Montebello Rose Co. v. Agricultural Labor Relations Bd.

• Decision Date: 12 May 1981
• Docket Number: No. 5,AFL-CI,R,5
• Court: California Court of Appeals Court of Appeals
• Parties: MONTEBELLO ROSE COMPANY, INC., etc., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest. Civ. 5266.

Page 856

173 Cal.Rptr. 856

119 Cal.App.3d 1

MONTEBELLO ROSE COMPANY, INC., etc., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent;

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

No. 5 Civ. 5266.

Court of Appeal, Fifth District, California.

May 12, 1981.

Hearing Denied July 21, 1981.

Thomas, Snell, Jamison, Russell, Williamson & Asperger, Fresno, for petitioner

General Counsel, Agricultural Labor Relations Board, for respondent.

Dianna Lyons, Marco E. Lopez, Carlos M. AlcalEa, Francis E. Fernandez and Carmen S. Flores, Sacramento, for real party in interest.

OPINION

FRANSON, Associate Justice.

INTRODUCTION

This review presents four questions arising in the context of collective bargaining under the Agricultural Labor Relations Act: (1) whether the doctrine of res judicata bars relitigation of the good faith bargaining issue in an unfair labor practice proceeding after the Agricultural Labor Relations Board has denied an extension of the initial certification under Labor Code section 1155.2, subdivision (b); ¹ (2) whether an employer's duty to bargain with the certified employee representative continues beyond the initial certification year absent an extension of the certification period as provided in section 1155.2, subdivision (b); (3) whether the six-month limitation period for issuing an unfair labor practice complaint set forth in Labor Code section 1160.2 is tolled in a surface bargaining case until such time as the charging party discovers, or in the exercise of reasonable diligence should have discovered, the other party's bad faith in bargaining; and (4) whether written communications between an employer and his attorney-negotiator concerning pending collective bargaining negotiations are within the attorney-client privilege or any other recognized privilege.

We answer the first and fourth questions in the negative and the second and third questions in the affirmative. Other contentions of the employer are treated seriatim.

STATEMENT OF THE CASE

The order of the Agricultural Labor Relations Board (Board) is based on findings that petitioner Montebello Rose Company, Inc. (Montebello) engaged in unfair labor practices in violation of Labor Code section 1153, subdivisions (a), (c) and (e), ² by discriminatorily firing certain employees because of union activity and by failing to bargain in good faith with real party in interest United Farm Workers of America, AFL-CIO (UFW or the union).

The procedural history of this protracted and complex case is as follows:

The UFW was certified as the collective bargaining representative for Montebello's employees on December 3, 1975. After some three-month delay, several negotiating sessions were held in the first half of the certification year; however, negotiations came to a standstill in June 1976, when Montebello declared that an impasse had been reached. No further negotiations took place during the certification year.

On October 4, 1976, as the initial certification year was drawing to a close, the union filed a petition with the Board seeking extension of the union's certification pursuant to section 1155.2, subdivision (b). This section allows the Board to extend certification if it finds the employer has failed to bargain in good faith. On November 10, 1976, the Board denied the UFW's petition, finding that the union had failed to show bad faith in the bargaining process on Montebello's part.

After the UFW's certification year expired on December 3, 1976, the union continued to press for negotiations with Montebello. Montebello, however, took the position that it had no duty to bargain with the UFW after its certification year ended. ³ On February 4, 1977, Montebello filed an action for declaratory relief in the Kern County Superior Court, seeking a determination whether it was obligated to bargain after the certification year expired. ⁴

While the declaratory relief action was pending, the general counsel filed a complaint against Montebello alleging that Montebello had committed an unfair labor practice by refusing to bargain with the UFW since about February 3, 1977. The complaint originally alleged only the refusal to bargain after the certification year had ended; however, the complaint was later amended to allege Montebello's refusal to bargain in good faith during the certification year. The complaint also alleged that Montebello committed unfair labor practices by terminating the employment of six named employees because of their support of the UFW.

A 21-day hearing was conducted before an ALO between June and September 1977. ⁵ The ALO found that Montebello had refused to bargain in good faith with the union in violation of section 1153, subdivision (e); that Montebello had maintained a pretense of negotiation with a view toward avoiding a strike during the crucial budding season when the employees were needed to perform work on Montebello's rosebushes.

The following conduct by Montebello formed the basis for the ALO's decision: (1) insisting on provisions predictably unacceptable to the UFW; (2) bargaining in bad faith on several matters including a provision for collection of union dues and a provision for contributions to a specific medical plan; (3) refusing to focus on reasons for some of Montebello's positions and giving pretextual reasons for opposition to certain UFW proposals; (4) failing to make positive efforts to find common grounds for agreement in areas of conflict; (5) contriving an artificial impasse on June 10, 1976, and refusing to bargain with the UFW thereafter unless the union would accept responsibility for the impasse; and (6) refusing to bargain with the UFW after expiration of the certification year.

The ALO also relied on Montebello's conduct away from the bargaining table as evidence of its bad faith, including Montebello's attempt to bargain directly with its employees in derogation of the union as the employees' exclusive bargaining agent.

The ALO also concluded that Montebello had violated section 1153 subdivisions (c) and (a) by discriminatorily discharging two employees and laying off four others because of their union involvement. The ALO rejected as pretextual Montebello's asserted business justifications for these actions.

By way of remedy, the ALO recommended reinstatement and back pay for the employees discharged and also recommended that a make-whole remedy be imposed for the failure to bargain in good faith. The ALO recommended that the period covered by the make-whole remedy should commence April 22, 1976; this was based on his conclusion that the six-month limitations period in section 1160.2 precluded any relief for bad faith refusal to bargain prior to that date because no charge had been filed alleging such bad faith until October 22, 1976.

The Board affirmed the findings and conclusions of the ALO with respect to the discriminatory discharges and the refusal to bargain in good faith.

As a remedy, the Board adopted the ALO's proposed order with the modification that the make-whole remedy should be imposed for the period commencing February 4, 1976, rather than April 22, 1976. The Board concluded that notwithstanding the statute of limitations in section 1160.2, the remedy should be imposed from the earlier date in February, which it determined in hindsight to be Montebello's first manifestation of bad faith. The Board reasoned that the six-month limitations period in section 1160.2 was not a bar to such relief because the statute had been tolled during the period Montebello engaged in surface bargaining since the union had no actual or constructive notice of Montebello's bad faith until the artificial impasse was declared on June 10, 1976.

The Board's order also required other remedial actions by Montebello including that it meet and negotiate with the union on demand. The Board also extended the union's certification for one year from the date of the order.

STATEMENT OF THE FACTS ⁶

Montebello Rose Company is a family-owned corporation which grows rosebushes in McFarland, California. At relevant times, Fred Mungia was Montebello's president and Richard Barwick its general manager. In years past, Montebello has employed in excess of 100 employees during the peak harvest season. Fewer employees are needed in other seasons; however, during the period from late April to early June, there is a particular need for employees to perform the crucial "budding" or grafting work on the rosebushes.

On November 17, 1975, the UFW received a strong majority (95 out of 111) of the ballots cast at a representation election among Montebello's employees. On December 3, 1975, the union was certified as the exclusive bargaining representative for Montebello's employees. Three days later the president of the UFW wrote to Montebello asking for a preliminary negotiating meeting and requesting Montebello to send certain information the union wanted to use in preparing proposals. The UFW's negotiator, Sylvan Schnaittacher followed up this letter with phone calls to Montebello, but Schnaittacher had difficulty reaching anyone who would accept responsibility for negotiations. Eventually, Schnaittacher learned that William Callan was to handle the negotiations for Montebello.

After several unsuccessful attempts by Schnaittacher to set up a meeting with Montebello representatives and after Cesar Chavez sent a letter to Montebello's president threatening legal action if no meeting was arranged, Montebello representatives met with the union for the first session on January 21, 1976 about six weeks after the UFW's first request for a meeting. Callan represented Montebello and Schnaittacher was spokesman for the union at this meeting. The UFW submitted its first proposal which was reviewed at the January 21st meeting. A second meeting was held on February 4th, at which time there was further discussion of the union's proposal. At the end of this session, it was agreed that it...