William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd.

• Decision Date: 12 May 1987
• Docket Number: R,AFL-CI
• Citation: 237 Cal.Rptr. 206,191 Cal.App.3d 1195
• Court: California Court of Appeals Court of Appeals
• Parties: , 123 Lab.Cas. P 57,134 WILLIAM DAL PORTO & SONS, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, UNITED FARM WORKERS OF AMERICA,eal Party in Interest. Civ. C000206.

Page 206

237 Cal.Rptr. 206

191 Cal.App.3d 1195, 123 Lab.Cas. P 57,134

WILLIAM DAL PORTO & SONS, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

Civ. C000206.

Court of Appeal, Third District, California.

May 12, 1987.

Review Denied July 29, 1987.

Nomellini & Grilli, Dante John Nomellini and Daniel A. McDaniel, Stockton, for petitioner

Daniel G. Stone, Sacramento, and Michael E. Hersher, Placerville, for respondent.

Dianna Lyons and Daniel A. Garcia, Sacramento, for real party in interest.

SIMS, Associate Justice.

In William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd. (1984) 163 Cal.App.3d 541, 210 Cal.Rptr. 241 (Dal Porto I ) we affirmed the Agricultural Labor Relations Board's finding that Dal Porto committed unfair labor practices in violation of section 1153, subdivisions (a) and (e), of the Agricultural Labor Relations Act of 1975 (hereafter ALRA) (Lab. Code, § 1140 et seq.) ¹ by bargaining in bad faith with regard to issues of union security and by unilaterally raising wages of certain employees. However, we annulled the Board's finding that Dal Porto bargained in bad faith on the issue whether any successor of Dal Porto would be bound by a collective bargaining agreement signed by Dal Porto. (Id., at p. 563, 210 Cal.Rptr. 241.)

Declining to assume the Board would impose the same remedy for two violations of the ALRA that it did for three, we annulled the Board's order for "make-whole" relief and remanded to the Board for formulation of a new remedial order. (Ibid.)

Following our remand, the Board reevaluated the evidence in the proceeding and concluded its order of make-whole relief remained warranted under the narrower finding of bad faith bargaining affirmed by this court. (William Dal Porto & Sons, Inc. (1985) 11 ALRB No. 13, at p. 2.) The Board's remedial order requires in pertinent part that Dal Porto "(d) Make whole its present and former agricultural employees for all losses of pay and other economic losses they have suffered as a result of Respondent's failure and refusal to bargain in good faith with the UFW, such amounts to be computed in accordance with established Board precedents...." (Id., at pp. 5-6.) So far as the record before us discloses, the parties have not consummated a collective bargaining agreement.

Dal Porto now seeks review of the Board's remedial order. (§ 1160.8.) Dal Porto contends: (1) the make-whole remedy may be not be imposed in the absence of a finding by the Board that the parties would have entered into a collective bargaining agreement but for the employer's bad faith bargaining; (2) the Board's findings establish that the failure to reach agreement on a contract was not due to Dal Porto's improper conduct; (3) the Board's remedial order impermissibly shifts the "burden of proof" to the employer; (4) section 1160.3 is unconstitutional because it denies employers the equal protection of the laws; (5) as applied in this case, the make-whole remedy is excessive and punitive; (6) the Board's remedial order compels Dal Porto to make bargaining concessions; and (7) the Board's failure to afford Dal Porto a hearing following remand from this court violated due process and requires reversal of the Board's order.

We conclude only Dal Porto's first contention has merit. We shall remand the case once again to the Board to allow it to make a finding whether the parties would

have consummated a collective bargaining agreement providing for higher pay for employees in the absence of Dal Porto's unlawful refusal to bargain. We shall direct the Board to apply a rebuttable presumption, affecting the burden of proof, that such an agreement would have been consummated had the parties bargained exclusively in good faith. We shall therefore give Dal Porto the chance to show the parties had bargained in good faith to impasse, so that its refusal to bargain on certain issues was not a cause of the failure of the parties to reach agreement. Finally, we shall instruct the Board to exercise its discretion whether to take additional evidence on the issue.

DISCUSSION

I

In order to impose make-whole relief, the Board should have found that, but for Dal Porto's refusal to bargain, the parties would have entered into a collective bargaining agreement providing for higher pay. However, there is a rebuttable presumption, affecting the burden of proof, that the parties would have consummated such an agreement had they bargained exclusively in good faith.

Dal Porto's first three contentions are best taken together. We shall recount Dal Porto's argument and then discuss it.

Dal Porto points out that, "The Board derives its authority to impose the make-whole remedy from Labor Code section 1160.3. That section provides that when the Board finds an employer guilty of an unfair labor practice for refusal to bargain in good faith, it may enter an order 'requiring such person to cease and desist from such unfair labor practice, to take affirmative action, including reinstatement of employees with or without backpay, and making employees whole, when the Board deems such relief appropriate, for the loss of pay resulting from the employer's refusal to bargain, and to provide such other relief as will effectuate the policies of this part.' " (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 27, 160 Cal.Rptr. 710, 603 P.2d 1306; original emphasis; see Lindeleaf v. Agricultural Labor Relations Bd. (1986) 41 Cal.3d 861, 880-881, 226 Cal.Rptr. 119, 718 P.2d 106.)

Dal Porto says the statute provides a remedy to make an employee "whole" for "the loss of pay resulting from the employer's refusal to bargain." Dal Porto suggests there can be such a loss of pay only if the parties would have entered into a contract had the parties bargained wholly in good faith. In the absence of a contract, the employees have lost no pay as a result of the employer's refusal to bargain. Thus, Dal Porto says the make-whole remedy may be imposed only where the Board makes an express finding that, had the employer not breached the obligation to bargain in good faith, a contract would have been entered into with the union. ²

In the instant case, Dal Porto asserts the Board did not and could not make such a finding because honest differences about wages and successorship precluded consummation of an agreement. Thus, Dal Porto argues the record shows the parties had bargained in good faith to impasse.

According to Dal Porto, the controlling analysis is that applicable to dual-motive employee discharges, as set forth in Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 175 Cal.Rptr. 626, 631 P.2d 60. In Martori Brothers an employee was discharged allegedly for dual motives--disruptiveness on the job and union activity--only the former of which was a lawful reason. Our Supreme Court explained, "When it appears that an employee was dismissed because of combined valid business reasons as well as for invalid reasons, such as union or other protected activities, the question becomes whether the discharge would not have occurred 'but for' the protected activity. [Citations.]" (Id., at p. 729, 175 Cal.Rptr. 626, 631 P.2d 60.)

A. History of the NLRA make-whole remedy.

The history of the Board's make-whole remedy is helpful to an analysis of Dal Porto's argument. The National Labor Relations Act (NLRA) does not expressly authorize a make-whole remedy. (See 29 U.S.C. § 160.) Before 1970, various commentators were of the view that then-recognized remedies under the NLRA were ineffective to deter or redress employers' unlawful refusals to bargain, because the remedies failed to discourage employers from delaying good faith bargaining as long as possible, thereby diminishing union strength and postponing payment of higher wages and benefits. (See, e.g., Note, An Assessment of the Proposed "Make-Whole" Remedy in Refusal-To-Bargain Cases (1968) 67 Mich.L.Rev. 374; Note, Monetary Compensation as a Remedy for Employer Refusal to Bargain (1968) 56 Geo.L.J. 474; Comment, Employee Reimbursement for an Employer's Refusal to Bargain, The Ex-Cell-O Doctrine (1968) 46 Texas L.Rev. 758.)

In the wake of these comments, the federal make-whole remedy was fashioned by the Court of Appeals for the District of Columbia Circuit in International Union of E., R. & M.W., AFL-CIO v. N.L.R.B. [Tiidee Products ] (D.C.Cir.1970) 426 F.2d 1243, cert. den. (1970) 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256. (See generally Note, NLRB Power to Award Damages in Unfair Labor Practice Cases (1971) 84 Harv.L.Rev. 1670.) The court ordered the NLRB to consider, as a remedy, "damages based upon a determination of what the parties themselves would have agreed to if they had engaged in the kind of bargaining process required by the Act." (Tiidee Products, supra, 426 F.2d at p. 1253.) Statutory authority was located in section 10(c) of the NLRA (29 U.S.C. § 160(c)), which commanded the National Labor Relations Board "to take such affirmative action ... as will effectuate the policies of this subchapter." (Id., at p. 1248.) The court perceived that the make-whole remedy was necessary in certain cases to afford employees a remedy against unwarranted delay resulting from an employer's refusal to bargain. (Id., at pp. 1249-1250; see J.R. Norton Co., supra, 26 Cal.3d at p. 31, 160 Cal.Rptr. 710, 603 P.2d 1306.)

Subsequently, in Ex-Cell-O Corp. ((1970) 185 N.L.R.B. No. 20, 74 L.R.R.M. 1740) the NLRB refused to follow Tiidee Products, claiming the make-whole remedy exceeded its statutory authority. Once again, the District of Columbia Circuit ordered the remedy. (International Union, U.A., A. & A. Imp. Wkrs. v. N.L.R.B. [Ex-Cell-O ] (D.C.Cir.1971) 449 F.2d 1046, 1050.)

The make-whole remedy was expressly included in section 1160.3 of the ALRA to resolve the question of the Board's authority to grant such relief. (...