Nish Noroian Farms v. Agricultural Labor Relations Bd.

• Decision Date: 02 April 1984
• Docket Number: AFL-CI,R
• Citation: 201 Cal.Rptr. 1,677 P.2d 1170,35 Cal.3d 726
• Court: California Supreme Court
• Parties: , 677 P.2d 1170 NISH NOROIAN FARMS, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA,eal Party in Interest. L.A. 31787.

Page 1

201 Cal.Rptr. 1

35 Cal.3d 726, 677 P.2d 1170

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

L.A. 31787.

Supreme Court of California,

In Bank.

April 2, 1984.

[677 P.2d 1173] Marion I. Quesenbery, Dressler, Quesenbery, Laws & Barsamian, Newport Beach, for petitioner

Ismael Castro, Agricultural Labor Relations Bd., Sacramento, for respondent.

Diana Lyons, United Farm Workers of America, AFL-CIO, Sacramento, for real party in interest.

GRODIN, Justice.

Under a formula first adopted by the Agricultural Labor Relations Board (ALRB or Board) in Sunnyside Nurseries, Inc. (1977) 3 A.L.R.B. No. 42, backpay owed an unlawfully discharged employee for a particular day may be offset only by wages earned in outside employment on that same day. We granted hearing to consider the contention of Nish Noroian Farms (Noroian) that this formula is not a proper exercise of the Board's remedial discretion under the Agricultural Labor Relations Act (ALRA). We conclude that the rule can be applied fairly and must be upheld. We also rule that the Board could order Noroian to bargain about the California effects of its unilateral change in residency requirements

for irrigators working in Arizona. We find that Noroian's remaining contentions lack merit as well. We therefore affirm the Board's order in full.

FACTS

Noroian, a sole proprietorship, engages in agriculture in both California and Arizona. On November 30, 1976, real party United Farm Workers of America (UFW) was certified by the ALRB as the collective bargaining representative for certain of Noroian's employees.

Negotiations for a collective bargaining agreement continued through 1977. During this period, each side filed charges with the Board that the other was refusing to bargain in good faith. (Lab.Code, § 1153, subd. (e).) ¹ On February 24, 1978, the UFW lodged a new charge with the Board--that Noroian had laid off, then refused to rehire, irrigator Emiliano Becerril on the basis of his union activities. (See § 1153, subds. (a), (c).) ² The UFW designated this charge as number 77-CE-141-3-E, but the Board gave it the number 78-CE-10-E.

On May 8, 1978, the parties reached agreement on a contract. They also entered a written settlement of the pending unfair labor practice charges. By its terms, Noroian was to pay a specified sum to the ALRB for distribution to certain employees. The parties "mutually waive[d] any and all unfair labor practice charges alleging bad faith bargaining for conduct as of the date of the signing of this contract." A separate paragraph exempted the Becerril charge; it provided that "[c]harge 77-CE-141-3-E [78-CE-10-E] is not affected by the settlement agreement, and will be litigated separately."

On July 12, 1978, the Board's regional director dismissed the Becerril charge. At the UFW's request, the General Counsel reviewed the dismissal. On August 10, 1978, he affirmed the regional director's decision. However, he remanded for further investigation whether the refusal to rehire Becerril stemmed from a unilateral change in hiring policy about which Noroian had unlawfully failed to bargain.

That same day, Noroian signed a formal Board Settlement Agreement prepared by a staff attorney for the ALRB and later executed by all other parties. The formal agreement stipulated to entry of a Board order resolving the pending charges. It deemed the May 8 agreement a part of the record in the consolidated proceedings. It expressly provided that "the alleged layoff and failure by [Noroian] to rehire Emiliano Becerril" was not covered by the settlement and would "abide further investigation and independent resolution by the Board."

On January 12, 1979, the Board issued a complaint bearing the Becerril case number. The complaint alleged that sometime during December 1977, or January or February 1978, Noroian had implemented a new policy prohibiting the use of California residents to do irrigation work on its Arizona properties. "It was pursuant to this new policy that ... Noroian refused to rehire ... Becerril and John Does 1-10 on or about February 18, 1978." Noroian's failure to bargain about this change, said the complaint, was a violation of section 1153, subdivision (e). ³ The charge was later amended to include Arturo Baca, another irrigator, as a victim of the unlawful action.

The administrative law officer (ALO) rejected Noroian's claim that the refusal-to-bargain charge was barred by the prior In its exceptions to the Board, Noroian contended that it had no duty under the ALRA to bargain about Arizona work and hiring policies. The Board found it unnecessary to reach that issue, "since Respondent did not eliminate only Arizona work when it changed its dual-state irrigator policy, it eliminated the California component of Becerril's work as well. Thus, it unilaterally eliminated California unit work...." (Italics in original.) On that basis, the Board affirmed the finding that Noroian had violated section 1153, subdivisions (a) and (e). Like the ALO, it imposed cease-and-desist, bargaining, reinstatement, and backpay remedies. The Board directed that backpay be computed "according to the formula stated in J & L Farms (Aug. 12, 1980) 6 ALRB No. 43, ..."

settlement. He further found that Noroian had violated subdivisions (a) and (e) of section 1153 by "eliminating the use of employees who resided in California as Irrigators at its Arizona operations" without notifying the employees' bargaining representative about the impact of the change on their wages, hours, and working conditions. The ALO ordered, among other things, that Noroian cease and desist from refusing to bargain in good faith and that it bargain about the effect of the new policy. He also directed that Becerril and Baca be reinstated with backpay through the bargaining period, backpay "to be computed under the formula used in Sunnyside Nurseries [supra] ...."

Noroian petitioned the Court of Appeal, Fourth Appellate District, for review. (§ 1160.8.) The court granted the petition in order to consider whether (1) the Becerril refusal-to-bargain charge was barred by the prior settlement, (2) the Board's finding that Becerril and Baca had lost work as the result of an unlawful unilateral policy change was within its jurisdiction and supported by substantial evidence, and (3) the remedial order was appropriate. ⁴

THE SETTLEMENT AGREEMENT

The National Labor Relations Board (NLRB) refuses to consider evidence of unfair labor practices which antedate a settlement agreement. (Larrance Tank Corporation (1951) 94 N.L.R.B. 352, 353.) A major exception is conduct which was specifically reserved from settlement by mutual agreement of the parties. (Steves Sash & Door Co. (1967) 164 N.L.R.B. 468, 473, enforced, Steves Sash & Door Company v. N.L.R.B. (5th Cir.1968) 401 F.2d 676.) The Board found that since the Becerril case was expressly excluded from the settlement between Noroian and the UFW, it could be litigated.

Noroian disputes the scope of the exclusion, contending it applied only to the original charge, based on section 1153, subdivision (c), that Becerril had been dismissed in retaliation for his union activity. As Noroian notes, the May 8 agreement included the parties' express waiver of "any and all ... charges alleging bad faith bargaining for conduct as of the date of the signing of this contract." (Italics added.) Noroian urges that the Board was therefore precluded from transforming the original discrimination charge into one alleging a refusal-to-bargain violation under subdivision (e).

We disagree. A written instrument must be construed as a whole, and multiple writings must be considered together when part of the same contract. (Civ.Code, §§ 1641, 1642.) The factual context in which an agreement was reached is Here the waiver provision in the May 8 settlement must be examined in light of the formal August 10 agreement which incorporated and superseded it. Noroian emphasizes that the May 8 agreement reserved only "charge 77-CE-141-3-E" for further litigation. This Noroian urges, demonstrated an intent to confine the exception to the exact allegations which had already been made by the UFW. But the language of the exception contained in the August 10 formal settlement is much broader. It reserves "the alleged layoff and failure ... to rehire ... Becerril" for "further investigation" and "independent resolution" by the Board.

also relevant to establish its meaning unless the words themselves are susceptible to only one interpretation. (Id., § 1647; see Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 38-40, 69 Cal.Rptr. 561, 442 P.2d 641.)

That language accords with labor policy and the practice of both state and national labor boards. Under the National Labor Relations Act (NLRA), the NLRB is not confined by the facts and theories framed in the original charge it receives. The boards are fora for the vindication of public, not private, rights, and a charge filed with either is not the equivalent of a court complaint. The original charge merely invokes the board's jurisdiction "to make full inquiry under its broad investigatory power" in the public interest. While the board is precluded from " 'expand[ing] the charge as [it] might please, or [ignoring] it altogether,' " the final complaint need not adhere "to the specific matters alleged in the charge ...." (Labor Board v. Fant Milling Co. (1959) 360 U.S. 301, 307-309, 79 S.Ct. 1179, 1183-1184, 3 L.Ed.2d 1243; see also Wirtz v. Laborers' Union (1968) 389 U.S. 477, 482, 88 S.Ct. 639, 641, 19 L.Ed.2d 716; John Elmore, Inc. (1978) 4 A.L.R.B. No. 98 (ALO Dec., pp. 36-37).)

Here the unfair practices alleged in the Board's complaint were "related to those alleged in the charge and [grew] out of them." (Fant Milling Co., supra, at p. 309, 79 S.Ct., at p. 1184.) The termination and refusal to...