Holtville Farms, Inc. v. Agricultural Labor Relations Bd., AFL-CI

• Decision Date: 17 May 1985
• Docket Number: R,AFL-CI
• Court: California Court of Appeals Court of Appeals
• Parties: HOLTVILLE FARMS, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, and UNITED FARM WORKERS OF AMERICA,eal Party in Interest. D001423.

Page 241

214 Cal.Rptr. 241

168 Cal.App.3d 388

HOLTVILLE FARMS, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, and UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest.

D001423.

Court of Appeal, Fourth District, Division 1, California.

May 17, 1985.

Review Denied July 11, 1985.

Dressler, Quesenbery, Laws & Barsamian, Newport Beach, and Larry A. Dawson, El Centro, for petitioner.

Daniel G. Stone, Sol. of the Board and Charles R. Landau, Deputy Sol., for respondent.

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

WIENER, Associate Justice.

The petition for review filed by Holtville Farms has been reviewed and considered by Presiding Justice Brown, Justices Wiener and Butler. The petition is denied. (See Tex-Cal Land Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 156 Cal.Rptr. 1, 595 P.2d 579.) Although we can summarily deny the petition without explanation, we elect not to do so in this case. We carefully consider every petition filed in ALRA matters. Administratively, in every case a memorandum is drafted, considered and modified by each justice on the panel reviewing the petition. To avoid any confusion or erroneous belief that petitions which are summarily denied are summarily examined and reviewed, we believe it will be helpful to set out the reasons for the court's summary dismissal of the petition in this case. We do not wish to set a precedent by taking this procedure in every case, but do it here to show how we typically handle such matters. The discussion which follows is essentially a selective portion of an internal memorandum.

This is a petition for review of a make-whole order by the ALRB to remedy a refusal to bargain found in 7 ALRB 15. Holtville Farms argues: the ALRB abused its discretion by utilizing the Sun Harvest contract as comparable in determining wages the Holtville Farms' employees lost as a result of the Company's refusal to bargain; pay to employees for their lunchbreak was erroneously considered by the Board to be wages rather than a fringe benefit; the formula used to compute fringe benefits the employees lost as a result of the Company's refusal to bargain is punitive; the Board's most recent decision on computation of fringe benefits should have been applied retroactively to this case; the ALJ and Board erred in rejecting evidence on the Company's economic condition and this rejection deprived it of due process of law; and, the Board decision is not based on substantial evidence in that there was no evidence that the Company would have entered into a contract paying the wages ordered by the Board had it not refused to bargain.

Utilization of Sun Harvest Contract as Comparable

Labor Code section 1160.3 provides the Board with authority to order employees made whole for loss resulting from an employer's refusal to bargain. In applying this remedial power, the Board has broad discretion. (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 160 Cal.Rptr. 710, 603 P.2d 1306.) As the Supreme Court recently noted in Carian v. Agricultural Labor Relations Bd. (1984) 36 Cal.3d 654, 674, 205 Cal.Rptr. 657, 685 P.2d 701:

"Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board's discretion and must guard against the dangers of sliding unconsciously from the narrow confines of law into the more spacious domains of policy. [Citation omitted]. In general, 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 Act.' " [Citations omitted].

When this remedial discretion is applied to the duty to determine the amount appropriate to make employees whole, "the Board may use as close approximations as possible, and may adopt formulas reasonably designed to produce such approximations." N.L.R.B. v. Brown & Root, Inc. (8th Cir.1963) 311 F.2d 447, 452. "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 omitted.] (Butte View Farms v. Agricultural Labor Relations Bd. (1979) 95 Cal.App.3d 961, 967-968, 157 Cal.Rptr. 476.)

Labor Code section 1160.8 provides, in pertinent part, "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall ... be conclusive." As the Supreme Court noted in Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 756, 195 Cal.Rptr. 651, 670 P.2d 305, "If there is a plausible basis for the Board's factual decisions, we are not concerned that contrary findings may seem to us equally reasonable, or even more so."

Petitioner challenges the Board's legal finding that in ascertaining the wages Holtville Farms' employees would have received but for the Company's refusal to bargain, it had the discretion to determine that rate from one contract rather than an average of contracts and the Board's factual determination that the Sun Harvest contract was appropriate for this purpose.

The purpose of the underlying hearing was to determine the loss, if any, sustained by employees of Holtville Farms, caused by its refusal to bargain with the Union which had been selected by its employees as their bargaining representative. In a very early case, Adam Dairy (1978) 4 ALRB No. 24 (petn. rev. den.), the Board held that to determine the loss sustained by such employees, if any, it is necessary to compare the wages and fringe benefits received by the employees with what they would have received had the employer not refused to bargain. To determine what they would have received, the Board used the state-wide average of all UFW contracts then existent. In the years since 1978, the Board has attempted to determine what the employees would have earned through various similar approaches.

In Kyutoku Nursery, Inc. (1982) 8 ALRB No. 73, the Board used one contract, the Pik 'd Rite collective bargaining agreement as comparable to calculate make whole. In Robert H. Hickam (1983) 9 ALRB No. 6, the Board used a group of ten comparable contracts. In Kawano, Inc. (1984) 10 ALRB No. 17, the Board used a group of eight comparable contracts. In C. Mondavi & Sons (1984) 10 ALRB No. 19, contracts with three Napa Valley Vineyards were used.

The Board has thus varied from utilizing an average of the wage rate in all UFW contracts to utilization of one contract, in its efforts to determine what the employees would have received had the Company not refused to bargain. When utilization of an average versus utilization of one contract is analyzed in light of the applicable principles of law, the Board's choice should be upheld unless it is found to be a "patent attempt to achieve ends other than those which can fairly effectuate the policies of the Act." Here, it does not seem to be so. While it is an approximation and alternatives equally or more reasonable may be chosen by this Court if it were deciding the case de novo, the Board's choice does seem to be a reasonable approximation of the loss sustained by the employees.

The ALRB found the Sun Harvest contract to be a reasonable choice because, "it was executed approximately when the make-whole period began; Sun Harvest grows the same crops in the same geographic region as Respondent; the Sun Harvest contract includes job classifications that are similar to the job classifications in Respondent's work force; and Respondent concedes that it twice unilaterally raised its employees' wage rates to reflect the Sun Harvest rates." (Holtville Farms, Inc. (1983) 10 ALRB 13.)

Respondent challenges the use of the Sun Harvest contract on the basis that Sun Harvest is dissimilar to Holtville Farms: Sun Harvest was a farming and harvesting company while Holtville Farms was only a farming company; Sun Harvest operated in a number of locations in California and Arizona while Holtville Farms operated only in the Imperial Valley; and the two companies grew different crops. It further argues that the averaging approach of Adam Dairy is required.

While Sun Harvest and Holtville Farms are not identical, a substantial portion of the business of both is the growing of lettuce in the Imperial Valley. The wage rates utilized by the ALRB were for the Imperial Valley portion of the Sun Harvest operation for the same classifications as those of Holtville Farms (farming as opposed to harvesting) for the same crop (lettuce). The Sun Harvest contract was signed one month after the Holtville Farms' make-whole period commenced to run. The similarity between the two companies' work forces was made even more evident when Holtville Farms twice unilaterally raised the wages of its employees to match those of the Sun Harvest contract.

In short, the comparable contract standard utilized by the ALRB to determine what the Holtville Farms' employees lost as a result of Petitioner refusing to bargain with the Union is reasonable and the Sun Harvest contract is appropriate to use for the purpose of comparison.

Petitioner notes that the Sun Harvest agreement was entered into one month after Holtville Farms make-whole period commenced. It argues that for this reason its use is inappropriate. As the Board points out in its brief, the fact that the refusal to bargain period and execution of the Sun Harvest contract do not perfectly coincide does not make use of that contract as one entered into by a comparable employer unreasonable. The record supports the Board's finding that the Sun Harvest wage rate was agreed to by another Imperial Valley grower, effective several months before the refusal to bargain period commenced. The issue before the...