Arnaudo Bros., L.P. v. Agric. Labor Relations Bd., F072420

CourtCalifornia Court of Appeals
Writing for the CourtFRANSON, J.
Citation14 Cal.App.5th 22,221 Cal.Rptr.3d 643
Parties ARNAUDO BROTHERS, L.P. et al., Petitioners, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; United Farm Workers of America, Real Party in Interest.
Decision Date07 August 2017
Docket NumberF072420

14 Cal.App.5th 22
221 Cal.Rptr.3d 643

ARNAUDO BROTHERS, L.P. et al., Petitioners,
v.
AGRICULTURAL LABOR RELATIONS BOARD, Respondent;

United Farm Workers of America, Real Party in Interest.

F072420

Court of Appeal, Fifth District, California.

Filed August 7, 2017


Charley M. Stoll, Camarillo, Rachelle O. Tejada and Anne W. Nilsen for Petitioners.

J. Antonio Barbosa, Paul M. Starkey, Sacramento, and Todd M. Ratshin for Respondent.

Martinez Aguilasocho & Lynch and Mario G. Martinez, Bakersfield, for Real Party in Interest.

OPINION

FRANSON, J.

14 Cal.App.5th 25

This writ proceeding addresses decisions by the Agricultural Labor Relations Board (Board) that an agricultural employer committed unfair labor practices by refusing to bargain with, and provide information to, the United Farm Workers of America (Union). The employer's defense was that in the early 1980's, the Union expressly disclaimed any interest in representing the bargaining unit—a disclaimer reinforced by the Union's 30 years of inactivity. The Board rejected the employer's disclaimer defense to the failure to bargain charge, because the purported disclaimer was not clear and unequivocal. The Board also awarded make whole relief based on the determination that the employer's litigation of the disclaimer issue did not further the policies and purpose of the Agricultural Labor Relations Act of 1975 ( Lab. Code, §§ 1140 - 1166.3 ).1 The employer contends the Board erred in rejecting its disclaimer defense and in concluding make whole relief was appropriate.

Our conclusions about the purported disclaimer of interest are limited to situations where disclaimer is raised as a defense to an unfair labor practices charge based on the failure to bargain. In that limited context, the Board correctly identified and applied the rules that define when a certified union has made a disclaimer of interest in representing the bargaining unit. The

14 Cal.App.5th 26

Board did not err in determining (1) the statement by the Union representative that "we're through with you" (if made) was not a clear and unequivocal disclaimer of interest and (2) subsequent conduct consistent with a disclaimer could not render the equivocal disclaimer effective. Thus, the Board did not err when it rejected the employer's disclaimer defense to the charge that employer failed to bargain with the Union.

In contrast, we conclude the Board's awarding of make whole relief was based

221 Cal.Rptr.3d 648

on an erroneous determination that the litigation of the employer's position relating to the disclaimer defense did not further the policies and purposes of the Agricultural Labor Relations Act. The Board failed to consider how the Union's 30 years of inactivity and employee turnover is related to the current employees' right to freedom of association, which includes the right to refrain from collectively bargaining and the right to a representative "of their own choosing." (§§ 1140.2, 1152.) We conclude the public interest was furthered by the litigation of the disclaimer issue and, therefore, make whole relief was not "appropriate" for purposes of section 1160.3.

We therefore reverse only the part of the Board's decisions awarding make whole relief.

FACTS

Parties

Arnaudo Bros., L.P., a California limited partnership, and Arnaudo Bros., Inc., a California corporation, are the petitioners in this writ proceeding and were the respondents named in case No. 2012-CE-030-VIS before the Board. Steve Arnaudo, Leo Arnaudo and Greg Arnaudo are partners in Arnaudo Bros., L.P. The entities grow, harvest and pack asparagus and grow cannery tomatoes and alfalfa on approximately 6,000 acres of land near Tracy, California. They directly hire their agricultural employees, which one estimate places at approximately 130 to 150 workers at the seasonal peak. During the proceedings before the Board, the partnership and the corporation stipulated they would be jointly liable for any statutory violations. Consequently, we refer to the partnership and the corporation collectively as "Grower."

The Union is a labor organization within the meaning of section 1140.4, subdivision (f) of the Agricultural Labor Relations Act. On January 14, 1977, the Union was certified by the Board as the exclusive bargaining representative of Grower's agricultural workers in San Joaquin County.

14 Cal.App.5th 27

Initial Bargaining

After the election, five years of negotiations between Grower and the Union failed to result in a collective bargaining agreement. Contact between Grower and the Union ceased in late 1981 or the first half of 1982. Exactly what happened in the last few contacts between Grower and the Union in the early 1980's is uncertain. The uncertainty about how the negotiating process ended was not resolved by a finder of fact, which assumed certain testimony presented by Grower was accurate.

2012 Renewal of Bargaining

On August 7, 2012, after at least 30 years of silence, the Union sent Grower a letter seeking to renew negotiations on a collective bargaining agreement. The letter also requested information, including (1) separate employee lists for the 2011 and 2012 seasons; (2) maps of the properties used in Grower's operations; (3) the names and titles of Grower's representatives; (4) the name and license number of any farm labor contract used by Grower; (5) Grower's agricultural products; (6) the daily and yearly hours worked by employees; (7) a summary of employee benefits and wages in 2010, 2011 and 2012; and (8) copies of current employee manuals and policies.

On August 27, 2012, the Union repeated its written request, informing Grower it would file a charge with the Board for refusals to bargain and furnish information if Grower did not respond within five days. Grower did not respond to either request within the time stated by the Union.

221 Cal.Rptr.3d 649

Union Files Unfair Labor Practice Charges

On September 10, 2012, the Union filed the charge that initiated the proceedings now before this court. The charge alleged Grower refused to provide information requested by the Union. The Board assigned the matter No. 2012-CE-030-VIS.

The Union designated Guadalupe Larios to negotiate with Grower and its attorney, Robert K. Carrol. In response to Larios's September 24, 2012, email, Carrol did not respond directly to the dates proposed for the recommencement of bargaining, but stated he would contact her after returning from South America on October 9, 2012, to discuss preliminary questions such as (1) what happened at the bargaining table between 1977 and 1982 before the Union walked away, (2) whether the bargaining unit had changed dramatically in the past 30 years, (3) whom exactly the Union believed it was representing, and (4) whether the Union had comparable contracts it would send him for review.

14 Cal.App.5th 28

The parties continued to exchange communications during the following months. For example, on November 13, 2012, Grower provided the Union with a spreadsheet that included some of the requested information for approximately 200 employees who worked for Grower through March until October of 2012. The Union determined that over 100 of the addresses given were inaccurate.

During the months the Union and Grower's attorney exchanged communications, Board's regional office investigated the charge filed by the Union. That investigation included serving a subpoena requesting some of the same information sought by the Union. During January 2013, Grower provided some information to the Union and Board. In a January 22, 2013, email to Larios, Carrol suggested that they discuss bargaining dates starting after Grower's employees returned to work "in a few more weeks."

In early February 2013, the Union filed a declaration with the Board requesting mandatory mediation and conciliation pursuant to section 1164.2 Grower filed an answer to the declaration asserting the parties had made repeated attempts to find mutually agreeable dates to commence bargaining and the Union had unilaterally abandoned that effort. On February 13, 2013, the Board issued an order directing the parties to proceed with mandatory mediation. Due to scheduling conflicts among the parties, their counsel and the mediator, the first session of mandatory mediation was set for May 24, 2013.

In April 2013, a field worker and employee of Grower circulated a document among other employees of Grower stating they did not want the Union's services or any other union. The document was signed by 86 employees.

The Unfair Labor Practice Complaint

On May 9, 2013, an unfair labor practice complaint, based...

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