Tri-Fanucchi Farms v. Agricultural Labor Relations Board

Filed 11/27/17 (this opn. follows companion case S227243 also filed 11/27/17)

IN THE SUPREME COURT OF CALIFORNIA

TRI-FANUCCHI FARMS, )

)

Petitioner, )

) S227270

v. )

) Ct.App. 5 F069419

AGRICULTURAL LABOR RELATIONS )

BOARD, )

)

Respondent; )

(

UNITED FARM WORKERS OF )

AMERICA, )

)

Real Party in Interest. )

____________________________________)

In 2012, Tri-Fanucchi Farms (Tri-Fanucchi) refused to bargain with the

United Farm Workers of America (the UFW), the labor union that its employees

had elected in 1977 as their bargaining representative under the Agricultural Labor

Relations Act (the ALRA or the Act). Tri-Fanucchi argued that the union had

abandoned its employees for more than two decades and thus forfeited its status as

bargaining representative. Consistent with its longstanding practice, the

Agricultural Labor Relations Board (the Board or the ALRB) rejected the

employer’s abandonment defense and determined that Tri-Fanucchi’s refusal

constituted an unfair labor practice under the ALRA. The Board then ordered Tri-

Fanucchi to pay make-whole relief under Labor Code section 1160.3, which is

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intended in part to compensate employees for employer-caused delays in the

collective bargaining process. (All undesignated statutory references are to the

Labor Code.) The Court of Appeal affirmed the Board’s rejection of Tri-

Fanucchi’s abandonment defense. But the Court of Appeal reversed the Board’s

make-whole relief award, reasoning that Tri-Fanucchi’s litigation “furthered the

broader purposes of the ALRA” because no appellate court had expressly ruled on

the abandonment issue presented here.

For the reasons set forth in Gerawan Farming, Inc. v. Agricultural Labor

Relations Board (Nov. 27, 2017, S227243) __ Cal.5th __ (Gerawan), we hold that

the Court of Appeal correctly rejected Tri-Fanucchi’s assertion of an abandonment

defense. As we explain in Gerawan, the ALRA does not permit an employer to

“unilaterally declare that it will refuse to engage with the union because it believes

the union has abandoned its employees.” (Gerawan, at p. __ [p. 44].) As to the

issue of make-whole relief, we hold that the Court of Appeal did not accord the

Board sufficient deference and improperly exercised the Board’s remedial

authority. We thus reverse in part the Court of Appeal’s judgment.

I.

Tri-Fanucchi is a farming business located in Kern County. It employs

approximately 35 permanent employees and hires several hundred seasonal

employees through various labor contractors.

On October 21, 1977, after a secret ballot election, the Board certified the

UFW as the exclusive bargaining representative of Tri-Fanucchi’s employees.

Several days later, the UFW initiated collective bargaining negotiations. Tri-

Fanucchi responded by refusing to bargain, purportedly to seek judicial review of

the union’s election. The following year, the UFW filed an unfair labor practice

charge alleging that Tri-Fanucchi’s refusal to bargain violated the ALRA. The

charge was dismissed after Tri-Fanucchi reversed its position and agreed to begin

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negotiations. (See Tri-Fanucchi Farms (1986) 12 ALRB No. 8, p. 2 (hereafter

ALRB 1986 Decision).)

Some initial bargaining sessions occurred after the UFW was certified. But

between May 1979 and July 1981, “no communications between the parties took

place and no negotiations were scheduled.” (ALRB 1986 Decision, supra, 12

ALRB No. 8 at p. 2.) In July 1981, after the UFW requested to resume

bargaining, Tri-Fanucchi conducted an employee “poll” to ascertain whether they

desired to be represented by the UFW. As a result of this poll, Tri-Fanucchi

concluded that the UFW had lost the support of a majority of its employees, and so

the company again refused to bargain with the union. (Id. at p. 3.) The UFW filed

several unfair labor practice charges against Tri-Fanucchi, which the Board

ultimately sustained. Finding that Tri-Fanucchi’s refusal to bargain “was without

justification or arguable legal support,” the Board awarded make-whole relief

under section 1160.3. (ALRB 1986 Decision, at p. 9.) In an unpublished opinion,

the Court of Appeal affirmed both the Board’s findings that Tri-Fanucchi

committed unfair labor practices and its make-whole relief award.

According to Tri-Fanucchi, the company informed the UFW that it was

willing to bargain in 1988. The UFW initially represented that it would schedule

negotiations after the union’s lead negotiator returned from vacation, but the UFW

never responded and no dates were ever set. Tri-Fanucchi claims that the UFW

then made no effort to communicate with the employer or to represent its

employees for the next 24 years. The UFW disputes these claims, asserting that it

maintained contact with the employees during this time period and even

represented them on nonbargaining matters. Because the Board ruled that an

employer cannot raise an abandonment defense as a matter of law, it took no

evidence on Tri-Fanucchi’s abandonment claim and simply assumed that the facts

Tri-Fanucchi alleged were true.

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On September 28, 2012, the UFW sent Tri-Fanucchi a formal request to

restart bargaining. Tri-Fanucchi responded with a letter stating that “the UFW

has . . . abandoned the bargaining unit and is no longer the valid collective

bargaining representative of its employees.” Further, Tri-Fanucchi said that

because the question whether a union can lose its status as bargaining

representative through abandonment had “never been conclusively addressed” by

the courts, it would refuse to bargain “to obtain judicial review of the status of the

UFW.” The UFW urged Tri-Fanucchi to reconsider and said its refusal to bargain

was “in clear bad faith” because relevant ALRB precedent rejecting abandonment

was “so clear.”

After Tri-Fanucchi did not retreat from its position, the UFW filed unfair

labor practice charges with the Board in early 2013, alleging that Tri-Fanucchi

violated the ALRA by refusing to bargain and to provide requested information.

The Board’s general counsel thereafter filed an administrative complaint against

Tri-Fanucchi alleging that the company’s actions violated section 1153,

subdivisions (a) and (e), and seeking make-whole relief for the benefit of Tri-

Fanucchi’s employees. (Tri-Fanucchi Farms (2014) 40 ALRB No. 4, p. 3

(hereafter ALRB 2014 Decision).) In its answer, Tri-Fanucchi admitted to the

factual allegations but claimed as a defense, among other things, that the UFW had

abandoned its status as bargaining representative. (Id. at p. 4.) Tri-Fanucchi also

claimed that its refusal to bargain was in good faith for the purpose of obtaining

judicial review of an important labor relations issue.

The case was set for an administrative law judge (ALJ) hearing on October

21, 2013. Before the hearing, the Board’s general counsel filed a motion to

exclude any evidence relating to Tri-Fanucchi’s abandonment defense, contending

that the ALRA did not permit such a defense. The ALJ granted the motion,

holding that even if the facts Tri-Fanucchi sought to prove were true, they did not

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establish a defense to bargaining under the ALRA. In light of Tri-Fanucchi’s

admissions, the ALJ found that Tri-Fanucchi’s refusal to bargain violated the

ALRA. The ALJ further ordered that Tri-Fanucchi pay make-whole relief to its

employees for the period from October 19, 2012, when Tri-Fanucchi made clear

its refusal to bargain with the UFW, until the date that it commenced good faith

bargaining with the union. (ALRB 2014 Decision, supra, 40 ALRB No. 4 at

pp. 4–7.)

The Board issued its decision on April 23, 2014, largely affirming the

ALJ’s rulings. The Board explained that its “previous decisions have been very

clear that, under the ALRA, the fact that a labor organization has been inactive or

absent, even for an extended period of time, does not represent a defense to the

employer’s duty to bargain.” (ALRB 2014 Decision, supra, 40 ALRB No. 4 at

p. 8.) “[E]xcept in cases where the union disclaims interest in representing the

bargaining unit or becomes defunct,” the Board continued, “the union remains

certified until removed or replaced through the ALRA’s election procedures,

regardless of any bargaining hiatus or union inactivity that may have occurred.”

(Ibid.) The Board likewise affirmed the ALJ’s order awarding make-whole relief.

Because Tri-Fanucchi’s position on the abandonment defense was “contrary to

over 30 years of Board precedent holding that abandonment is not a defense to the

duty to bargain,” the Board concluded that Tri-Fanucchi’s “position cannot be said

to further the policies and purposes of the ALRA.” (Id. at p. 18.)

The Court of Appeal upheld the Board’s rejection of Tri-Fanucchi’s

abandonment defense as a “reasonable interpretation and application of the

ALRA.” Under the ALRA, the court concluded, Tri-Fanucchi “was not entitled to

refuse to bargain with UFW based on UFW’s past failings or inactivity, and such

conduct did not create a defense to bargaining, whether labeled as abandonment or

otherwise.” But, holding that “the Board was clearly wrong in its legal conclusion

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that [Tri-]Fanucchi’s litigation efforts in this matter did not further purposes and

policies of the ALRA,” the Court of Appeal reversed the Board’s order imposing

make-whole relief. Despite the Board’s settled interpretation that the ALRA

provided no abandonment defense to bargaining, the court believed that “the

question has remained to a significant degree unsettled and controversial” because

no “appellate court” had weighed in on the precise issue. In the court’s view, Tri-

Fanucchi’s “litigation plainly furthered the broader purposes of the ALRA to

promote greater stability in labor relations by obtaining an appellate decision on

this important issue.”

Tri-Fanucchi petitioned for review of the Court of Appeal’s rejection of its

abandonment defense, and the Board sought review of the Court of Appeal’s

reversal of the make-whole relief. We granted both petitions for review.

II.

The Court of Appeal concluded that the UFW’s allegedly “lengthy period

of inactivity did not defeat [Tri-]Fanucchi’s duty to engage in bargaining with that

union upon request.” We affirm this conclusion in light of our holding in

Gerawan that “an employer may not defend against a union’s [mandatory

mediation and conciliation] request by challenging the union’s certification as

bargaining representative on the basis of abandonment.” (Gerawan, supra, __

Cal.5th at p. __ [p. 44].) An employer “has multiple options to defend against

‘what may appear to be a derelict or defunct incumbent union,’ ” including

“fil[ing] an unfair labor practice charge against a certified union representative

who ‘refuse[s] to bargain collectively in good faith.’ ” (Ibid.) “What an employer

cannot do under the ALRA is unilaterally declare that it will refuse to engage with

the union because it believes the union has abandoned its employees. That is true

whether in response to an initial demand to bargain, a renewed demand to bargain,

or a request to refer the parties to mandatory mediation and conciliation. In all

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cases, the ALRA reserves the power to select the union representative to the

employees and labor organizations alone.” (Ibid.)

Tri-Fanucchi’s arguments in favor of an abandonment defense restate those

we rejected in Gerawan. The only new contention raised by Tri-Fanucchi is that

the Board has “repeatedly recognized” the abandonment theory in earlier

decisions. But Tri-Fanucchi misstates the Board’s analysis in these decisions. As

the Board explains, these decisions used the terms “abandonment” and

“totally ‘absent from the scene’ ” to describe situations in which the union was

“unwilling or unable” to represent the employees — i.e., union disclaimer or

defunctness. (See Bruce Church, Inc. (1991) 17 ALRB No. 1, pp. 9–10; Dole

Fresh Fruit Company (1996) 22 ALRB No. 4, pp. 9–13.) Nothing in these

decisions referred to the type of inactivity-based defense that Tri-Fanucchi

attempts to raise here. Indeed, in Dole Fresh Fruit Company, the Board expressly

refrained from recognizing the broader “concept of ‘abandonment.’ ” (Dole Fresh

Fruit Company, at p. 15.)

In sum, the Court of Appeal correctly upheld the Board’s order rejecting

Tri-Fanucchi’s abandonment defense.

III.

We now consider whether the Court of Appeal improperly reversed the

Board’s determination that Tri-Fanucchi should pay its employees make-whole

relief because of its refusal to bargain with the UFW.

The ALRA authorizes the Board to grant certain remedies, including make-

whole relief, when it determines that a party has engaged in unfair labor practices.

(§ 1160.3.) “Make-whole relief is a compensatory remedy that reimburses

employees for the losses they incur as a result of delays in the collective

bargaining process. [Citation.] The remedy is designed to give agricultural

employees the type of economic benefits they would have received if the parties

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had reached a timely agreement.” (George Arakelian Farms, Inc. v. Agricultural

Labor Relations Bd. (1989) 49 Cal.3d 1279, 1286, fn. 3 (Arakelian).) Section

1160.3 provides that the Board shall issue an order “requiring such person to cease

and desist from such unfair labor practice, to take affirmative action, including

reinstatement of employees with or without backpay, and making employees

whole, when the board deems such relief appropriate, for the loss of pay resulting

from the employer’s refusal to bargain, and to provide such other relief as will

effectuate the policies of this part.” (§ 1160.3, italics added.) “The words in

[section] 1160.3 granting the Board the power to order make whole relief are

words which indicate that the imposition of the remedy is discretionary . . . [¶] not

per se.” (F & P Growers Assn. v. Agricultural Labor Relations Bd. (1985) 168

Cal.App.3d 667, 679–680 (F & P Growers).)

The Legislature “inten[ded] that the ALRB serve as ‘one of those agencies

presumably equipped or informed by experience to deal with a specialized field of

knowledge, whose findings within that field carry the authority of an expertness

which courts do not possess and therefore must respect.’ ” (Tex-Cal Land

Management, Inc. v. Agricultural Labor Relations Bd. (1979) 24 Cal.3d 335, 346,

quoting Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 488.) Where

the Board relies on its “specialized knowledge” and “expertise,” its decision “is

vested with a presumption of validity.” (Arakelian, supra, 49 Cal.3d at p. 1292.)

That presumption has even more force when courts review the Board’s exercise of

its remedial powers, which “are necessarily broad.” (Carian v. Agricultural Labor

Relations Bd. (1984) 36 Cal.3d 654, 673 (Carian).) “ ‘Because the relation of

remedy to policy is peculiarly a matter for administrative competence, courts must

not enter the allowable area of the Board’s discretion and must guard against the

dangers of sliding unconsciously from the narrow confines of law into the more

spacious domains of policy.’ ” (Id. at p. 674.) One federal court discussing the

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National Labor Relations Board (NLRB), on which the ALRB is modeled, has

observed that “ ‘[t]he breadth of agency discretion is, if anything, at zenith when

the action assailed relates primarily not to the issue of ascertaining whether

conduct violates the statute, or regulations, but rather to the fashioning of policies,

remedies, and sanctions.’ ” (Fallbrook Hosp. Corp. v. National Labor Relations

Bd. (D.C. Cir. 2015) 785 F.3d 729, 735.) We have recognized that “the drafters of

the ALRA intended to broaden, not diminish, the ALRB’s remedial authority” as

compared to that of the NLRB. (Highland Ranch v. Agricultural Labor Relations

Bd. (1981) 29 Cal.3d 848, 865 (Highland Ranch).)

In light of the Legislature’s clear intent to confer broad remedial powers on

the Board, the Board’s orders imposing remedies are only “ ‘subject to limited

judicial review.’ ” (Carian, supra, 36 Cal.3d at p. 674.) Thus, “the [B]oard’s

remedial order ‘should stand unless it can be shown that the order is a patent

attempt to achieve ends other than those which can be fairly said to effectuate the

policies of the Act.’ ” (Ibid., quoting Virginia Electric Co. v. Board (1943) 319

U.S. 533, 540; see Nish Noroian Farms v. Agricultural Labor Relations Bd.

(1984) 35 Cal.3d 726, 745 [“The Board, an expert agency, has broad discretion to

fashion remedies to effectuate the purposes of the act. Courts will interfere only

where those remedies are patently unreasonable under the statute.”].) Tri-

Fanucchi acknowledges that courts owe the Board “considerable deference” when

reviewing its determination of “which remedies would effectuate the policies of

the ALRA.”

We first considered the ALRA’s make-whole remedy in J. R. Norton Co. v.

Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1 (J. R. Norton). Because the

ALRA does not allow for immediate judicial review of a Board order certifying a

union, employers may refuse to bargain, and thereby commit an unfair labor

practice, simply in order to obtain such review. This kind of refusal has been

9

called a “ ‘technical’ refusal to bargain.” (Id. at p. 27.) Soon after the ALRA’s

enactment in 1975, the Board imposed a “blanket rule” applying the make-whole

remedy in all such “technical refusal to bargain” cases. (Id. at pp. 27–28.) In J. R.

Norton, we held that that the Board cannot award make-whole relief as a per se

remedy for technical refusals to bargain. (Id. at p. 39.) Doing so “eviscerates

important ALRA policy and fundamentally misconstrues the nature of and

legislative purpose behind such relief.” (Id. at p. 29.) Although “make-whole

relief is appropriate when an employer refuses to bargain for the purpose of

delaying the collective bargaining process,” we said the Board’s blanket rule

“place[d] burdensome restraints on those who legitimately seek judicial resolution

of close cases in which a potentially meritorious claim” regarding a union election

could be made. (Id. at pp. 31–32.) We instead adopted the following standard:

“the Board must determine from the totality of the employer’s conduct whether it

went through the motions of contesting the election results as an elaborate pretense

to avoid bargaining or whether it litigated in a reasonable good faith belief that the

union would not have been freely selected by the employees as their bargaining

representative had the election been properly conducted.” (Id. at p. 39.)

Although J. R. Norton’s standard applies to cases involving technical

refusals to bargain, its reasoning that the Board should not impose make-whole

relief on a per se basis and should instead “examine the particular facts or

circumstances of each case to determine [its] ‘appropriateness’ ” is more broadly

applicable. (F & P Growers, supra, 168 Cal.App.3d at p. 680; see id. at p. 681.)

The Board has relied on this reasoning to develop a standard, known as the F & P

Growers standard, for determining whether make-whole relief is appropriate in

cases involving nontechnical refusals to bargain. Under this standard, the Board

“consider[s] on a case-by-case basis the extent to which the public interest in the

employer’s position weighs against the harm done to the employees by its refusal

10

to bargain. Unless litigation of the employer’s position furthers the policies and

purposes of the act, the employer, not the employees, should ultimately bear the

financial risk of its choice to litigate rather than bargain.” (Id. at p. 682.)

The parties agree that Tri-Fanucchi’s refusal to bargain was not technical,

and neither party disputes that the F & P Growers standard applies here. We have

implicitly endorsed the F & P Growers standard before (see Arakelian, supra, 49

Cal.3d at pp. 1294–1295) and now hold that the F & P Growers standard applies

to nontechnical refusals to bargain like Tri-Fanucchi’s refusal in this case.

The Court of Appeal recognized that the Board “explicitly followed” the

F & P Growers standard in its decision. Nevertheless, in setting aside the Board’s

remedial order, the Court of Appeal criticized the Board for basing its decision

“solely on its legal evaluation or value judgment that [Tri-]Fanucchi’s litigation of

the abandonment issue . . . did not further the policies and purposes of the ALRA.”

This “legal conclusion” was “clearly wrong,” the court said, because “the question

of how an appellate court would actually rule when confronted with the novel

situation of such long-term union absence or egregious inactivity (i.e., 24 years) as

alleged here was far from certain.” The court continued: “[T]he question has

remained to a significant degree unsettled and controversial. Against this larger

backdrop, it is clear to us that judicial review of the issue was reasonably

necessary and helpful to all parties concerned, including both unions and

agricultural employers, for the beneficial purpose of clarifying and/or confirming

the law. Therefore, [Tri-]Fanucchi’s advancement of this litigation plainly

furthered the broader purposes of the ALRA to promote greater stability in labor

relations by obtaining an appellate decision on this important issue.”

We conclude that the Court of Appeal, in determining that Tri-Fanucchi’s

litigation “plainly further the broader purposes of the ALRA,” improperly

assumed the Board’s remedial authority. Despite recognizing that the Board

11

should be given “due deference,” the Court of Appeal did not give the Board’s

make-whole relief order any deference. Rather, the court determined that the

Board’s “legal conclusion” was “clearly wrong” and then independently

determined that make-whole relief was inappropriate in this case.

But the ALRA expressly authorizes the Board to impose make-whole relief

“when the board deems such relief appropriate.” (§ 1160.3, italics added.) In

assessing whether make-whole relief is appropriate, the Board has adopted a

standard that asks whether litigation of the employer’s position furthers the

ALRA’s policies and purposes. The Board’s decision to impose make-whole

relief is thus best understood as an exercise of the Board’s discretionary policy

authority, not a legal conclusion subject to de novo review. (See Bixby v. Pierno

(1971) 4 Cal.3d 130, 150–151 [An agency’s “statutory discretion . . . would be

entirely abrogated” if we were to hold that discretionary policy determinations

“necessarily constitute questions of law for the courts to decide. . . . [T]he courts

should not substitute their own judgment for that of the agency.”].) Whether

make-whole relief is appropriate in this case requires not only evaluation of the

abandonment question but also consideration of countervailing concerns, such as

previous interactions between the employer and the union as well as “the harm

done to the employees by [the employer’s] refusal to bargain.” (F & P Growers,

supra, 168 Cal.App.3d at p. 682.) Because the Legislature assigned the

responsibility to evaluate and balance these concerns in the first instance to the

Board, the Court of Appeal’s independent review was improper.

Of course, the Board must determine on a case-by-case basis whether

make-whole relief is appropriate; it may not award such relief without exercising

its discretion. (F & P Growers, supra, 168 Cal.App.3d at pp. 681–682.) But there

is no evidence to support Tri-Fanucchi’s assertion that the Board imposed make-

whole relief here “in a conclusory fashion simply because [Tri-Fanucchi] lost its

12

appeal before the Board.” Rather, the Board explained that make-whole relief was

appropriate “[b]ased upon [its] review of the facts and circumstances and the

equities of this case.” (ALRB 2014 Decision, supra, 40 ALRB No. 4 at p. 20,

italics added.) Indeed, although the Board rejected Tri-Fanucchi’s arguments that

delays caused by the UFW and the ALRB made it inappropriate to award make-

whole relief, both the Board’s order and the Board Chairman’s special

concurrence made clear that different facts could make out “a delay that would

warrant denying the remedy.” (Id. at p. 22 (conc. opn.).) The Board’s order

assessed the particular circumstances of this case and was not made in a

conclusory fashion.

The Court of Appeal opined that only a published appellate decision in the

context of a “long-term union absence” was sufficient to “settle” the question

whether the ALRA permits employers to raise an abandonment defense. To be

sure, “the courts are the ultimate arbiters of the construction of a statute.”

(California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 11.) And

there may be cases in which an employer’s challenge to the Board’s settled

construction of the ALRA in order to obtain judicial review sufficiently advances

the Act’s policies and purposes. But we have repeatedly held that courts should

“accord significant weight and respect to the long-standing construction of a law

by the agency charged with its enforcement.” (In re Dannenberg (2005) 34

Cal.4th 1061, 1082; see Highland Ranch, supra, 29 Cal.3d at p. 859 [the Board’s

interpretation of the ALRA “ ‘must be given great weight’ ”].) Yet the Court of

Appeal gave no weight to the Board’s interpretation that the ALRA does not allow

for an abandonment defense, even though it acknowledged that the Board has

consistently applied that interpretation for three decades.

Nor can the court’s conclusion be squared with its own observation that the

Board’s rejection of Tri-Fanucchi’s abandonment defense was “consistent with

13

how California appellate courts have construed the ALRA.” The Court of Appeal

cited several published appellate decisions, including Montebello Rose Co. v.

ALRB (1981) 119 Cal.App.3d 1, and F & P Growers, supra, 168 Cal.App.3d 667,

for the principle that an employer’s duty to bargain under the ALRA continues

until the union is replaced or decertified, and then explained how the Board’s

position on abandonment is simply a further application of those principles. But in

reversing the Board’s make-whole relief award, the Court of Appeal claimed that

the abandonment question “has remained to a significant degree unsettled and

controversial.” The Court of Appeal’s straightforward application of relevant

precedent to reject Tri-Fanucchi’s abandonment defense seems in tension with its

conclusion that the issue was unsettled and in need of clarification.

Although J. R. Norton cautioned against placing “burdensome restraints on

those who legitimately seek judicial resolution of close cases” (J. R. Norton,

supra, 26 Cal.3d at p. 32), the longevity and uniformity of relevant authority

suggests that the abandonment question was not especially close at the time Tri-

Fanucchi refused to bargain. Moreover, J. R. Norton’s discussion of judicial

review is limited to the context of that case. J. R. Norton did not involve an

employer seeking judicial review in order to bring clarity to the law. Rather, it

concerned employers’ ability to litigate objections to particular union elections or

certifications in a judicial forum. The “especially compelling” need for judicial

review in J. R. Norton must be understood in light of the purpose of permitting

employers to contest specific administrative actions that would otherwise be

immunized from judicial review. (Id. at p. 34; see id. at pp. 30–32.)

The F & P Growers standard does not focus solely on whether an appellate

decision would bring greater clarity to the law. Instead, it requires the Board to

weigh the extent to which the employer’s litigation advances the ALRA’s

purposes and policies against the risks and harms caused by such litigation and its

14

attendant delays to the collective bargaining process. (F & P Growers, supra, 168

Cal.App.3d at p. 682.) Against the backdrop of Tri-Fanucchi’s previous refusals

to bargain, earlier findings that the employer had committed unfair labor practices,

and an unbroken line of ALRB decisions rejecting the abandonment defense, the

Board reasonably determined that make-whole relief was appropriate here to

compensate Tri-Fanucchi’s employees for the delays incurred by Tri-Fanucchi’s

refusal to bargain and its subsequent litigation.

To hold that make-whole relief is inappropriate unless there is a published

appellate decision on the exact issue raised by the employer would risk

undermining the ALRA’s purpose of bringing stability to agricultural labor

relations by encouraging employers to refuse to bargain and instead to litigate

disputed issues. If parties were allowed to regularly circumvent Board decisions

by obtaining relief in court, “the Board would be replaced by ad hoc

determinations by already overcrowded courts. The legislative effort to bring

order and stability to the collective bargaining process would be thwarted. The

work of the Board would be effectively impaired, its decisions similar in

impression to that of a tinkling triangle practically unnoticed in the triumphant

blare of trumpets.” (United Farm Workers v. Superior Court (1977) 72

Cal.App.3d 268, 272.) Tri-Fanucchi’s briefing in this court makes clear this

danger: It contends that “until such time as [Tri-]Fanucchi raised the question of

law before the Court of Appeal as to whether long term and total abandonment by

the bargaining representative was a defense to an employer’s duty to bargain, the

Board’s statutory construction and legal analysis of the abandonment defense

under the ALRA was not binding or final.”

Accepting the Court of Appeal’s rationale would thwart the Legislature’s

design to give the Board, not the courts, “exclusive primary jurisdiction over all

phases of the administration of the Act as regards unfair labor practices.” (United

15

Farm Workers v. Superior Court, supra, 72 Cal.App.3d at p. 271.) Because the

Board’s order was not “ ‘a patent attempt to achieve ends other than those which

can be fairly said to effectuate the policies of the Act’ ” (Carian, supra, 36 Cal.3d

at p. 674), the Court of Appeal should have upheld the Board’s remedial order as

an appropriate exercise of its discretion under the ALRA. In concluding

otherwise, the court exceeded the “ ‘limited judicial review’ ” applicable to the

Board’s order. (Ibid.)

16

CONCLUSION

For the reasons above, we reverse the Court of Appeal’s judgment

reversing the Board’s award of make-whole relief. In all other respects, we affirm

the Court of Appeal’s judgment and remand for further proceedings consistent

with our opinion.

LIU, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

KLINE, J.*

* Presiding Justice of the Court of Appeal, First Appellate District, Division

Two, assigned by the Chief Justice pursuant to article VI, section of the California

Constitution.

17

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Tri-Fanucchi Farms v. Agricultural Labor Relations Board

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 236 Cal.App.4th 1079

Rehearing Granted

__________________________________________________________________________________

Opinion No. S227270

Date Filed: November 27, 2017

__________________________________________________________________________________

Court:

County:

Judge:

__________________________________________________________________________________

Counsel:

Sagaser, Watkins & Wieland, Howard A. Sagaser, William M. Woolman, Ian B. Wieland and Allie E.

Wieland for Petitioner.

J. Antonio Barbosa, Santiago Avila-Gomez, Paul M. Starkey, Todd M. Ratshin and Scott P. Inciardi for

Respondent.

Martínez Aguilasocho & Lynch, Mario Martínez, Thomas P. Lynch and Edgar I. Aguilasocho for Real

Party in Interest.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Howard A. Sagaser

Sagaser, Watkins & Wieland

7550 North Palm Avenue, Suite 100

Fresno, CA 93711

(559) 421-7000

Scott P. Inciardi

Agricultural Labor Relations Board

1325 J Street, Suite 1900-B

Sacramento, CA 95814

(916) 653-3741

Mario Martínez

Martínez Aguilasocho & Lynch

P.O. Box 1998

Bakersfield, CA 93303

(661) 859-1174