction Corp., supra, 335 NLRB 1117, 1118.)
III. Substantial Evidence Supported the Board's Finding that Martinez Reasonably Mitigated Damages by Seeking Interim Employment
P & M contends that the backpay award, or the amount thereof, was in error because the record purportedly demonstrated as a matter of law that Martinez did not mitigate his damages by making reasonable efforts to obtain comparable interim employment. We disagree. As explained below, substantial evidence adequately supported the Board's findings concerning mitigation of damages.
To elaborate further on the mitigation issue, it is well established that a discriminatorily discharged employee is expected to mitigate his or her losses by actively seeking interim employment. (S&F Growers, supra, 5 ALRB No. 50, p. 2.) "To be entitled to backpay, a discriminatee must make reasonable efforts to secure interim employment." (Midwestern Personnel Services (2006) 346 NLRB 624, 625.) "The discharged employee is required only to make reasonable efforts to obtain substantially equivalent employment. [Citation.] ... A discriminatee need not limit his search to identical work. [Citation.]" (S&F Growers, supra, 5 ALRB No. 50, pp. 2-3.) Backpay may be reduced where it is shown that there were substantially equivalent jobs within the relevant geographic area and the discharged employee's job search effort was unreasonable. (St. George Warehouse (2007) 351 NLRB 961, 963-964.)
The standard to which an employee's efforts are held is one of reasonable diligence, not the highest diligence, and he or she need not exhaust all possible job leads. (Acme Bus Corp. (1998) 326 NLRB 1447, 1448.) The Board considers whether the record as a whole establishes the employee sought other employment with reasonable diligence. (Ibid.; Midwestern Personnel Services, supra, 346 NLRB 624, 625; Lorge School (2010) 355 NLRB 558, 560 [reasonable effort "measured over the backpay period as a whole, not isolated portions thereof"].) The employee is not required to follow a particular strategy or methodology in looking for work, such as reading and responding to newspaper "help wanted" advertisements. (Acme Bus Corp., supra, at pp. 1448-1449; see Coronet Foods, Inc. (1997) 322 NLRB 837, 842.) The employee may simply follow his or her regular methods of obtaining work, if that was reasonable. (See Tualatin Electric (2000) 331 NLRB 36, 36-37.)
That is not to say that if it is shown the worker failed to make a reasonable effort to mitigate during a discrete portion of the backpay period, the Board may not toll backpay for that portion of the backpay period. (See St. George Warehouse, supra, 351 NLRB at p. 963.) Nonetheless, "[w]here an employer contends that a discriminatee did not make the requisite effort to mitigate his damages, the willful idleness issue is determined on the basis of the record as a whole." (Ibid.)
"What constitutes a reasonable search depends upon the facts of each case, as it would be rare that such pertinent factors as occupational skill, relevant labor market, geographical setting, and the employee's personal situation would all lend themselves to direct comparison." (S&F Growers, supra, 5 ALRB No. 50, p. 3.) In deciding whether a discharged worker made reasonable efforts to mitigate damages, the totality of circumstances must be taken into consideration. (NLRB v. Madison Courier, Inc., supra, 472 F.2d 1307, 1317.) Finally, while the worker is expected to put forth an honest, good-faith effort to find interim work, there is no requirement that the search be successful. (Bauer Group (2002) 337 NLRB 395, 398-399.) Doubts, uncertainties, or ambiguities are resolved against the wrongdoing employer. (Midwestern Personnel Services, supra, 346 NLRB at p. 625.) A. Reasonably Diligent Efforts Were Made by Martinez
Here, contrary to P & M's assertion, the record adequately supports the Board's conclusion that Martinez made reasonable efforts to obtain interim employment and continued to pursue jobs in the dairy industry. Martinez testified that in the week after he was terminated from his employment at P & M in 2013, he applied at three different dairies in the area. After that, because he needed work, he accepted jobs doing landscaping or agricultural labor. However, it is evident from the entire record that he did not give up on seeking dairy jobs. He was able to initially find part time dairy work, filling in when other workers were absent at John Souza Dairy in May or June of 2013. During the entire year of 2014 and into the first quarter of 2015, Martinez worked at Little H Dairy as a milker. Beginning in the first quarter of 2015 and into the second quarter of 2015, he worked at James Jongsma Dairy as a milker. Due to an illness that lasted more than one week, he lost his position at James Jongsma Dairy. In the first quarter of 2016, Martinez worked at both Del Arco Dairy and Steven Brothers, Inc. as a milker.
Martinez testified about the various means he used to apply for or to seek work at dairies, although it did not typically involve filling out formal written applications. His methods included communicating with numerous friends who worked in dairies in the area regarding work opportunities, writing his name on a chalkboard at a dairy, and leaving his phone number with dairy supervisors. As the ALJ accurately summarized: "Throughout the interim backpay period, Martinez visited dairies and spoke with supervisors about employment. He also wrote his contact information on chalkboards at dairies and left his phone number with supervisors. Sometimes he was called to work at those dairies. Martinez also asked his friends who were employed at dairies for sources of work and in fact obtained work in this manner." When these methods produced potential job leads, Martinez would diligently follow up by contacting the foremen by phone. We agree with the Board that such efforts and methods appeared to be reasonable.
In endeavoring to show otherwise, P & M argues that Martinez's attempts to find interim employment could not have been reasonably diligent because the other four dairy workers who were unlawfully fired by P & M were more successful in finding interim employment, and thus their backpay recoveries were much lower. However, P & M's argument ignores several important facts. As the ALJ correctly observed: "Only one of the ... co-discriminatees, Andrade, worked steadily in the dairy industry. Lopez had limited success and left the United States a year after his discharge. Corona, for the most part, did not work in the dairy industry." Further, the fourth co-discriminatee, Macias, had only a two-day backpay period before returning to work at P & M. In light of these differences, the Board properly deemed such evidence to have little weight and correctly found that it was insufficient to establish Martinez failed to exercise reasonable diligence. As the Board explained, success is not the test of reasonable diligence: "[A]lthough Martinez was not as successful at finding work as some of his co-discriminatees—and therefore was unable to mitigate his damages as effectively—this fact does not mean that Martinez did not make reasonable attempts to mitigate his damages. A good faith effort to find work is determined by the sincerity and reasonableness of the efforts made by an individual in his or her circumstances ...." The Board found that Martinez's efforts to seek suitable interim employment were both sincere and reasonable. As explained hereinabove, the record supported that finding.
The other four dairy workers discharged by P & M were Jorge Lopez, Jose Manuel Ramirez Corona, Juan Jose Andrade, and Alejandro Lopez Macias. The amount of backpay owed to these other four dairy workers combined was $4,969.48, with the most received by any one of the four (i.e., excluding Martinez) as backpay being $2,563.
In summary, there is substantial evidence in the record that Martinez did not stop pursuing work in the dairy industry. Not only did he continue to look for dairy jobs, he was relatively successful at finding such jobs. He also found other types of work when necessary, which also helped mitigate damages. On balance, we hold the record as a whole is sufficient to support the Board's conclusion that Martinez exercised reasonable diligence to mitigate his damages. B. Failure to Mitigate Not Established by Martinez's Decision to Avoid Night Jobs
In an attempt to demonstrate the contrary of what we have held above, P & M argues that because Martinez made a decision at some point during the backpay period to no longer pursue nighttime positions, he was at that point willfully refusing to accept comparable dairy jobs, since it is not uncommon for some dairies to require their workers to periodically rotate between day shifts and night shifts. We are not persuaded. As explained below, we hold that P & M's argument falls short of demonstrating error because it does not establish the Board's decision that Martinez reasonably mitigated his damages lacked the support of substantial evidence in the record.
Martinez admitted that, while working at P & M, he was aware he would eventually be transferred to the night shift schedule at P & M, although he was discharged before that happened. However, at that time in his career there was no child custody issue for Martinez, which was the reason for his eventual decision to avoid nighttime jobs. Subsequent to his employment at P & M, Martinez and his spouse—the mother of their three children—separated and no longer lived together, and the Tulare County Superior Court entered an order setting up a shared child custody arrangement. After the custody order was in place, it appears that Martinez came to realize that working at night negatively impacted his ability to have time with his children under the custody arrangements. Based on such child custody and parental concerns, Martinez said he reached a decision that he no longer wanted to accept jobs requiring him to work at night.
Martinez's testimony regarding when that decision was made and implemented by him was conflicting, and he initially said it may have been in late 2013 or 2014, but later recalled it was sometime in 2016. The ALJ found it may have been as late as 2017. Martinez clearly emphasized the nature of his decision: It was not that he did not want to work in the dairy industry, but only that he did not want to work anywhere at night because of his children. In fact, he indicated that he did continue to work for dairies in 2015 and in 2016, including sometimes at night. Although Martinez's memory was sometimes sketchy as to certain details, one of the last dairies he worked at during the backpay period may have been Del Arco Dairy. It appears Martinez may have discontinued his work at that dairy in 2016 because of the negative impact of the nighttime work hours there on his custody time with his children. In the remaining months of the backpay period in 2016, he focused on available daytime positions such as in the agricultural fields, but in 2017 he returned to a dairy job.
Based on the entire record before us, it does not appear that Martinez removed himself from working in the dairy industry. Rather, the record reflects that because of his child custody responsibilities, he eventually came to a decision to reject jobs that required working at night, but he did not stop looking for work in the dairy industry as such. In fact, as we have noted the record reflects he worked at dairies as late as the first and second quarters of 2016; and he later resumed dairy work in 2017. Thus, there was evidence from which a reasonable inference could be drawn that he continued to pursue such dairy work during the whole course of the backpay period. Moreover, P & M has not provided legal authority or compelling factual support for the proposition that Martinez's decision to focus on daytime work based on child custody issues somehow equated to willfully removing himself from jobs in the dairy industry. And as we have repeatedly observed herein, substantial evidence supported the Board's conclusion that Martinez did not fail to mitigate his damages. Given the evidence of Martinez's unique custody circumstances and his continued search for daytime work in the dairy industry, we discern no error in the Board's conclusion.
On balance, we conclude there was substantial evidence to support the Board's determination that Martinez's eventual decision to avoid nighttime employment did not result in a failure on his part to mitigate his damages. C. Failure to Mitigate Not Shown by Acceptance of Jobs Outside Dairy Industry
P & M also claims that Martinez did not act with reasonable diligence in seeking interim employment because he accepted some lower paying jobs outside the dairy industry, such as landscaping or agricultural field work. In framing the issue before the Board, P & M primarily argued—as it does here—that Martinez willfully incurred losses to his income because, after getting fired by P & M, he initially spent only one week applying for jobs in the dairy industry before accepting work as a landscaper and agricultural field worker. The Board rejected that argument. The Board reasoned that Martinez's work as a landscaper and agricultural laborer did not establish that he failed to mitigate his damages during the backpay period because, so long as his overall efforts to find suitable interim employment were reasonable (which they were), he was not required to remain in the exact labor market. Based on that principle and a consideration of the circumstances involved, the Board affirmed the ALJ's findings that Martinez made reasonable efforts to mitigate his damages.
Preliminarily, it is helpful to consider the ALJ's discussion of this issue, which was part of the findings of fact and legal conclusions adopted by the Board:
"[P & M] further argues that Martinez' duty to mitigate essentially required that he remain in the dairy labor market. However, Martinez testified that after initially unsuccessfully looking for milker work, he took other work but continued to look for dairy work throughout the interim backpay period. This did not constitute a willful loss of earnings. More importantly, though, [P & M's] argument overstates the requirements of Board law. A discriminatee is not required, as [P & M] contends, to remain in the exact labor market or continue to
seek work in the same industry. Substantially equivalent employment is that which is suitable to the discriminatee's background and experience. (S&F Growers[, supra,] 5 ALRB No. 50 at pp. 2-3, citing NLRB v. Madison Courier, Inc. (D.C. Cir. 1974) 505 F.2d 391.) A discriminatee need not limit his search to identical work. (S&F Growers, supra, citing [J.H.] Rutter-Rex [Manufacturing Company] (1971) 194 NLRB 19 (cited by Respondent).) Here, Martinez took what work he could find as quickly as he could find it. He managed to be employed each calendar quarter of the backpay period. The fact that he was not fully or solely employed as a milker in the dairy industry is not fatal to his mitigation efforts."
As we proceed to explain, P & M has failed to demonstrate that the Board's decision to affirm the ALJ's findings was erroneous. Although it is true that Martinez accepted work in other job markets such as landscaping and agricultural labor not long after his termination, the Board nevertheless concluded, based on the entire record, that Martinez made reasonable efforts to find substantially equivalent employment in the dairy industry. Implicitly, the Board found that Martinez did not act in unreasonable haste and did not willfully incur losses by accepting the landscaping and field work when he did, and nothing has been pointed out in the record by P & M that would require us to second-guess that finding. Furthermore, as stated by the NLRB in Firestone Synthetic Fibers (1973) 207 NLRB 810, 815: "[A] discriminatee who seeks and accepts interim employment in good faith should not be penalized for his anxiety to comply with the dictates of the [NLRB] and the courts, or because he succumbs to compelling financial pressures, or even if he exercises what to the comfortably employed or affluent may seem ... hasty judgment."
To reiterate, the Board relied on evidence in the record that Martinez continued to seek dairy jobs and made reasonable efforts to find such jobs, even though he was also willing to accept other types of available jobs to mitigate his damages in good faith. As the Board correctly observed, Martinez did not refuse to apply for dairy jobs, but he "continued to seek and find work as a milker." After taking the brief landscaping job not long after he was fired in 2013, Martinez found temporary work with John Souza Dairy filling in for employees who were on leave. He was also able to get some hours of work at another dairy called Ribiero Dairy. Apparently needing more hours, he accepted work in seasonal agricultural labor. However, the record is clear that Martinez continued seeking dairy jobs as a milker; and as we have confirmed herein, his efforts to find such interim employment were not only reasonable but fairly successful. As noted, during the entirety of 2014 and into the first quarter of 2015, Martinez worked at Little H Dairy as a milker. Beginning in the first quarter of 2015 and into the second quarter of 2015, he worked at James Jongsma Dairy as a milker. For a portion of 2016, Martinez worked at both Del Arco Dairy and Steven Brothers, Inc. as a milker.
Considered as a whole, Martinez's pattern and practice demonstrated a desire to work and earn suitable income—including reasonable efforts to find work in the dairy industry. His overall efforts ultimately had the effect of substantially lessening P & M's liability during the backpay period. P & M has failed to demonstrate that Martinez, by merely accepting the landscaping and agricultural work on certain occasions, willfully failed to mitigate damages. Moreover, P & M has failed to show there was a lack of substantial evidence to support the Board's position on this matter.
IV. The Backpay Award was Reasonably Calculated and Supported by the Record
P & M makes several attacks on the amount of backpay adopted by the Board relating to Martinez. As noted previously herein, in compliance proceedings the General Counsel has the burden of establishing gross backpay. Once that is done, the burden then shifts to the employer to prove any facts that negate or mitigate its liability, including interim earnings that offset gross backpay, the employee's failure to exercise reasonable diligence to seek interim employment, and/or impropriety of the General Counsel's backpay formula. (Abatti Farms, Inc., supra, 9 ALRB No. 59, p. 2; O.P. Murphy Produce Co., Inc., supra, 8 ALRB No. 54, p. 3; St. George Warehouse, supra, 351 NLRB 961, 963; NLRB v. Brown & Root, Inc, supra, 311 F.2d 447, 454.) Methods used by the Board in calculating backpay simply need to be reasonable and not arbitrary. (Performance Friction Corp., supra, 335 NLRB 1117, 1117-1118; see Butte View Farms v. Agricultural Labor Relations Bd., supra, 95 Cal.App.3d 961, 967-968.) Any formula which approximates what the worker would have earned had he or she not been discharged by the employer is acceptable if the formula is not unreasonable or arbitrary in the circumstances. (Performance Friction Corp., supra, 335 NLRB 1117.)
Here, the backpay specification relied on by the General Counsel in the compliance proceedings before the ALJ was prepared by Field Examiner Veronica Cervantes, an employee of the Board. Cervantes's training included preparation of backpay specifications. Cervantes testified that the number of quarters involved in the backpay specification was based on the backpay period itself, which began on or about April 17, 2013 and ended on October 21, 2016. In estimating the amount of wages Martinez would have earned had he continued working at P & M, she used quarterly payroll records of P & M regarding a comparable dairy worker during the relevant time frame. The backpay specification prepared by Cervantes also provided estimates of Martinez's interim earnings on a quarterly basis during the backpay period, which she compiled from Martinez's employment data on file with the Employment Development Department (EDD). (See Nish Noroian Farms v. Agricultural Labor Relations Bd. (1984) 35 Cal.3d 726, 743 [interim earnings are deducted from the backpay otherwise due].) After Cervantes received updated information from EDD as to certain quarters, an amended backpay specification was prepared.
The ALJ found that the backpay specification, as amended, was a reasonable estimation of backpay owed to Martinez. The Board modified the findings of the ALJ by increasing Martinez's interim earnings for the second quarter of 2013 by $1,500, but otherwise affirmed the ALJ decision. As ordered by the Board, P & M was required to pay Martinez backpay in the amount of $20,707, plus interest and a sum for excess tax liability computed under applicable precedent. Absent a showing to the contrary, which showing was not adequately made in this case, it appears to this court the backpay was reasonably calculated. A. No Error Shown in Backpay Based on Alleged Sporadic Work History
In challenging the backpay amount found by the Board, P & M argues that gross backpay should have been reduced to reflect the somewhat sporadic nature of Martinez's employment history, including his employment history after he was fired. According to P & M, the "longest that Mr. Martinez ever worked for a single employer was one year[,]" and hence it was allegedly unreasonable to have a backpay calculation that assumed his employment at P & M would have lasted over three years. We disagree. While Martinez may have had a number of different jobs during the backpay period, he was working and earning interim wages during each and every quarter of the backpay period. That reasonably indicated he was a steady worker. Further, Martinez's lack of success in securing longer term employment than he did during the backpay period was not the critical issue; but rather, the relevant issue was whether he exercised reasonable diligence to find suitable interim employment. As we have explained, Martinez did exercise such reasonable diligence. In any event, P & M has failed to demonstrate by specific reference to evidence in the record and citation to pertinent legal authority, that the Board erred in its underlying assumption that Martinez would have continued in his employment at P & M during the backpay period had he not been unlawfully discharged.
Finally, applicable precedent provides that where the Board has ordered reinstatement, as was the case here, the backpay period ends when the employer who committed the wrongdoing makes an unconditional offer of reinstatement to the aggrieved employee. (See Abatti Farms, Inc., supra, 9 ALRB No. 59, pp. 15-16; see also Canova v. NLRB, supra, 708 F.2d 1498, 1505.) Therefore, the length of the backpay period in the present case was largely based on P & M's failure to offer reinstatement sooner. For all of the foregoing reasons, we conclude that P & M has failed to demonstrate any backpay error resulted from the assertedly sporadic nature of Martinez's employment or the length of the backpay period. B. No Error Shown in Backpay Based on Alleged Failure to Account for Cash Payments
P & M additionally argues that the backpay award is in error because it does not account for all cash payments received by Martinez for work during the backpay period. P & M's unsupported assertion is without merit. As the Board correctly points out in its respondent's brief herein, the ALJ's ruling provided a specific explanation establishing that the cash payments from John Souza Dairy were accounted for; and the Board, in its decision, expressly included the cash payments of $1,500 that Martinez received for the landscaping work in 2013. Thus, the cash payments appear to be accounted for, and P & M fails to set forth a factual basis in the record establishing any other allegedly omitted payment. Accordingly, P & M's allegation of error in the backpay computation, based on an asserted failure to account for cash payments, is without merit. C. No Error Shown in Backpay Based on Period of Illness
In challenging the amount of backpay, P & M further argues the Board should have excluded from the backpay assessment a brief period of time that Martinez was unable to go to work due to an illness. Specifically, Martinez testified that while he was employed by James Jongsma Dairy, he was "out sick" for "a little over a week." P & M contends that no backpay should have accrued during that time. The merit of P & M's assertion would appear to depend on an additional factor concerning which the record is entirely silent—namely, whether Martinez would have received paid sick leave during the time of his illness had the wrongful discharge never occurred. If he would not have received such paid sick leave, then the period of time he was absent from work due to illness should be excluded from gross backpay calculations. (See Performance Friction Corp., supra, 335 NLRB 1117, 1118 [since the employer "does not provide its employees with paid sick leave, ... gross backpay should be adjusted" to reflect employee absences due to illness].) Conversely, if Martinez would have received paid leave from P & M during his absence due to illness had the wrongful discharge never occurred, gross backpay need not be adjusted. (See also J.H. Rutter-Rex Manufacturing Company, supra, 194 NLRB 19, 28.)
P & M cites Abatti Farms, Inc., supra, 9 ALRB No. 59, pp. 5-6, for the proposition that absences due to illness must be excluded from backpay. However, Abatti Farms is distinguishable because it involved issues of whether certain disabilities were work related or not, and, in any event, the case did not discuss the availability or impact of paid sick leave.
In the present case, there is nothing in the record to indicate whether Martinez would have received sick leave pay at the time of his illness had P & M not unlawfully terminated his employment. No testimony or other evidence was introduced by either party on that subject. The lack of evidence created uncertainty or ambiguity regarding the question of whether any adjustment to the backpay computation was required. The Board applied the rule that doubts and/or uncertainties in the calculation of backpay will be resolved against the wrongdoing employer. (Oasis Ranch Management, Inc. (1994) 20 ALRB No. 19, pp. 4-5; Lorge School, supra, 355 NLRB 558, 560; Midwestern Personnel Services, supra, 346 NLRB 624, 625.) Additionally, the Board held that "[t]he silence in the record regarding this fact compels the Board to resolve the ambiguity against [P & M] based on its failure to meet its burden of providing facts that would mitigate its liability, including its failure to establish Martinez would have not been paid under its sick leave policy.... Accordingly, we uphold the ALJ's finding that the amended specification should include the week of work missed by Martinez due to illness."
It appears to us that the Board applied well-established principles and precedent to resolve the uncertainty or ambiguity created by the silence of the record. Accordingly, we conclude the Board did not err in deciding this issue. D. No Error in Backpay Shown by Alleged Refusal to Cooperate
P & M notes that a new law requiring paid sick leave (see § 246) did not go into effect until July 2015, but the illness to Martinez was apparently in June 2015. Be that as it may, there is no reason that P & M might not have initiated an employee sick leave policy ahead of the statutory compliance date. It was not a foregone conclusion that P & M did not have paid sick leave in place at the relevant time period.
P & M claims Martinez should be denied all backpay because he allegedly engaged in an intentional refusal to cooperate in the General Counsel's investigation. In support of this claim, P & M cites Abatti Farms, Inc. (1988) 14 ALRB No. 8, pp. 4-5 and Ad Art Inc. (1986) 280 NLRB No. 114 (Ad Art Inc.). We disagree with P & M's conclusion because the circumstances in Abatti Farms, Inc. and Ad Art Inc. were clearly distinguishable.
In Abatti Farms, Inc., supra, 14 ALRB No. 8, the Board affirmed the decision by the ALJ to deny all backpay to certain discriminatees who had willfully concealed and falsified interim earnings, misrepresented other material facts, used false names and social security numbers as part of their deception, and sought the help of at least one person to provide false testimony. (Abatti Farms, Inc., supra, 14 ALRB No. 8, pp. 25-41 [findings by ALJ].) The ALJ in that case found that "all parties have concurred that the concealment was intentional, rather than mere failure of recollection or inadvertence." (Id. at p. 40, italics added.) The ALJ further found that the discriminatees' concealment was perpetrated on the Board's agents who conducted the pre-specification investigation, on legal counsel involved in the compliance proceeding, and at the hearing itself, and "the cumulative effect of such conduct renders it impossible to ascertain interim earnings for any of the [discriminatees involved]." (Id. at pp. 40-41.) In affirming the ALJ's decision denying all backpay to said perpetrators, the Board in Abatti Farms explained as follows: "In Ad Art Incorporated[, supra,] 280 NLRB No. 114, the national board adopted its ALJ's determination ... when: the discriminatee withheld relevant evidence, testified falsely, destroyed records to cover up misstatements, and attempted to prevent a witness from testifying truthfully. Even though the concealed earnings were ultimately ascertainable through bank records and the testimony of the discriminatee's partner, the national board struck all earnings on the grounds that it was impossible to 'credit' the discriminatee. In our view, the deception of the discriminatees in this case is of the same order as that practiced by the discriminatee in Ad Art; we affirm the conclusion of the ALJ." (Abatti Farms, Inc., supra, 14 ALRB No. 8, pp. 5-6.)
Here, we agree with the Board that the present case is readily distinguishable from Abatti Farms and Ad Art Inc. Martinez testified at length about his efforts to find work during the backpay period, and about his interim employment and earnings. His memory was at times sketchy or uncertain about details, but the General Counsel utilized EDD records to supply further supporting evidence to corroborate interim earnings. Although it is true that Martinez admitted to having certain paystubs at home, and no specific explanation was articulated by him for not furnishing them or other such documents, if any existed, to the Field Investigator, there is nothing in the record to require a finding that Martinez's failure in this respect involved willful concealment on his part as opposed to mere inadvertence or poor record keeping. Instead, the ALJ—who observed Martinez's demeanor and heard his testimony firsthand—found Martinez to be sincere, forthright and credible, despite any poor record keeping and uncertainty as to memory. Moreover, there is nothing in the record to suggest that Martinez willfully concealed interim earnings, destroyed records, fabricated testimony or attempted to influence witnesses. As the Board explained in affirming the ALJ's decision in this case, Martinez's conduct was simply not on par with what occurred in Abatti Farms or Ad Art Inc. The Board stated: "At worst, Martinez failed to keep accurate records of his pay and, at times, failed to recall the specifics of when and where he worked, and how much he was paid. The cumulative effect of Martinez's conduct does not rise to the level where it is impossible to ascertain reasonable earnings or his efforts to find comparable employment and, thus, we do not find that Martinez failed to cooperate with the General Counsel's investigation."
Employees are not disqualified from backpay because of their poor record keeping or the uncertainty of their memory. (Allegheny Graphics (1996) 320 NLRB 1141, 1145; Midwestern Personnel Services, supra, 346 NLRB 624, 627.)
In its challenge, P & M has failed to demonstrate the Board's conclusions on this issue were in error. Moreover, substantial evidence, including credibility determinations, supported the Board's findings. P & M's attempt to bring this case within the holdings of Abatti Farms and Ad Art Inc. plainly falls short since those cases involved materially different circumstances of egregious and willfully deceptive conduct. Accordingly, P & M's argument that no backpay should have been awarded in this case fails.
In an attempt to salvage this defensive theory, P & M invites us to reject the Board's findings that Martinez was a credible witness. We decline the invitation. The Board is the ultimate finder of fact in unfair labor practice proceedings, and as such is vested with the power to weigh witness credibility and resolve conflicts in the evidence. (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 794; Montebello Rose Co. v. Agricultural Labor Relations Bd., supra, 119 Cal.App.3d 1, 21.) Because the evaluation of witnesses' credibility is a matter particularly for the trier of fact, the Board's findings based on the credibility of witnesses will not be disturbed unless the testimony is incredible or inherently improbable. (Harry Carian Sales v. Agricultural Labor Relations Bd. (1985) 39 Cal.3d 209, 220; Vessey & Co. v. Agricultural Labor Relations Bd. (1989) 210 Cal.App.3d 629, 642; Montebello Rose Co. v. Agricultural Labor Relations Bd., supra, 119 Cal.App.3d at p. 20.) In other words, a court will not disturb the Board's credibility determination absent a demonstration that the credited testimony is "incredible on its face, or is inherently improbable." (Perry Farms, Inc. v. Agricultural Labor Relations Bd. (1978) 86 Cal.App.3d 448, 463-464.)
P & M asserts that Martinez's testimony was evasive and inconsistent and should not have been credited. On the other hand, the ALJ found Martinez to be a credible and good faith witness who, although forgetful or uncertain in a number of details, was doing his best to sincerely relate the facts. The Board affirmed the ALJ's credibility findings. We have reviewed the entire record, including all of Martinez's testimony, and have found no reason to question the Board's credibility findings. P & M has failed to meet its considerable burden of demonstrating that Martinez's testimony was inherently improbable or incredible. Consequently, the Board's credibility findings will not be disturbed by this court. E. No Error in Backpay Shown by Alleged Failure to Investigate
The General Counsel's investigation prior to issuing the backpay specification ultimately relied on EDD records and conversations with Martinez, rather than making further effort to obtain from Martinez any paystubs, wage statements or other records he may have retained and/or requiring Martinez to fill out a written questionnaire. P & M argues that the investigation was per se inadequate, and therefore backpay must be disallowed or reduced. We disagree. P & M has not shown that backpay was not reasonably ascertained by the methods actually utilized by the General Counsel; nor has P & M shown that the investigation was clearly inadequate under the circumstances or that it was deprived of a fair trial on the backpay amounts owed. P & M has also failed to present relevant legal authority in support of its theory and position on this issue. Mere conclusory or perfunctory assertions are inadequate. (See Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814-815.) Finally, although it is true the General Counsel conducted the initial investigation, the burden of proving interim earnings ultimately rested with P & M, not the General Counsel. (Certified Egg Farms (1993) 19 ALRB No. 9, p. 2, fn. 3.) For all of these reasons, we conclude that P & M's failure to investigate theory is not adequately or persuasively established.
V. The Decision to Exclude P & M's Expert Witness Not Reversible Error
P & M contends the Board erred in affirming the ALJ's decision to disallow the admission of expert testimony proffered by P & M to show the existence of dairy job opportunities in the region. According to P & M, "[t]he ALJ should have permitted the expert testimony and afforded weight to it as she saw proper, rather than excluding the testimony in its entirety." We conclude that even if there was error, it was not prejudicial and does not require reversal.
During the ALJ hearing, P & M sought to introduce the testimony of its expert, Jeff Schanbacher, Director of Operations for HR Mobil, on the general availability of dairy jobs for milkers in the Tulare County area at the time of the backpay period. P & M made an offer of proof to attempt to show the admissibility of the evidence. The nature of the proffered evidence was summarized by the ALJ: "Based on a review of his company records for dairies in the Tulare, Visalia, Hanford and Corcoran areas which are contracted with HR Mobil, in 2014 alone 296 milkers were replaced. In 2014, 568 milkers were hired. Schanbacher would also testify that Tulare County has the most cows of any dairy county in the nation. Finally, Schanbacher would testify that in his opinion there was a shortage of trained milkers during the period and he was aware of instances in which untrained individuals were hired and trained to be milkers."
The ALJ decided to exclude the expert testimony, stating that even had the evidence been admitted, it would be entitled to little or no weight. In addition to noting some concerns detracting from the value of the general statistics involved such as whether they would be a representative sample, the ALJ explained that such evidence in any event "is typically entitled to little weight because it is impossible to ascertain whether specific jobs were available at the time Martinez needed work and whether he would have been hired had he applied." That appears to be a correct summary of how such statistical evidence is typically viewed in backpay proceedings. (See, e.g., United States Can Co. (1999) 328 NLRB 334, 343; Food & Commercial Workers Local 1357 (1991) 301 NLRB 617, 621.) As the ALJ further elaborated in its decision, even if this expert evidence and other testimony provided in the ALJ hearing created an inference that milker jobs were generally available in the relevant geographic area, the evidence would have little weight or value because "there is no relationship between availability of jobs and likelihood of success of a discriminatee such as Martinez whose application may have been impacted by such factors as age, past experience, and commute. Moreover, Martinez's applications may have been impacted by having to explain his short tenure with [P & M]." According to the Board, the ALJ's holding was correct because the expert testimony could only have indicated the probability of job opportunities in general, as there was nothing in the record to suggest that the expert had any personal knowledge of Martinez's personal circumstances.
Matthew Vanderpoel testified, albeit somewhat confusingly and inconsistently, as to the demand for milkers during the backpay period.
In claiming the expert testimony should have been admitted, P & M maintains it was entitled to introduce the testimony because it was relevant to the defense of failure to mitigate damages. P & M notes that, under applicable authority, while the employer bears the ultimate burden of persuasion on the defense of failure to mitigate, if the employer is able to produce satisfactory evidence showing there were substantially equivalent jobs within the geographic area, the burden of production shifts to the General Counsel to produce competent evidence of the reasonableness of the discriminatee's job search. (St. George Warehouse, supra, 351 NLRB 961, 961-964; M.D. Miller Trucking and Topsoil, Inc. (2017) 365 NLRB No. 57, p. 5.) According to P & M, regardless of its weight or probative value, the expert evidence would have been relevant to some degree on the question of the availability of dairy jobs in the region, which is an issue in the defense of failure to mitigate damages.
We agree with P & M that it does appear the evidence was likely relevant to the defense of mitigation of damages. Accordingly, the better approach would have been for the ALJ to admit the evidence, and then afterwards to decide on its weight, probative value and credibility. However, even if there was an error with regard to this evidentiary ruling, it was not material or prejudicial, and no reversal is required. The ALJ cogently explained why this is so, as it found in the alternative as follows: "Assuming, however, that the above evidence ... proves, as required by St. George Warehouse, supra, that there were substantially equivalent jobs within the geographic area, it is found that the General Counsel has come forward with substantial evidence that Martinez took reasonable steps to seek those jobs." In other words, the ALJ found the General Counsel did convincingly show, through evidence such as Martinez's own testimony, that he (Martinez) sought interim employment with reasonable diligence. We agree with that conclusion because substantial evidence supported the ALJ's and the Board's findings that Martinez's job search efforts were reasonable under the circumstances. Therefore, on the record in this case, the mitigation of damages defense clearly would have failed here even if the ALJ had not excluded the proffered expert testimony. In short, whether or not this evidence ought to have been admitted, the failure to admit it did not make a difference to the outcome. Even assuming there was error, it was harmless.
At the same time, we observe the ALJ did actually consider the nature and substance of the evidence, at least to some extent, based on its review of the offer of proof. --------
VI. The Backpay Award Was Not Punitive
"In light of the Legislature's clear intent to confer broad remedial powers on the Board, the Board's orders imposing remedies are only ' "subject to limited judicial review." ' [Citation.]" (Tri-Fanucchi, supra, 3 Cal.5th at p. 1168.) Accordingly, the Board's remedial order should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the ALRA. (Tri-Fanucchi, supra, 3 Cal.5th at pp. 1168-1169, 1173.) While the Board's discretion in remedying unfair labor practices is quite broad, it is nonetheless recognized that such discretion is not unbounded: "When the order of the Board is so severe in comparison to the conduct involved in the unfair labor practice that it is clearly punitive in character, the order will be annulled." (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1987) 192 Cal.App.3d 874, 908.)
P & M contends that the amount of backpay awarded by the Board to Martinez is so disproportionate to three of the other co-discriminatees and to the actions of P & M that it was punitive in nature, not remedial. We disagree. As we have discussed hereinabove, substantial evidence supported the Board's finding that Martinez exercised reasonable diligence to obtain suitable interim employment. Although the other co-discriminatees were arguably more successful in finding work, success is not the standard (Bauer Group, supra, 337 NLRB 395, 398-399; Chem Fab Corp. (1985) 275 NLRB 21), and the Board is to consider individual circumstances. (See 1849 Sedgwick Realty LLC (2001) 337 NLRB 245, 254.) The Board did so here, and found reasonable diligence on Martinez's part, which the record adequately supported. Therefore, the comparison to the other co-discriminatees fails to establish the backpay award was punitive. Finally, P & M's other arguments for claiming the award was punitive merely reiterate issues we have elsewhere addressed in this opinion, and in any event fail to show the amount of backpay awarded to Martinez was patently punitive rather than remedial.
The Board's decision in 44 ALRB No. 4 is affirmed. Costs on appeal are awarded to the Board.
LEVY, Acting P.J. WE CONCUR: FRANSON, J. PEÑA, J.