J. R. Norton Co. v. Agricultural Labor Relations Bd.

• Decision Date: 15 June 1987
• Docket Number: AFL-CI,R
• Citation: 238 Cal.Rptr. 87,192 Cal.App.3d 874
• Parties: , 116 Lab.Cas. P 56,398 J.R. NORTON COMPANY, Petitioner, v. The AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest. Civ. F000392, F000461.
• Court: California Court of Appeals Court of Appeals

Page 87

238 Cal.Rptr. 87

192 Cal.App.3d 874, 116 Lab.Cas. P 56,398

J.R. NORTON COMPANY, Petitioner, v. The AGRICULTURAL LABOR RELATIONS BOARD, Respondent;

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

Civ. F000392, F000461.

Court of Appeal, Fourth District, Division 2, California.

June 15, 1987.

Dressler, Quesenbery, Laws & Barsamian, Marion I. Quesenbery, Lewis Janowsky, and Patricia J. Rynn, Newport Beach, for petitioner J.R. Norton Co

Manuel M. Medeiros, Daniel G. Stone, Kevin Robinson and Richard Michael Fischl, Sacramento, for respondent Agricultural Labor Relations Bd.

Dianna Lyons, Federico G. Chavez, Daniel A. Garcia, and Wendy Sones, Sacramento, for real party in interest United Farm Workers of America, AFL-CIO.

RICKLES, Associate Justice.

Petitioner J.R. Norton Company (Norton or employer) seeks a review of a final decision and order of the Agricultural Labor Relations Board (Board or ALRB) in the Matter of J.R. Norton Company (1982) 8 ALRB No. 76 and in the Matter of J.R. Norton Company (1983) 9 ALRB No. 18.

Norton contests the Board's findings it violated the Agricultural Labor Relations Act (ALRA or act) in 8 ALRB No. 76 by: (1) failing and refusing to rehire members of Crew W because of their union support (§ 1153, subds. (a), (c)); ¹ (2) threatening an employee with discharge because of his union activities (§ 1153, subd. (a)); (3) instituting a wage increase without bargaining in good faith with the union (§ 1153, subds. (a), (e)); (4) failing to bargain before changing labor camp accommodations (§ 1153, subds. (a), (e)); and (5) refusing to rehire employees who participated in work stoppage during the Salinas harvest (§ 1153, subds. (a), (c)).

Norton contends the Board abused its remedial discretion by (1) issuing an overbroad cease and desist order; (2) ordering Norton to "make whole" employees for damages suffered as a result of Norton's unilateral wage increase; (3) failing to cut off back pay after the 1979 season; (4) computing back pay by use of the J & L Farms formula; and (5) using the Lu-Ette Farms formula for computing interest on back-pay awards.

Norton contests the Board's findings it violated the ALRA in 9 ALRB No. 18 by:

(1) failing and refusing to rehire Elodio Aguirre (Aguirre) and Alberto Sanchez (Sanchez) because of their union support (§ 1153, subds. (a), (c)); (2) failing to rehire Jose Espinoza (Espinoza) because of union support (§ 1153, subds. (a), (c)); (3) unlawfully interrogating and threatening Atilano Jiminez Martinez (Jiminez) regarding his union activities and the filing of an ALRB charge (§ 1153, subds. (a), (c), (d)); and (4) interfering with and surveilling union activities by Antonio Roman (§ 1153, subd. (a)).

In 9 ALRB No. 18, Norton claims the remedial order issued by the Board was punitive because it required an excessive number of mailings and applied the Lu-Ette Farms (1980) 8 ALRB No. 55, interest rates to the back-pay awards.

INTRODUCTION

Norton is a large lettuce producer with its corporate headquarters located in Phoenix, Arizona. Norton's administration and management are centralized in Phoenix, Arizona. Its payroll operations and all other company records are also maintained in Phoenix. It carries on an extensive year-round farming and harvesting operation in California, New Mexico and Arizona. Norton's harvesting sequence is as follows: January to March in the Imperial Valley, California; early March to early April in Blythe, California; April in Arizona; late April or early May to early October in Salinas, California; October in New Mexico; late October to early November in Central Arizona; late November to late December in Blythe, California. There may be an overlap of a week or more between harvesting that is winding down in one location and one that is starting up at the next location. Norton maintains offices in Salinas, Brawley (Imperial Valley), Palo Verde (Blythe), and Chandler, Arizona, to assist in coordinating the farming operations in those areas.

United Farmworkers (UFW or union) was certified as the exclusive bargaining agent for Norton's Salinas area agricultural employees in November 1975. The UFW was certified as the exclusive bargaining agent for Norton's Imperial and Palo Verde areas in August 1977. Norton has never signed a contract with the union. The claimed unfair labor practices arose primarily out of the Salinas operation.

I

8 ALRB No. 76

RES JUDICATA

As indicated Norton operates a number of fields in California, Arizona and New Mexico. The UFW has been elected the sole bargaining agent for some of these operations. Many people stay with Norton as the harvesting season moves from one field to another.

The UFW filed separate charges against Norton for alleged ALRA violations in different fields. Two separate ALJ decisions were rendered, and two separate ALRB decisions resulted. (8 ALRB No. 76 and 8 ALRB No. 89.) In reviewing the 8 ALRB No. 76 opinion, this court consolidated it with 9 ALRB No. 18 which required "dead-time" while the record was prepared in the latter case. During this dead time, both the First District Court of Appeal and the State Supreme Court summarily denied petitions for review of 8 ALRB No. 89.

Because of Norton's circuit-harvesting process, similar issues can be found in 8 ALRB No. 76 and 8 ALRB No. 89. Interestingly enough, the Board concluded these cases were not proper for consolidation. Now we are requested to give res judicata effect to 8 ALRB No. 89 in our present review of 8 ALRB No. 76.

Briefly, res judicata will preclude parties or their privies from relitigating issues that were or could have been raised in a prior action that has resulted in a final judgment. The related concept of collateral estoppel will preclude relitigation of an issue of fact or law necessarily decided in a prior judgment in a subsequent suit involving a party to the first case. (Allen v. McCurry (1980) 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308, 313.)

Although the final order in 8 ALRB No. 89 came from an administrative body, this will not preclude the res judicata Res judicata effect will be given only to those matters which were directly in issue and in fact decided. (Code Civ.Proc., § 1911; County of L.A. v. Continental Corp. (1952) 113 Cal.App.2d 207, 219, 248 P.2d 157.) The UFW raises four issues which it contends deserve res judicata effect. First, whether certain discriminatees were engaged in protected activities during Norton's 1979 Salinas harvest. Second, whether certain discriminatees' participation in a series of work stoppages in the 1979 Salinas harvest was condoned by Norton. Third, whether Norton's failure to rehire those workers at subsequent harvests was contrary to its past hiring practices. Fourth, whether Norton was illegally motivated in refusing to rehire the discriminatees in its subsequent harvests.

                and collateral estoppel doctrines from operating.  (People v. Sims (1982) 32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321.)   The final judgment rule is in effect as a result of the Supreme Court's denial of the petition.  Although the ALJ and ALRB decisions in both cases were handed down at relatively the same time, we as an appellate court will give res judicata effect to the 8 ALRB No. 89 opinion insofar as it is applicable.  (Domestic & Foreign Pet Co. Ltd. v. Long (1935) 4 Cal.2d 547, 562, 51 P.2d 73.)
                

In 8 ALRB No. 89 at page 15, one of the issues was whether Norton discriminatorily failed to rehire certain 1979 employees in its Salinas harvest of 1980. Sometime in August 1979, a number of workers at the Salinas location engaged in work stoppages designed to coerce Norton into collective bargaining. In September Norton began replacing these workers, but ultimately allowed some of them to return after signing a document indicating they would not leave work unless instructed to do so. Some of these employees found it difficult to obtain work with Norton in future harvests. Hence, the issue as stated above was presented for resolution.

The Board concluded Norton abandoned an informal seniority system of hiring, that Norton condoned the work stoppages, which entitled those who signed the document to protection of the "condonation doctrine" and therefore "Norton discriminatorily failed and refused to rehire the 1979 work stoppage participants for the 1980 Salinas harvest."

In making this finding the Board relied on evidence from 26 of the work stoppage participants to conclude the entire group had been subject to unlawful labor practices. The Board acknowledged that generally each discriminatee must prove he or she made application when work was available, that an established policy existed to rehire former employees, and the applicants' failure to be hired was based on a protected activity. The Board, in relying on Kawano, Inc. v. Agricultural Labor Relations Bd. (1980) 106 Cal.App.3d 937, 165 Cal.Rptr. 492, did not require individual proof. The Kawano "class discrimination theory" provides "if an employer unequivocally and publicly promulgates his unconditional refusal to rehire a certain category of employees, proof of such promulgation excuses the need to prove individuals in the category made application for rehire which would under the circumstances have been futile." (Id., at p. 952, 165 Cal.Rptr. 492.) In its make-whole order, the Board specified 31 persons only had been the subject of unfair labor practices.

We now answer the UFW's specific requests for res judicata effect. The UFW cites to pages 34-35 of 8 ALRB No. 89, arguing the Board concluded the discriminatees were engaging in protected activities during Norton's 1979 Salinas harvest. Neither these specific pages nor any others in this opinion explicitly or implicitly state such a conclusion.

Next, res judicata effect is requested for the Board's conclusion that 1979 Salinas work stoppages were condoned by Norton. The Board indeed made such a conclusion. In the present...