95 Cal.App.3d 961, 18253, Butte View Farms v. Agricultural Relations Bd.

CourtCalifornia Court of Appeals
Writing for the Court[10] Reynoso
Citation95 Cal.App.3d 961,157 Cal.Rptr. 476
Docket Number18253
Date13 August 1979
PartiesButte View Farms v. Agricultural Relations Bd.

Page 961

95 Cal.App.3d 961

157 Cal.Rptr. 476

BUTTE VIEW FARMS, Petitioner,

v.

The AGRICULTURAL LABOR RELATIONS BOARD of the State of California, Respondent,

The UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

Civ. 18253.

California Court of Appeal, Third District

Aug. 13, 1979.

Page 962

[Copyrighted Material Omitted]

Page 963

[Copyrighted Material Omitted]

Page 964

[Copyrighted Material Omitted]

Page 965

Purtell, Hoppin & Callaway and Richard P. Hoppin, Woodland, for petitioner.

Marvin J. Brenner and Gary Williams, Sacramento, for respondent.

Jerome Cohen, Sanford N. Nathan, Thomas M. Dalzell, Ellen Greenstone, E. Michael Heuman, George C. Lazar, Dianna C. Lyons, Rutkowski, Kirsten L. Zerger and Linton Joaquin, Salinas, for real party in interest.

REYNOSO, Associate Justice.

By writ of review petitioner Butte View Farms asks us to vacate and set aside a supplemental decision and order of the respondent Agricultural Labor Relations Board of the State of California. The supplemental decision and order set the amount of back pay and consequential damages due from petitioner to certain employees found to have been wrongfully discharged in an earlier Board decision. The prior decision of the Board is not before us in this proceeding.

Petitioner raises three back wage issues. The Board, according to petitioner, used an erroneous formula in determining the amount of the wages due the discharged workers who had been tomato sorters for the periods in question. In addition, petitioner challenges the length of the period for which Gurvinder Dhaliwal was awarded back pay. Finally, the back pay period for Bertha, Manuel and Raul Avila is challenged on the basis that they returned to school after they were fired. Aside from the back wage contentions, petitioner challenges the denial of its request for enforcement of a subpoena duces tecum against the Employment Development Department. We are unpersuaded by petitioner's arguments and accordingly discharge the writ.

The United Farm Workers of America, AFL-CIO, brought charges against petitioner alleging that certain employees had been wrongfully dismissed due to their union activities or beliefs. The Board decision found that petitioner had wrongfully discharged seven employees for pro-union sympathies. Petitioner was ordered to offer to those employees full reinstatement to their former positions without prejudice to their seniority or other employee rights, and to pay their lost wages with

Page 966

interest at seven percent. Review of that decision was not sought and it became final. (Lab. Code, § 1160.8.)

Subsequent to the decision of the Board the regional director of the Sacramento Regional Office of the Board issued back pay specifications and a notice of hearing. The pay specification set the length of period for payment of back pay and the amounts due each of the discharged employees. Petitioner filed an objection to the calculations. A formal hearing was held. The administrative law officer issued a decision which differed in certain respects from the back pay specifications. The parties were allowed time in which to state exceptions to the decision after it was transferred to the Board for final action. Petitioner, the general counsel, and the charging party each filed exceptions to the decision.

The Board issued a supplemental decision and order, the subject of this proceeding, which determined the period for which back pay should be paid, the proper formula to be used in calculating back pay, and the incidental damages to be recovered. In turn, petitioner filed a timely petition for a writ of review. (See Lab. Code, § 1160.8.) 1

1. The Formula for Back Pay for Tomato Sorters.

Petitioner's records for the period in question were kept on a weekly basis; accordingly, it was not possible to determine the wages paid tomato sorters on a daily basis. In determining the amount of back pay due tomato sorters the compliance officer thus made his calculations on a weekly basis. The back pay specifications erroneously stated that the wages for the tomato sorters were established as the average earnings of the top four or five workers in each payroll period. In fact, in determining the amount of back pay the officer looked at the individual weekly pay figure of the petitioner's employees and chose a representative figure.

In his decision, the administrative law officer found that the number of

Page 967

hours worked each week was based upon the amount of work available to a given crew and would vary. He further found that the use of the top earners could result in a windfall since any single employee would probably not earn top wages each week. He then determined that the appropriate formula would be the average of the earnings of the full-time employees during each weekly pay period. In determining which were the full-time sorters he eliminated those employees who did not work at least 48 hours in any given week, since full-time employees usually worked at least that many hours per week. The Board found that the administrative law officer's formula was a just and reasonable method of computing the back pay due.

Petitioner objects to the formula used to establish the back pay due, contending that it was arbitrary, and that the exclusion of those workers who worked fewer than 48 hours per week resulted in an excessive award. The proper method, according to petitioner, would have been to average all of the tomato sorters' wages for each week.

The California Agricultural Labor Relations Act is closely modeled on the National Labor Relations Act (29 U.S.C. §§ 151-168), and it is presumed that judicial decisions interpreting that act are applicable to the California Act. (Belridge Farms v. Agricultural Labor Relations Bd. (1978) 21 Cal.3d 551, 556-557, 147 Cal.Rptr. 165; Nishikawa Farms, Inc. v. Mahony (1977) 66 Cal.App.3d 781, 786-787, 136 Cal.Rptr. 233.) The United States Supreme Court has held that the National Labor Relations Board has broad discretion in fashioning remedies, subject to limited judicial review. (Fibreboard Paper Products Corporation v. National Labor Relations Board (1964) 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233, 241.) An order of the Board will not be disturbed by the courts 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 Act. (Ibid.; National L. R. B. v. Seven-Up Bottling Co. (1953) 344 U.S. 344, 346-347, 73 S.Ct. 287, 97 L.Ed. 377, 381-382.)

"in framing a remedy, the Board has wide discretion, subject to limited judicial scrutiny. We can reverse only if we find that the method chosen was so irrational as to amount to an abuse of discretion, . . . (P) 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. . . .

Page 968

The fact that the Board necessarily chose to proceed by one method rather than another hardly makes out a case of abuse of discretion." (Bagel Bakers Council of Greater N. Y. v. N. L. R. B. (2d Cir.,...

To continue reading

Request your trial
24 practice notes
  • 191 Cal.App.3d 1195, C000206, William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd.
    • United States
    • California Court of Appeals
    • May 12, 1987
    ...(Harry Carian Sales, supra, 39 Cal.3d at p. 232, 216 Cal.Rptr. 688; Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 967, 157 Cal.Rptr. Dal Porto's sole contention is that the violations here involved, a mere " 'going through the motions' " in bad fai......
  • 39 Cal.3d 209, 31890, Harry Carian Sales v. Agricultural Labor Relations Bd.
    • United States
    • United States State Supreme Court (California)
    • August 1, 1985
    ...the Board's choice of remedy only if it amounts to an abuse of discretion. (Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 967, 157 Cal.Rptr. 476.) In issuing the bargaining order in this case, the ALRB held that HCS's unfair labor practices were so outrageou......
  • 164 Cal.App.4th 1478, F050816, Smith v. Selma Community Hospital
    • United States
    • California Court of Appeals
    • July 21, 2008
    ...and prevents the issue from being raised in a subsequent judicial action”]; Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 971 [157 Cal.Rptr. 476] [failure to raise issue during administrative proceedings prevented party from raising the issue in a court proc......
  • 151 Cal.App.3d 197, Civ. 25169, Harry Carian Sales v. Agricultural Labor Relations Bd.
    • United States
    • California Court of Appeals
    • January 25, 1984
    ...its administrative remedies. Such a failure precludes review on appeal. 9 (Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 971, 157 Cal.Rptr. 476; see also Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 756, fn. 6, 195 Cal.Rptr. 651, 67......
  • Request a trial to view additional results
24 cases
  • 191 Cal.App.3d 1195, C000206, William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd.
    • United States
    • California Court of Appeals
    • May 12, 1987
    ...(Harry Carian Sales, supra, 39 Cal.3d at p. 232, 216 Cal.Rptr. 688; Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 967, 157 Cal.Rptr. Dal Porto's sole contention is that the violations here involved, a mere " 'going through the motions' " in bad fai......
  • 39 Cal.3d 209, 31890, Harry Carian Sales v. Agricultural Labor Relations Bd.
    • United States
    • United States State Supreme Court (California)
    • August 1, 1985
    ...the Board's choice of remedy only if it amounts to an abuse of discretion. (Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 967, 157 Cal.Rptr. 476.) In issuing the bargaining order in this case, the ALRB held that HCS's unfair labor practices were so outrageou......
  • 164 Cal.App.4th 1478, F050816, Smith v. Selma Community Hospital
    • United States
    • California Court of Appeals
    • July 21, 2008
    ...and prevents the issue from being raised in a subsequent judicial action”]; Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 971 [157 Cal.Rptr. 476] [failure to raise issue during administrative proceedings prevented party from raising the issue in a court proc......
  • 151 Cal.App.3d 197, Civ. 25169, Harry Carian Sales v. Agricultural Labor Relations Bd.
    • United States
    • California Court of Appeals
    • January 25, 1984
    ...its administrative remedies. Such a failure precludes review on appeal. 9 (Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 971, 157 Cal.Rptr. 476; see also Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 756, fn. 6, 195 Cal.Rptr. 651, 67......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT