# J. R. Norton Co. v. Agricultural Labor Relations Board > California Court of Appeal · June 15, 1987 · 192 Cal. App. 3d 874 URL: https://www.frixlaw.com/law-library/cases/9718757 ## Case - **Full name:** J. R. NORTON COMPANY, Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, AFL-CIO, Real Party in Interest - **Court:** California Court of Appeal - **Decided:** June 15, 1987 - **Citations:** 192 Cal. App. 3d 874; 238 Cal. Rptr. 87; 1987 Cal. App. LEXIS 1821 - **Precedential status:** Published - **Opinion:** Concurring in part by Kaufman - **Judges:** Rickles, Kaufman - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9718757 ## Opinion text KAUFMAN, J.,Concurring and Dissenting. I concur in the judgment and in all portions of the opinion except those portions of part I dealing with the res judicata effect to be given the finding of condonation in the decision in 8 ALRB No. 89 and dealing with the Lu-Ette formula. As to those portions of part I, I dissent. Res Judicata I do not agree either (1) that it is necessary to decide whether a res judicata effect is to be given to the condonation finding in 8 ALRB No. 89 *910 or (2) that if that question were reached, any res judicata effect should be given that decision in this review. First, as I understand it, the majority purports to treat as res judicata only the employer’s asserted condonation of the 1979 Salinas work stoppage. Otherwise, the majority concludes there is no substantial evidence of several other elements necessary to a determination of an unfair labor practice on the basis of the employer’s failure to rehire the 1979 work stoppage participants. Since substantial evidence is lacking as to several of the other necessary elements, there is no need to decide that the condonation finding in 8 ALRB No. 89 is to be treated as res judicata. It need only be said that “assuming arguendo condonation of the 1979 Salinas work stoppage is established by res judicata, there is no substantial evidence of several other elements necessary to a determination of an unfair labor practice.” Secondly, were the res judicata question properly reached, in the unique circumstances presented here I do not believe it proper to give any res judicata effect to the decision in 8 ALRB No. 89. Although it makes no difference to the outcome of this particular case, giving res judicata effect to the decision in 8 ALRB No. 89 produces the anomalous and unacceptable result that as to one significant issue, a decision by the Board ousts this court of its statutory duty and authority to review another decision of the board in a case in which this court had already assumed jurisdiction and undertaken to review the matter before the other Board decision became final and in which finality resulted not from review on the merits but by virtue of the discretionary denial by another Court of Appeal of a writ of review. Such a possibility is but an invitation to mischief. The doctrine of res judicata, including the principle of collateral estoppel, is a judicially created mechanism to avoid burdening the administration of justice with multiple litigation of the same dispute or of the same issue between disputants. When in a rare circumstance the doctrine comes into irreconcilable conflict with more important public policies, it must give way. (Greenfield v. Mather (1948) 32 Cal.2d 23, 35 [ 194 P.2d 1 ] [questioned but not overruled in Slater v. Blackwood (1975) 15 Cal.3d 791, 796 ( 126 Cal.Rptr. 225 , 543 P.2d 593 )]; Hight v. Hight (1977) 67 Cal.App.3d 498, 503-504 [ 136 Cal.Rptr. 685 ].) Original and final jurisdiction, except for the possibility of the grant of a hearing in the California Supreme Court, over review of final decisions of the ALRB is vested in the California Courts of Appeal. (Lab. Code, § 1160.8.) Such original and exclusive jurisdiction to judicially review the decisions of an administrative agency import a measure of responsibility to guard against arbitrary administrative action and insure fair and reasonable *911 administrative decisions. (See Universal Camera Corp. v. Labor Bd. (1951) 340 U.S. 474, 489-490 [ 95 L.Ed. 456, 468 , 71 S.Ct. 456 ]; George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1980) 111 Cal.App.3d 258, 266 [ 168 Cal.Rptr. 537 ]; Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd. (1979) 93 Cal.App.3d 922, 930-931 [ 156 Cal.Rptr. 152 ]; see also J. R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 32-33 [ 160 Cal. Rptr. 710 , 603 P.2d 1306 ].) This judicial check on the possibility of arbitrary administrative action is far more significant to the administration of justice than invariable adherence to the judicially created doctrine of res judicata. The Lu-Ette Formula The majority concludes that a provision for interest on back wages ordered in a make-whole order is not a judgment, notes that the employer does not contend “that a back-pay award is a loan or forbearance or account on demand [szc],” and holds that therefore the constitutional limitation on interest rates applicable to all other persons and agencies in this state unless expressly exempted (Cal. Const., art. XV, § 1, subd. (2)) does not apply to the rate of interest an employer may be ordered to pay on a back-pay award. I agree that the interest here involved is not interest on a judgment. However, whether contended or not, I am not at all certain that interest on an award of back wages is not a “forbearance of any money, goods, or things in action” as those words have been expansively interpreted by the decisions. In any event, however, I am thoroughly persuaded that the allowable rate of interest an employer may be ordered to pay in connection with a back-pay award made as part of a make-whole order is the legal rate binding on all other persons and agencies in the state not expressly exempted. This is so for two reasons: (1) because the interest on a back-pay award is nothing more or less than prejudgment interest which is limited in this state to the legal rate; and (2) because a make-whole order must be designed to make the employee whole, not to give to the employee more than he or she would have received in the absence of the unfair labor practice and not to punish the employer. The interest ordered on a back-pay award from the time of the unfair labor practice to the time of the make-whole order is clearly prejudgment interest. (See Mass v. Board of Education (1964) 61 Cal.2d 612, 624-625 [ 39 Cal.Rptr. 739 , 394 P.2d 579 ]; Civ. Code, § 3287, subd. (a).) The allowable rate of interest on prejudgment interest is the legal rate. (Cal. Const., art. XV, § 1, subd. (2); McConnell v. Pacific Mutual Life Ins. Co. (1962) 205 Cal.App.2d 469, 481 [ 24 Cal.Rptr. 5 ]; In re Consol. Pretrial Proceedings in *912 Air West (N.D. Cal. 1977) 436 F.Supp. 1281, 1286 ; Cutten v. Allied Van Lines, Inc. (C.D. Cal. 1972) 349 F.Supp. 907, 912-913 , affd. 514 F.2d 1196 .) The Board’s authority to make a back-pay order and, in turn, to order the payment of interest on back pay derives exclusively from Labor Code section 1160.3 which reads in relevant part: “If, upon the preponderance of the testimony taken, the board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, the board shall state its findings of fact and shall issue and cause to be served on such person 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.” The Board’s exercise of power to command affirmative action and to “provide such other relief as will effectuate the policies of’ the ALRA must be remedial, not punitive. (Sunnyside Nurseries, Inc. v. Agricultural Labor Relations Bd., supra, 93 Cal.App.3d at p. 940 , quoting in part from Edison Co. v. Labor Board (1938) 305 U.S. 197, 236 [ 83 L.Ed. 126, 143 , 59 S.Ct. 206 ].) “[I]t is not enough to justify the Board’s requirements to say that they would have the effect of deterring a person from violating the Act. That argument proves too much, for if such a deterrent effect is sufficient to sustain an order of the Board, it would be free to set up any system of penalties which it would deem adequate to that end. [fl] ... [A]ffirmative action to ‘effectuate the policies of this Act’ is action to achieve the remedial objectives which the Act sets forth.” (Republic Steel Corp. v. Labor Board (1940) 311 U.S. 7, 12 [ 85 L.Ed. 6, 10 , 61 S.Ct. 77 ].) There is no evidence of any kind that the value to the employees who are to be made whole of the loss of use of the wages of which they were deprived would amount to the rate of interest assessed against the employer under the Lu-Ette formula. Thus, the assessment of interest in accordance with that formula cannot be justified under the Board’s make-whole power; the order is clearly punitive and, therefore, invalid. One must sympathize with the proposition that unfair labor practices are to be discouraged, but as the United States Supreme Court pointed out in Republic Steel, the Board is not authorized to impose penalties to deter unfair labor practices. *913 Appendix A Maria Ramirez’s testimony: “Q. How long did you work for J. R. Norton Company in 1979? “A. From the first day that the machine started until we were told that the machine had broken down. “Q. Can you give us an approximate time—how much time was that? “A. About three weeks. “Q. Now, was the—if I understand correctly, were you laid off when the machine broke? “A. They told us that they would call us back when the machine was fixed. “Q. When you say ‘they’, who do you mean? “A. The foreman. And in the office we went several times to ask when we would be called back. “Q. Specifically, who was the foreman or foremen who told you that you were laid off? “A. Jose, but I do not know his last name. “A. Was this Jose a foreman? “A. Yes. “ Mr. Sato : Can we get a stipulation that the Jose named was a foreman in the wrapping crew in May of 1979? “ Mr. Hersh : No. I don’t know. “ Mr. Sato : No? “ Administrative Law Officer Weiss : Could you describe Jose? “ The Witness : (through Interpreter) Yes. He is a man that is not very tall or very short, and he is quite older.” “Q. Looking at the second page, is this your signature? “A. Yes. “Q. When you made this declaration, were you familiar with—I mean, was it near the time the events described happened? “A. Yes. “Q. Okay. Did Pena ever tell you that he was going to kill you? “A. No. “Q. How about Maria Perez? Did she ever tell you she was going to kill you? “A. No. “Q. And Jose Ramirez? “A. No. “Q. Did you—did you ever talk to Jose Ramirez after you stopped working for Norton? “A. Yes. “Q. And where was that? “A. On Main. “Q. Okay. Do you know if he was still working for the company? “A. He told me that he was working in the ground crews. “ Administrative Law Officer Weiss : Who was that that she [sic] was working for? “ Mr. Hersh : Jose Ramirez. “Q. Did you ever ask Jose Ramirez if you could cut? “A. Yes. “Q. Okay. Did you ask him more than once?” Lerma’s testimony: “Q. Now, at that time when Don Jose, your foreman, said this, do you remember if this was before or after the election for the crew representatives? *914 “A. It was before. “Q. How long did you work for J. R. Norton Company in 1979? “A. About three weeks. “Q. What happened after those three weeks? “A. They said that the machine had broken down. So then they said when the machine is fixed we will call you, and they took all our telephone numbers. “Q. When you say— “A. Of all of us. “Q. Excuse me. When you say ‘he’, are you referring to the foreman, Don Jose? “A. Yes, Mr. Jose. “Q. Were you ever called back? “A. No. “Q. Did you ever go back and ask for your job? “A. Yes. “Q. When? “A. At the time that they gave us our last check after the machine was broken down, I went to the office and I said to the secretary—I don’t know English, but I took my daughter to interpret for me, and I was told, ‘There is no work now. The machine has not been fixed. You will be called.’ I went about three times. “Q. To the office? “A. Yes. “Q. At that time when the machine broke down, was the entire crew laid off? “A. No. “Q. How many—approximately how many of the crew were laid off? “A. Only five or six persons were changed to another machine. “Q. Did you ask your foreman why those people were changed to another machine? “A. Yes. “Q. And was this Don Jose? “A. Yes. “Q. And what did Don Jose say? “A. That because they had more seniority— “Q. Was there anything else he said at that time? “A. No. He only said, T will call you when the machine is fixed.’ “Q. During the time that you were working for J. R. Norton in 1979, had you heard— were there other times that you heard your foreman mention the union, U.F.W.? “A. Yes. “Q. How many times was it—were there? “A. One time when the representative had not gone, he got close to the conveyor belt to throw in the lettuce and he said, ‘Don’t you believe the union; we don’t want union here. There’s no union here. The company is not negotiating with anyone. You work in peace, and those of you that don’t want to—’” Lujan’s testimony: “Q. Now, when the machine broke, I think you testified you weren’t on the machine when it broke, is that right? “A. I don’t recall. “Q. When the machine broke, what happened? Were you sent home for the day or what? “A. Yes. And Don Jose took our names and addresses and telephone numbers, and told us when the machine was fixed, he would call us. “Q. Did he give you any idea as to when the machine might be fixed? “A. He told us that in a week. “Q. Did you talk to him again about it later? “A. Yes. “Q. When, how much later? *915 “A. On that Friday when they were coming so I could get my check, I asked him when the machine was going to start. And if it wasn’t going to start up real quick, for him to give me that paper for unemployment. “Q. This is what you said to him, now? “A. Because I needed money to support my family, or my work. I needed one or the other. “Q. What was your intention then, to apply for unemployment if the machine wasn’t going to be fixed and you weren’t going to be recalled? “A. Yes. “Q. So you asked for what, a layoff slip or termination slip of some kind? “A. I never asked for unemployment, and I was not given the...” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718757. Public record. Not legal advice.