Petitioners Reply Brief — Abatti Farms, Inc. v. Agricultural Labor Relations Board

fats >-Supreme Court, uS.

i)

| “TITLED

«OST «2A 1983

No. 83-190 A ex ANDER = STEVAS,

CLERK

IN THE |

Supreme Court of the United States

October Term, 1983

ABATTI FARMS, INC. AND ABATTI PRODUCE, INC.

“a Petitioners,

AGRICULTURAL LABOR RELATIONS BOARD AND

UNITED FARM WORKERS OF AMERICA. AFL-CIO.

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of the State of California

PETITIONERS’ REPLY BRIEF

RICHARD A. PAUL

EDWARD J. MCINTYRE

DANIEL G. LAMB, JR.

GRAY, CARY, AMES & FRYE

2100 Union Bank Building

San Diego, California 92101

(619) 699-2843

JAMES O. HEWITT

JOSEPH L. MARSHALL

HEWITT, SULLIVAN & MARSHALL

1010 Second Avenue

Suite 2121

San Diego, California 92101

(619) 239-2121

Attorneys for Petitioners

I.

I].

ITI.

i

TABLE OF CONTENTS

THE ALRB’S RELIANCE ON KREMER IS

og We - : en Pe rma se ae APE

THE ALRB’S CONTENTION THAT

SUMMARY DISPOSITION OF A PETITION

FOR REVIEW OF A DECISION OF THE ALRB

IS A RULING ON THE MERITS IS A

TRANSPARENT ATTEMPT TO PROCURE

DENIAL OF THIS PETITION. IN FACT, THE

ALRB AGREES WITH THE CONTENTIONS

WRMSt CON PAUSE UE 6 ook kis eee eee

CAREC SIMEES oon eG ke sb oa an eee

APPENDIX

m- Ww

il

TABLE OF AUTHORITIES

CASES

Kremer v. Chemical Construction Corp

EERE CEUEED 5 6 Gan sn een ccesnes

United States v. Utah Construction and

Mining Co. 384 U.S. 394 (1966) ........

ADMINISTRATIVE DECISIONS

Abatti Farms, Inc. and United Farm

Workers. 9 ALRB No. 59 (1983) ........

High and Mighty Farms and United Farm

Workers, 8 ALRB No. 100 (1982)

N.Y. Exec. Law § 290, et seg. (McKinney

OT gt a A ae ae

N.Y. Exec. Law § 298 (McKinney 1972)...

tO

to

IN THE

Supreme Court of the United States

October Term, 1983

ABATTI FARMS, INC. AND ABATTI PRODUCE, INC.

US. Petitioners,

AGRICULTURAL LABOR RELATIONS BOARD AND

UNITED FARM WORKERS OF AMERICA, AFL-CIO,

Respondents

On Petition for a Writ of Certiorari

to the Supreme Court of the State of California

PETITIONERS’ REPLY BRIEF

2

I

THE ALRB’S RELIANCE ON KREMER IS MISPLACED.

The ALRB suggests that Kremer v. Chemical Construc-

tion Corp., 456 U.S. 461 (1982), is “dispositive of the issues”

raised by Abatti. Respondent’s Brief in Opposition, at 6.

In Kremer, the Court was not presented with, and did

not decide, the issues presented in this case, for the very

reason that judicial review under the New York Human

Rights Law! there at issue resulted in a judgment, on the

merits of the appeal, which was entitled to res judicata effect

under New York law. 456 U.S. at 466-467. The judgment of

the Supreme Court, Appellate Division, in Kremer, was

issued pursuant to N.Y. Exec. Law § 298 (McKinney 1972),

which mandates that the petition “shall be heard and deter-

mined” and that the court issue its “judgment and order” on

the merits of the cause before it. Kremer received that which

Abatti did not, and that which Abatti contends is constitu-

tionally compelled: An adjudication of the merits of its

appeal.-

1. N.Y. Exec. Law § 290, et seg (McKinney 1972).

2. The full text of the Appellate Division's judgment in Kremer is

reproduced as Appendix A. The judgment recites that the court read the

papers, heard the litigants, deliberated on the merits of the case before it,

and confirmed the ruling below.

3

THE ALRB’S CONTENTION THAT SUMMARY

DISPOSITION OF A PETITION FOR REVIEW OF A

DECISION OF THE ALRB IS A RULING ON THE

MERITS IS A TRANSPARENT ATTEMPT TO PROCURE

DENIAL OF THIS PETITION. IN FACT, THE ALRB

AGREES WITH THE CONTENTIONS RAISED BY

ABATTI.

The ALRB argues for purposes of this petition that sum-

mary denials of petitions for review of ALRB decisions con-

stitute rulings on the merits, analogous to this Court's

decisions summarily dismissing appeals, or summary denials

of review of decisions of California constitutional agencies

vested with judicial power. Respondent's Brief in Opposi-

tion, at 9-15.

In its own adjudicated cases,’ the ALRB concedes that

summary denials of petitions to review its decisions are

nothing more than a refusal by the Court of Appeal to exer-

cise discretionary jurisdiction, and do not constitute affir-

mances on the merits:

We noted in High and Mighty Farms (1982) 8 ALRB

No. 100, that the appeal process under the National

Labor Relations Act (NLRA) differs from the appeal

process under the Agricultural Labor Relations Act

(ALRA). Orders issued by the NLRB are not self-

executing, and the NLRB must apply to the appro-

priate United States Court of Appeals to secure

enforcement of its orders. Any person aggrieved by a

final order of the NLRB may seek review of the

order. Unlike the NLRA, the ALRA provides for

discretionary review of our orders by a California

Court of Appeal, rather than review as of right under

3. The full texts of the two cited ALRB opinions are lengthy. Abatti

has quoted those portions material to the issue presented. Abatti would be

pleased to provide full texts if the Court desires.

4

the NLRA. Thus, under the ALRA, when a court of

appeal declines to exercise jurisdiction by denying a

petition for review, the status of the case is as if no

appeal had been filed, and this Board retains juris-

diction to modify and enforce its remedial Order.

(High and Mighty Farms, supra, 8 ALRB No. 100

citing Tex-Cal Land Management, Inc. v. ALRB

(1979) 24 Cal.3d 335.) Abatti Farms, Inc. and

United Farm Workers, 9 ALRB No. 59, at 21

(ALRB, October 7, 1983).

In High and Mighty Farms and United Farm Workers,

8 ALRB No. 100, at 14 (1982), the Board held:

The Court of Appeal denied the petition for review

in the instant case, and it has therefore been neither

affirmed nor reversed by the court. According to the

Supreme Court’s Tex-Cal decision, the present sta-

tus of this case is as if the appeal had never been

filed. Since the Court of Appeal’s denial of the peti-

tion for review is not a decree or order of the court,

our original remedial Order in this case is intact, and

our power to modify the Order is the same as it

would have been had there been no appeal. [Foot-

notes omitted.|

III

CONCLUSION

Where it served its interest‘ the ALRB has recognized

that summary denials are not judicial acts of affirmance or

4. High and Mighty, supra, dealt with the power of the ALRB, after

summary denial of review, to modify its order to increase the interest rate

on make whole awards. In that context, the Board found that there was no

res judicata bar to further action on its part since no order or decree was

entered by the court of appeal affirming or reversing the Board’s decision.

See text, supra. The Board thus advances the anomalous position that

summary denials are on the merits for aggrieved parties, but not on the

merits for the Board itself.

5

reversal and do not entail the entry of an order or decree

which has preclusive effect. The effect of a summary denial is

to leave the case as if no petition had ever been filed. Unlike

Ruben Kremer, Abatti has not had its day in court to have the

merits of its case decided under the appropriate standard for

review.”

DATED: October 12, 1983

Respectfully submitted,

\ RICHARD A. PAUL

EDWARD J. MCINTYRE

DANIEL G. LAMB, JR.

GRAY, CARY, AMES & FRYE

2100 Union Bank Building

San Diego, California 92101

(619) 699-2843

JAMES O. HEWITT

JOSEPH L. MARSHALL

HEWITT, SULLIVAN & MARSHALL

1010 Second Avenue

Suite 2121

San Diego, California 92101

(619) 239-2121

Attorneys for Petitioners

5. United States v. Utah Construction and Mining Co., 384 U.S. 394

(1966), relied on by the ALRB, holds only that finality may be accorded

administrative findings of fact supported by substantial evidence. 384 U.S.

at 399, 400, 404, 410. It does not hold, as the ALRB suggests, that unre-

viewed agency orders may be accorded the same res judicata effect on issues

of law as judgments of a court. Abatti does not quarrel with according

finality to agency findings of fact so long as they are determined by a court

to be supported by substantial evidence.

APPENDIX A

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION

FIRST DEPARTMENT

Ata term of the Appellate Division of the Supreme Court

held in and for the First Judicial Department in the County

of New York, on February 27, 1978

Present-Hon. Francis T. Murphy, Jr., Presiding Justice

Samuel J. Silverman

Herbert B. Evans

Arnold L. Fein

Arthur Markewich Justices

1877

[M-4560}

RUBIN KREMER,

—against—

THE STATE DIVISION ON HUMAN RIGHTS,

THE STATE HUMAN RIGHTS APPEAL BOARD

and CHEMICAL CONSTRUCTION CORPORATION,

RESPONDENTS

The above-named petitioner having presented a petition

to this Court praying for an order, pursuant to Section 298 of

the Executive Law, setting aside and annulling the determi-

nation of respondent The State Human Rights Appeal Board

dated November 25, 1977, which affirmed an order of the

respondent The State Division on Human Rights dated

April 28, 1977, dismissing petitioner’s complaint and deter-

mining there was no probable cause to believe that respon-

dent Chemical Construction Corporation engaged in the

unlawful discriminatory practice complained of, and respon-

dent Chemical Construction Corporation having submitted a

memorandum in answer to said petition,

Now, upon reading and filing the notice of application,

with proof of due service thereof, the petition of Rubin

Kremer, verified December 6, 1977, and the memorandum of

Rubin Kremer, all read in support of the application, and the

memorandum of Messrs. Layton and Sherman in opposition

to said application, and after hearing Mr. Rubin Kremer,

appearing pro se, for the application, and Messrs. Layton and

Sherman opposed; and due deliberation having been had

thereon,

It is unanimously ordered that the determination of the

respondent, The State Human Rights Appeal Board, be and

the same hereby is confirmed, without costs and without

disbursements.

ENTER:

JOSEPH J. LUCCHI

Clerk

Source: Joint Appendix, Kremer v. Chemical Construction

Corp., No. 80-6045 (October Term, 1981) at 23-26.