William Dal Porto & Sons, Inc. v. Agricultural Labor Relations Bd., AFL-CI

Citation163 Cal.App.3d 541,210 Cal.Rptr. 241
Decision Date18 December 1984
Docket NumberR,AFL-CI
CourtCalifornia Court of Appeals
PartiesWILLIAM DAL PORTO & SONS, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent, UNITED FARM WORKERS OF AMERICA,eal Party in Interest. Civ. 22717.
Nomellini & Grilli, Dante John Nomellini and Daniel A. McDaniel, Stockton, for petitioner

Manuel M. Medeiros and Cathy Christian, Sacramento, for respondent.

Wendy Sones, Sacramento, for real party in interest.

SIMS, Justice.

By this petition, William Dal Porto & Sons, Inc., seeks statutory review (Lab.Code, § 1160.8) 1 of a decision of the Agricultural Labor Relations Board (ALRB or Board) which found that William Dal Porto & Sons, Inc. (petitioner, Dal Porto or employer), committed unfair labor practices in violation of section 1153, subdivisions (a) and (e) of the Agricultural Labor Relations Act of 1975 (ALRA or Act) (Lab.Code, § 1140 et seq.) by bargaining in bad faith with regard to issues of union security and successorship, and by unilaterally raising the wages of certain employees. We affirm the Board's finding of bad faith bargaining with respect to issues of union security and the unilateral wage increase. However, we annul the Board's determination that Dal Porto bargained in bad faith on the issue of successorship. In light of our annulment of a bad-faith determination, we remand to the Board for reconsideration of its imposed remedial order.

FACTUAL AND PROCEDURAL BACKGROUND

Dal Porto is a closely held family corporation, engaged in production of various types of agricultural produce on approximately 1,227 acres in San Joaquin County. One-eighth of its land is owned by the family outright and the remainder is held pursuant to a long-term lease. William Dal Porto, Sr., is president of the corporation and his sons Bill and Bob are vice-president and secretary-treasurer, respectively. Dal Porto's business office is located in Bob's home; Bob's wife, Pat Dal Porto, works in the office part-time as the company bookkeeper.

One of Pat Dal Porto's functions is to make any necessary deductions from an employee's paycheck, including the amount to be deducted in repayment of loans which Dal Porto extends to some of its workers.

Dal Porto employs five or six full-time workers ("steadies"), and a seasonal work force of up to 20 to 25 weeders or thinners (general labor). The weeding and thinning work usually begins in late May and concludes in mid-July.

The United Farm Workers Union of America, AFL-CIO (UFW or union) was certified as the exclusive bargaining representative of Dal Porto's agricultural employees on December 11, 1975. Bargaining commenced on January 27, 1976, and a number of negotiating sessions were held through August 22, 1979.

After the August 1979 session, the parties did not meet again until April 1, 1981. Between April 1, 1981, and October 21, 1981, Dal Porto and the UFW met 16 times in their attempt to conclude a contract. Dal Porto was represented throughout the negotiations by Attorney Dante Nomellini, and the primary, although not the exclusive, negotiator for the UFW was Art Rodriguez.

On charges filed by the UFW, the Board's Delano regional director issued a complaint alleging, as relevant here, that Dal Porto had failed or refused to bargain in good faith ( § 1153, subd. (e) ) during the negotiating sessions conducted between April and October 1981. An administrative law officer (ALO) heard the complaint and concluded that Dal Porto had engaged in "surface bargaining" in negotiating issues concerning wage increases, successorship and union security and had unilaterally increased The Board rejected the ALO's finding that Dal Porto acted in bad faith with respect to wage proposals, but agreed that its "bargaining conduct with respect to issues of successorship and union security, together with its granting of a unilateral wage increase ... provides sufficient evidence of a failure to bargain in good faith." The Board adopted the ALO's recommendation ordering Dal Porto to "Make whole its present and former agricultural employees for all losses of pay and other economic losses they have suffered as a result of [petitioner's] failure and refusal to bargain in good faith with the UFW ... the period of said obligation to extend from April 1, 1981 ... until such time as [petitioner] commences good faith bargaining...." 3

the wages of certain employees unlawfully. 2

I

We first address the appropriate standard of review of the Board's decision. The right to judicial review guaranteed by section 1160.8 exists to insure that the Board operates within the statutory powers conferred. (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 39-40, 160 Cal.Rptr. 710, 603 P.2d 1306.) This requires courts to assume the responsibility for assessing the reasonableness and fairness of Board decisions. (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 930, 156 Cal.Rptr. 152.)

The Board's factual findings, including those of petitioner's intent and state of mind, are conclusive if supported by substantial evidence on the record considered as a whole. ( § 1160.8; Triple E Produce Corp. v. Agricultural Labor Relations Bd. (1983) 35 Cal.3d 42, 47-48, 196 Cal.Rptr. 518, 671 P.2d 1260.) Review of the entire record requires assessment not only of evidence supporting the Board but also of " 'other relevant facts of record which rebut or explain that evidence.' " (Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 727, 175 Cal.Rptr. 626, 631 P.2d 60.) The reviewing court may neither reweigh the evidence nor substitute its judgment with respect to questions of credibility. (Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 20-21, 173 Cal.Rptr. 856; see also Rivcom Corp. v. Agricultural Labor Relations Bd. (1983) 34 Cal.3d 743, 756-757, 195 Cal.Rptr. 651, 670 P.2d 305; National Labor Relations Board v. Link-Belt Co. (1941) 311 U.S. 584, 597, 61 S.Ct. 358, 365, 85 L.Ed. 368, 378.)

In cases such as this one, where the Board is called upon to draw inferences from the parties' conduct during negotiations, the standard for court review of the Board's determinations is deferential. In Penasquitos Village, Inc. v. N.L.R.B. (9th Cir.1977) 565 F.2d 1074, the Ninth Circuit Court of Appeals explained 4 that "Deference is accorded the [NLRB's] factual conclusions for a different reason--Board members are presumed to have broad experience and expertise in labor-management relations. [Citation.] Further, it is the Board to which Congress has delegated administration of the Act. The Board, therefore, is viewed as particularly capable of drawing inferences from the facts of a labor dispute. Accordingly, it has been said that a Court of Appeals must abide by the Board's derivative inferences, if drawn from not discredited testimony, unless

those inferences are 'irrational,' [citation] 'tenuous' or 'unwarranted.' [Citation]." (P. 1079.)

II

Having these principles in mind, we turn to the Board's findings of bad faith bargaining.

The duty to bargain in good faith under the ALRA is set forth in subdivision (e) of section 1153, which provides in pertinent part: "It shall be an unfair labor practice for an agricultural employer to do any of the following: ... (e) To refuse to bargain collectively in good faith with labor organizations certified pursuant to the provisions ... of this part." 5

Section 1155.2, subdivision (a), defines good faith bargaining: "... to bargain collectively in good faith is the performance of the mutual obligation of the agricultural employer and the representative of the agricultural employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any questions arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession." (Emphasis added.)

The portion of section 1155.2 underscored is at the heart of the critically important distinction between "surface bargaining" and "hard bargaining." The former, which violates the Act's requirement that parties negotiate in good faith, is defined as " 'going through the motions of negotiating,' without any real intent to reach an agreement." (K-Mart Corp. v. N.L.R.B. (9th Cir.1980) 626 F.2d 704, 706.) "Hard bargaining," on the other hand, is found where a party genuinely and sincerely insists on provisions that the other party deems unacceptable, even though it may produce a stalemate. (Pease Co. v. N.L.R.B. (6th Cir.1981) 666 F.2d 1044, 1049, cert. den. 456 U.S. 974, 102 S.Ct. 2238, 72 L.Ed.2d 848; see also N.L.R.B. v. Tomco Communications, Inc. (9th Cir.1978) 567 F.2d 871.) As explained in Pease Co. v. N.L.R.B., supra, at page 1049, "good faith bargaining does not require that [a company] make proposals that are acceptable to [the union] .... A lack of good faith ... may be found only from 'conduct clearly showing an intent not to enter into a contract of any nature.' [Citation.]"

The problem in resolving a charge of bad faith bargaining is to "ascertain the state of mind of the party charged, insofar as it bears upon that party's negotiations." (Continental Insurance Company v. N.L.R.B. (2d Cir.1974) 495 F.2d 44, 48, emphasis added.) State of mind is a question not of law but of fact, and is most often established by circumstantial evidence. (See Rivcom Corp. v. Agricultural Labor Relations Bd., supra, 34 Cal.3d at p. 758, 195 Cal.Rptr. 651, 670 P.2d 305; Abatti Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 107 Cal.App.3d 317, 334, 165 Cal.Rptr. 887.) Absent evidence of...

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