The opinion
PANELLI, J.
I respectfully dissent.
The majority upholds the imposition of the make-whole remedy based on the board’s conclusion that Lindeleaf’s refusal to bargain was not in good faith and, specifically, that Lindeleaf did not have a reasonable litigation posture at the time it refused to bargain. By the time the matter reached this court, however, the board had been proved wrong. A majority on the panel of the Court of Appeal which heard Lindeleaf’s complaints agreed with the grower and annulled the ALRB certification of the union as the exclusive bargaining representative.
Although this court may disagree with the Court of Appeal, as we have in this case, on the merits of the questions presented for review, I do not believe we can any longer rely on Lindeleaf’s “litigation posture”—the board’s assessment of Lindeleaf’s prospects for success in the judicial forum—as the basis for imposing the drastic remedy of make-whole. As the matter now stands, it is incongruous to say that Lindeleaf pursued judicial relief in bad faith—that it sought review of “frivolous” election challenges as a dilatory tactic, for the purpose of delay.
*882 Absent any other justification in the record, the grant of make-whole relief is inappropriate.
Lucas, J., and Low (Harry W.), J., * concurred.
Presiding Justice, Court of Appeal, First District, Division Five, assigned by the Acting Chairperson of the Judicial Council.