Vessey & Co. v. Agricultural Labor Relations Bd., AFL-CI

CourtCalifornia Court of Appeals
Citation210 Cal.App.3d 629,259 Cal.Rptr. 77
Decision Date21 April 1989
Docket NumberNos. D007124,R,D007175,AFL-CI,s. D007124
Parties, 116 Lab.Cas. P 56,340 VESSEY & COMPANY, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; and UNITED FARM WORKERS OF AMERICA,eal Party in Interest. Carl MAGGIO, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; and UNITED FARM WORKERS OF AMERICA,eal Party in Interest.
Littler, Mendelson, Fastiff & Tichy, Scott A. Wilson, and Theodore R. Scott, San Diego, for petitioner Vessey

Gray, Cary, Ames & Frye, Merrill F. Storms, Jr., and John A. Finley, San Diego, for petitioner Maggio.

Dave Stirling and Michael D. Stump, Sacramento, for respondent.

Dianna Lyons, Sacramento, for real party in interest.

HUFFMAN, Associate Justice.

Vessey & Company, Inc. (Vessey) and Carl Maggio, dba Maggio Farms, (Maggio) petition this court under Labor Code section 1160.8 2 for review of Agricultural Labor Relations Board (ALRB or Board) decision 13 ALRB No. 17, which determined Vessey and Maggio, separately and collectively, engaged in lawful bargaining with the United Farm Workers of America (UFW) but violated sections 1153(a) and (c); Maggio failed to treat, with the exception of its tractor drivers and irrigators, the returning strikers' offers to return to work in a nondiscriminatory fashion [210 Cal.App.3d 638] and Vessey failed to establish "legitimate and substantial business justifications" for not immediately reinstating certain returning economic strikers classified as tractor drivers, irrigators and sprinklers.

Maggio also seeks review of Board decision 13 ALRB No. 22, which modifies 13 ALRB No. 17, by clarifying the remedy against Maggio after finding Maggio hired permanent replacements before receipt of the strikers' unconditional offers to return to work.

As part of the decisions and pursuant to section 1160.3, the Board ordered Vessey to cease and desist from its unlawful rehiring practices, offer full and immediate reinstatement to certain listed strikers without prejudice of seniority and other employment rights, reimburse those strikers for back pay and other economic losses plus interest, mail and post the customary "notice" stating the findings against Vessey and the strikers' rights, and keep the regional director apprised of steps taken to comply with the order until full compliance is achieved.

As to Maggio, the Board issued the same cease and desist, "notice", and appraisal orders, and limited Maggio's requirement to reinstate strikers and reimburse them for back pay and other economic losses to those workers who were deprived of reinstatement after tendering their unconditional offers solely due to Maggio's altered, discriminatory seniority system.

Vessey and Maggio generally contend the Board's findings and ordered remedies are not supported by substantial evidence, applicable law, and violate the United States and California Constitutions. Vessey specifically argues the Board's decision violates due process because the Administrative Law Judge (ALJ) allowed the ALRB to amend its complaint to allege Vessey's employees were "economic strikers" after the case was closed and Vessey had no time to address the new alternative charge, the decision is unsupported by sufficient evidence to show the strikers made a sincere and unconditional offer to return to work and Vessey had not permanently replaced

the strikers before they offered to return to work, and it unlawfully reversed the ALJ's finding Vessey lawfully refused to offer immediate reinstatement to its tractor drivers and irrigators. Maggio merely challenges the sufficiency of the evidence to support the decisions

To set the scene for our discussion of the specific arguments of Vessey and Maggio, we briefly sketch the procedural and factual background, our standard of review, and set out the evidence in the record at length.

[210 Cal.App.3d 639]


Sometime before 1977, both Vessey and Maggio, agricultural employers in Imperial County subject to provisions of the Agricultural Labor Relations Act (Act) ( § 1140 et seq.), had negotiated labor contracts with the Teamsters Union. Thereafter, the UFW was certified as the new bargaining representative for the workers and separate contracts with each employer were entered into in 1977, to run through December 31, 1978.

Before the end of that period, a new industry-wide bargaining group of approximately 26 growers in the Salinas and Imperial Valley areas was set up to negotiate a new agreement with the union. Because of ongoing bargaining, Vessey's and Maggio's contracts were extended to January 15, 1979. When no new agreement was reached before the contract expired, the UFW initiated strikes on January 19 and 20, 1979. Then, on February 28, 1979, the group of employers, which included Vessey and Maggio, declared an impasse and broke off negotiations. (See Joe Maggio, Inc., et al. (Oct. 7, 1982) 8 ALRB No. 72, pp. 3-4 (Maggio I ).)

Collective bargaining continued off and on throughout the next few years. The UFW filed separate charges alleging bad faith bargaining and unlawful rehiring practices for various times during 1979 through 1981 by Vessey and Maggio, respectively. These complaints were heard separately by ALJs and then reviewed by the ALRB.

Based on earlier bargaining conduct for different complaint periods than those involved in this case, the Board found both Vessey and Maggio failed to bargain in good faith. (Admiral Packing Company, et al. (Dec. 14, 1981) 7 ALRB No. 43 (Admiral ) and Maggio I, supra, 8 ALRB No. 72.) This court consolidated petitions for review in Admiral and Vessey & Company, Inc. (Dec. 15, 1981) 7 ALRB No. 44 (Vessey I ), a case adopting Admiral 's classification of the ongoing strike as an unfair labor practice (ULP) strike and determining Vessey unlawfully refused to reinstate returning strikers after their unconditional offers to return to work were received by Vessey December 4, 1979.

In Carl Joseph Maggio, Inc. v. Agricultural Labor Relations Bd. (1984) 154 Cal.App.3d 40, 72, 201 Cal.Rptr. 30 (Carl Maggio ), we determined the Board's finding of bad faith bargaining for the period between February 28, 1979, through August 8, 1979, was unsupported by the record, reversed [210 Cal.App.3d 640] iAdmiral and remanded Vessey I to the Board for reconsideration in light of Carl Maggio.

The Board subsequently determined the reinstatement rights of Vessey's striking lettuce and weed and thin workers were violated because Vessey had failed to show it had hired permanent replacements for them. (Vessey & Company, Inc. (Feb. 28, 1985) 11 ALRB No. 3, pp. 3-5 (Vessey II ).)

Meanwhile, Maggio I was also remanded to the Board for reconsideration in light of Carl Maggio with the resultant finding there was no bad faith bargaining by Vessey or Maggio between February 21 and December 31, 1979. (Joe Maggio, Inc., et al. (Dec. 23, 1985) 11 ALRB No. 35 (Maggio II ).)

At this same time, the complaints here against Vessey and Maggio for the period of late December 1979 through March 1981 were proceeding through the administrative review process. They were consolidated for hearing, along with complaints against two other agricultural employers, Colace Brothers, Inc. and Martori Brothers

Distributors, and heard by an ALJ at various dates throughout 1981 and 1982. The consolidated complaint was amended four times. Because Colace was granted a prehearing severance motion to proceed separately, and Martori does not petition for review, we do not concern ourselves with the charges against them

The fourth amended complaint filed April 24, 1981, raised four main areas of violation: (1) it charged Vessey and Maggio with bad faith bargaining from December 7, 1979, to the present; (2) it charged both with partial or total shutdown of operations in Imperial Valley without bargaining with the union about the decision to shut down and its effect in order to avoid their obligation to bargain in good faith and in order to discriminate against their seniority lettuce workers for their union activities; (3) it charged Vessey with illegally subcontracting or transferring bargaining unit work to its alter ego and/or its joint employer, Cortaro Farms in Arizona, in order to avoid good faith bargaining and to discriminate against its seniority lettuce workers; and (4) it charged Vessey and Maggio with failing and refusing to rehire unfair labor practice strikers or, in the alternative, as to Maggio, economic strikers, who unconditionally offered to return to work.

The complaint was amended again, January 12, 1982, to allege, in the alternative, Vessey's workers were economic strikers.

After hearing, the ALJ issued its decision on February 7, 1983, finding Vessey and Maggio had continued in the ongoing bad faith negotiations [210 Cal.App.3d 641] found in Admiral and Maggio I and had failed and refused to reinstate unfair labor practice strikers who had made unconditional offers to return to work. The ALJ, however, found the shutdowns lawful and that general counsel for the ALRB had not proved its charge against Vessey on its alter ego and/or joint employer theories and there was no jurisdiction to hear the charge.

The parties excepted to the ALJ's findings and decision. The Board, now aware of the fact the ALJ relied on Admiral and Maggio I which had been remanded for redetermination, asked the parties to file supplemental briefs regarding the effect of Carl Maggio on the present charges. On October 23, 1987, the Board determined Vessey and Maggio had engaged in lawful bargaining but violated the Act by failing to treat the returning strikers' offers to return to work in a nondiscriminatory fashion. In making its determination, the Board...

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