Bertuccio v. Agricultural Labor Relations Bd.

• Decision Date: 21 July 1988
• Docket Number: Nos. H000334,R,AFL-CI,H000351,H000352 and H000302,s. H000334
• Citation: 249 Cal.Rptr. 473,202 Cal.App.3d 1369
• Court: California Court of Appeals Court of Appeals
• Parties: , 124 Lab.Cas. P 57,318 Paul W. BERTUCCIO, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest. BERTUCCIO FARMS, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest.

Page 473

249 Cal.Rptr. 473

202 Cal.App.3d 1369, 124 Lab.Cas. P 57,318

Paul W. BERTUCCIO, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent;

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

BERTUCCIO FARMS, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent;

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

Nos. H000334, H000351, H000352 and H000302.

Court of Appeal, Sixth District, California.

July 21, 1988.

Certified for Partial Publication ^*

Review Denied Oct. 27, 1988.

Lewis P. Janowsky, Patricia J. Rynn, Laurie Laws-Coats, Dressler, Quesenbery, Laws & Barsamian, and Rynn & Janowsky, Newport Beach, for petitioner Paul W. Bertuccio, Bertuccio Farms

Manuel M. Madeiros, Sol. of the Bd., Daniel G. Stone, Chief Deputy Sol. & Sol. of the Bd., Robert W. Farnsworth, Former Deputy Sol., Nancy C. Smith, Cathy Christian, Michael E. Hersher, Michael G. Lee, Charles Landau, Deputy Sols., Fred A. Slimp II, Bernard McMonigle, Bd. Counsel, Agr. Labor Relations Bd., Sacramento, for respondent Agr. Labor Relations Bd. of State of Cal.

Diana Lyons, Daniel A. Garcia, Wendy Sones, Federico G. Chavez, Ellen J. Eggers, Ira Gottlieb, Silvia Viarnes, Sacramento, for real parties in interest United Farm Workers of America, AFL-CIO.

Ronald A. Zumbrun, Robin L. Rivett, James I. Collins, Pacific Legal Foundation, Sacramento, amicus curiae, for Central California Farmers Ass'n.

BRAUER, Associate Justice.

Paul W. Bertuccio, an individual produce grower doing business as Bertuccio Farms, has petitioned for review of four decisions and orders of the Agricultural Labor Relations Board. The petitions (in our proceedings H000334, H000351, H000352, and H000302) raise multiple issues. Because all of them arise out of an essentially continuous series of events, involving a single grower, we have considered them together. We conclude that one of the Board's decisions (our proceeding H000352) should be affirmed, one (our proceeding H000302) must be annulled, and two (our proceedings H000334 and H000351) must be remanded to the Board for further consideration of specified issues.

Bertuccio has been in business in San Benito County for many years. United Farm Workers of America, AFL-CIO, was designated the collective bargaining representative for workers at Bertuccio Farms at a representation election in October 1977. In November 1978 the Board dismissed Bertuccio's objections, upheld the election, and certified the UFW. In December 1978 the UFW formally demanded that Bertuccio bargain collectively.

For three and a half years, from January 1979 until July 1982, the parties bargained intermittently without reaching agreement. These proceedings arise out of events during and shortly after that period.

For convenience we shall refer to all administrative and judicial proceedings in each of the four matters by our proceeding numbers.

I. H000334 AND H000351

Two of the proceedings before us deal primarily with issues directly related to the negotiations between Bertuccio and the UFW. Our proceeding H000334, for review of Paul W. Bertuccio (1982) 8 ALRB No. 101 as modified in Paul W. Bertuccio (1983) 9 ALRB No. 61, covers the period from January 1979 through September 1980. After an interruption of several months, bargaining resumed in April 1981. Our proceeding H000351, for review of Paul W. Bertuccio (1984) 10 ALRB No. 16, covers the period from April 1981 through July 1982.

H000334 and H000351 have several issues in common. For efficiency of exposition we shall discuss the matters together.

One conclusion we shall reach, as to both matters, is that a remand is necessary for further proceedings on the makewhole remedy (Lab.Code, § 1160.3) in light of William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd. (1987) 191 Cal.App.3d 1195, 237 Cal.Rptr. 206 ("Dal Porto II "). In both H000334 and H000351 the Board has moved for a "limited remand" of the makewhole issues to the Board, before this court's judgment, for further consideration under Dal Porto II. In the circumstances a prejudgment remand would be inefficient. Instead we shall resolve all issues tendered and return a comprehensive decision to the Board in each matter.

A. SUMMARY OF ISSUES

Issues unique to H000334 arise out of the Board's conclusion that under the Agricultural Labor Relations Act Bertuccio had been obliged, but had failed, to bargain with the UFW concerning the effects of his June 1979 decision to sell a certain garlic crop for seed (rather than to permit his workers to harvest it for market), but had not been obliged to bargain concerning the decision itself. We shall conclude that Bertuccio was required to bargain neither the decision nor its effects, and shall annul so much of the decision and order as finds Bertuccio to have been guilty of an unfair labor practice for having failed to bargain the effects.

At issue primarily or exclusively in H000351 are the Board's conclusions

(1) That Bertuccio's insistence on exclusion from the bargaining unit of certain workers provided by labor contractor Quintero amounted to a refusal to bargain in good faith. We shall affirm this conclusion.

(2) That Bertuccio had improperly bargained directly with members of the bargaining unit concerning wages. We shall conclude that the record is insufficient to show more than a minimal and hypertechnical impropriety not amounting to an unfair labor practice.

(3) That the UFW had not been bound by Bertuccio's acceptance, on the eve of the Administrative Law Judge hearing, of a package proposal the UFW had tendered three months before at the session at which negotiations had broken down. We shall reverse this conclusion, finding as a matter of law that the acceptance was effective and that the UFW should have entered into a collective bargaining agreement.

At issue in both H000334 and H000351 are Board conclusions

(1) That in seven instances Bertuccio had not furnished timely or otherwise adequate responses to certain of the UFW's requests for information. We shall conclude that in five of the seven instances the record does not support the Board's conclusion.

(2) That Bertuccio had been obliged, but had failed, to bargain with the UFW concerning "unilateral" increases in wages to his employees while negotiations were continuing. We shall affirm this conclusion in each matter.

(3) That in cumulative effect Bertuccio had improperly engaged in "surface bargaining" (i.e., had gone through the motions without any real intent to reach a (4) That the UFW had not refused to bargain in good faith. We shall affirm this conclusion in each matter.

collective bargaining agreement). We shall affirm this conclusion in each matter.

(5) That in addition to other remedies Bertuccio should be required to make his employees whole for economic losses, with interest keyed to the prime rate adjusted annually. In each matter we shall reject Bertuccio's challenge to the Board's use of a variable interest rate, but shall remand the matter of makewhole to the Board for further proceedings, upon specified terms, in light of (1) our determination of other issues as set forth below, (2) the recent decision in Dal Porto II, and (3) (in H000351) evidence of strike violence, relevant to the Board's determination whether makewhole should be ordered but improperly excluded by the ALJ's rulings.

B. THE ISSUE RAISED IN H000334

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C. ISSUES RAISED PRIMARILY IN H000351

1. Quintero.

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2. Direct Bargaining.

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3. Bertuccio's Unqualified Acceptance.

The Board concluded in H000351 that in the circumstances of record Bertuccio's July 25, 1982, acceptance of the UFW's April 8, 1982, package proposal was ineffective. Read in light of recent federal decisions, the record before us establishes as a matter of law that Bertuccio's acceptance was fully effective and that a collective bargaining agreement should have been entered into at that time. We conclude that in light of the acceptance Bertuccio should in no event be subject to a makewhole order, in H000351, for any period after July 24, 1982.

For some time before the April 8, 1982, meeting Bertuccio and the UFW had been bargaining with reference to some 51 separately identifiable topics. It sufficiently appears that as the April 8 meeting began some 18 topics remained in dispute. At the beginning of the meeting Bertuccio (by Gega) presented a written proposal as to 17 of the remaining topics.

In the course of the meeting the UFW presented a written proposal of its own. In essence the UFW agreed with Bertuccio as to 11 topics, leaving seven in dispute: Union security, seniority, a medical plan, duration of the agreement, wage rates, and the two closely interrelated topics which by this time were probably the focus of dispute between the parties: Hiring and the bargaining unit.

The UFW proposal at the April 8 meeting was presented through a mediator, after a union caucus part way through the meeting. The most significant UFW concession was in a handwritten addendum, prepared during the caucus, by which the UFW proposed that harvest operations on five enumerated crops be excluded from the bargaining unit. The UFW had never previously budged on the bargaining-unit issue: It had regarded the bargaining unit as "the lifeblood of the union at the ranch." But the UFW's proposal was what it called "a settlement package": "[W]e made a decision to give them five. Give them five harvest operations to get this thing wrapped up. [Par.] We wanted a contract that day." If Bertuccio had agreed to the UFW's proposal submitted at the April 8 meeting, the UFW would have been willing to sign a contract on that basis.

On hiring, on April 8 Bertuccio had resubmitted a proposal the crux of which was that Bertuccio would be permitted to use labor contractors as he had previously. The UFW's proposal was for a centralized hiring procedure similar to that outlined by Bertuccio, but without exception for labor...